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24 U.C. Davis Bus. L.J. 1 (2023-2024)

handle is hein.journals/ucdbulj24 and id is 1 raw text is: PARTY AUTONOMY LIMITATIONS IN SOVEREIGN LOAN CONTRACTS? ILIAS BANTEKAS* ABSTRACT It is argued that contracts entered into between sovereign states and the International Monetary Fund (IMF), or international development banks, do not satisfy party autonomy requirements that are otherwise expected in ordinary contracts. Sovereign loan agreements exhibit elements of compulsion, chiefly because of the imminent default, or actual default, of the borrowing state. This ultimately allows lenders and other states in alliance with lenders to impose conditions that are knowingly unconstitutional and injurious to the civil, political and socio-economic rights of the borrower's population. National courts should, at the very least, view the compulsory contracts in the same manner as ordinary contracts and assimilate the distressed sovereign to a distressed private party entering into a contract with a financial institution that is clearly the stronger of the two parties. TABLE OF CONTENTS ABSTRACT .......................................... .....................1 I. INTRODUCTION.................................... .....................2 II. THE WORLD BANK GROUP ..............................................4 III. SOVEREIGN ACCESS TO PRIVATE FINANCING. ............... ...............7 IV. INDEBTEDNESS AND DEBT RELIEF MECHANISMS ...........................8 V. HUMAN RIGHTS ISSUES: THE IMPORTANCE OF LINKAGES ......................9 VI. CONFLICTS OF INTEREST ...............................................11 VII. How CONDITIONALITIES UNDERMINE FUNDAMENTAL HUMAN RIGHTS .........13 VIII. CONTRACTUALIZATION OF CONDITIONALITIES ..........................14 IX. THE HUMAN RIGHTS IMPACT OF THE PRIVATE SECTOR IN THE INTERNATIONAL FINANCIAL ARCHITECTURE ............................16 X. IFIS AND ODIOUS/UNSUSTAINABLE DEBT ................ .................18 XI. LIMITATIONS TO PARTY AUTONOMY IN INTERNATIONAL CONTRACTS BY REFERENCE TO JUSTICE .............................................20 * Professor of Transnational Law, Hamad bin Khalifa University (Qatar Foundation) College of Law; Adjunct Professor of Law, Georgetown University, Edmund A Walsh School of Foreign Service and Senior Fellow, Institute of Advanced Legal Studies of the University of London

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