Papers by Ramon della Torre
RdT, 2018
The celebrations in honor of Bacchus, the Bacchanalia, have been represented in the visual art as... more The celebrations in honor of Bacchus, the Bacchanalia, have been represented in the visual art as the powerful union of the realms of wine and music. In particular, Bacchus’ multifarious symbolism is at the core of many works of art, ceremonial objects, musical compositions and choreographies, evoking contexts that are at times cultic, festive, moralizing, and even philosophical. This has been possible because Bacchus (or Dionysus, in Greek) personifies the synesthesia of all senses. In fact, not only is the god of drunkenness, freedom, intoxication, sensual pleasures, fertility, creative inspiration, and religious ecstasy; but he is also associated with love, dance and music. The popularity of these festivities were to be evoked through the centuries and in the Renaissance, with the rediscovery of classical art, the Bacchanalia often appeared in paintings famous still today. Out of the many Bacchanalia represented in visual arts through the centuries, I will discuss in this essay over the Bacchanals of Titian.
RdT
The absence of a robust and equitable legal framework for Sovereign Debt Restructuring generates ... more The absence of a robust and equitable legal framework for Sovereign Debt Restructuring generates important costs. Sovereigns with unsustainable debt often wait too long before they seek a restructuring, which is currently not within a predictable and transparent legal regime, therefore damaging creditors and debtors alike. This paper proposes a framework to address this problem from its origins: the im-paired liquidity of the sovereign debt securities in the financial markets stemming from the uncertainty on their safe status. This was allegedly the major cause of the recent financial crises and can be resolved through a clear and predictable legal regime, which assigns responsibilities to each of the many stake-holders involved in the management of the sovereign debt from its issuance to its restructuring. By enhancing coordination and transparency between domestic and international legal regimes (based on the subsidiary principle) through international multilateral organisations, this framework would intro-duce checks and balances both at a domestic and international level to enhance the necessary account-ability and trust from all stakeholders in order to shape a safer and more sustainable financial and legal regime.
This study addresses the incongruence in the need for capital flow measures (“CFMs”) as perceived... more This study addresses the incongruence in the need for capital flow measures (“CFMs”) as perceived by the IMF and their permissibility under international investment agreements (“IIAs”) and the WTO regime. CFMs would be essential to contain the effects of volatile capital flows – episodes of which may well be imminent as countries retract unconventional monetary policies and withdraw excess capital, making such analysis relevant.
In analysing the degree the permissibility of CFMs, this study focusses on the provisions of the US Model BIT, 2012 and the WTO GATS Agreement. With regard to the latter, this study finds that the GATS Agreement (pertaining to the capital account in exclusion to the GATT) allows for significant flexibilities with mandatory reference to the statistical analysis of the IMF. Separate from such flexibilities, the GATS also permits prudential measures with respect to financial services. However, the width of such ‘prudential carve-out’ and the degree to which it would draw from/be influenced by IMF prescriptions remains unclear.
With respect to the US Model BIT, 2012 (“2012 BIT”) this study finds that although a specific reference to the IMF remain lacking, there exist flexibilities permitting CFMs in limited circumstances. Specifically with respect to financial services, the 2012 BIT allows for a ‘prudential carve-out’, matching the GATS provision verbatim, and also a modified dispute resolution procedure as an additional safeguard.
In addition, the 2012 BIT specifically curtails the guarantee of free transfers by giving precedence to host state laws relating to, inter alia, securities, futures, options and derivatives. Separately, the 2012 BIT also contains a ‘self-judging’ essential security exception which would permit a broad range of CFMs if invoked in an economic crisis.
However, the above flexibilities under the 2012 BIT may not operate ideally owing to interpretive knots in currently prevailing jurisprudence further compounded by the conspicuous lack of precision on the need and timing for CFMs in a given economy.
Even so, the 2012 BIT is not as restrictive qua CFMs as certain other IIAs. Indeed, the only evident restriction on CFMs under the 2012 BIT is with respect to prudential/preventive CFMs impacting sectors other than financial services (which restriction is arguably similar in scope to that under the WTO regime).
The absence of a robust and equitable legal framework for Sovereign Debt Restructuring gener-ates... more The absence of a robust and equitable legal framework for Sovereign Debt Restructuring gener-ates important costs. Sovereigns with unsustainable debt often wait too long before they seek a restructuring, which is currently not within a predictable and transparent legal regime, therefore damaging creditors and debtors alike. This paper proposes a framework to address this problem from its origins: the impaired liquidity of the sovereign debt securities in the financial markets stemming from the uncertainty on their safe status. This was allegedly the major cause of the recent financial crises and can be resolved through a clear and predictable legal regime, which assigns responsibilities to each of the many stakeholders involved in the management of the sovereign debt from its issuance to its restructuring. By enhancing coordination and trans-parency between domestic and international legal regimes (based on the subsidiary principle) through international multilateral organisations, this framework would introduce checks and balances both at a domestic and international level to enhance the necessary accountability and trust from all stakeholders in order to shape a safer and more sustainable financial and legal regime.
Sanctions often induce political instability in the targeted state. They often do so by impairing... more Sanctions often induce political instability in the targeted state. They often do so by impairing those financial means deemed necessary to successfully fulfil the very same promoted policies which prompted the imposition of sanctions. Irremediably sanctions impose costs (often in terms of trade and financial losses) not only on the target, but also on the very same states that promoted them. This study considers a specific type of sanctions (the “Sovereign Debt Sanction”) aimed at directly imposing on the government to be sanctioned precisely pre-defined financial constraints. These constraints on the targeted state should be in the form of a stay on all its financial claims related to payments due on the foreign sovereign debt securities issued by other states which it detains often within its foreign-exchange reserves. The stay will prevent the target from initiating legal proceedings and enforcing all of its financial claims on foreign sovereign debt and if necessary the same claims could be forfeited. This measure (whose value can be precisely calculated upfront) would directly prevent the target from using well needed financial resources to finance its stated goals, unless it has access to more expensive (if available) form of credit. Implicitly connected to this sanction is the debt relief which will benefit the states either directly involved in the conflict against the target or just siding or being part of the group of states sending this sanction. Consequently, uniquely among sanctions, the sending states avail themselves of the financial resources (often vital during the hardship of a conflict) that otherwise should have been transferred to the targeted state, as noted by an authoritative scholar, Anna Gelpern , whose work is fundamental to this analysis.
How to turn a deficiency into a powerful arm.
The research’s purpose is to develop and corroborate an alternative model to calculate the compen... more The research’s purpose is to develop and corroborate an alternative model to calculate the compensation due to investors in the case of an investment in the host state which suffered from undue governmental actions. Thus far the proposed model is applicable only to the case of multinational corporations investing in the host state through the acquisition of a firm/subsidiary operating there. This model has been tested only once (appendix 1) by applying it to an arbitral case and comparing the ensuing recalculated compensation against the one actually granted to the investors. The goal of this research is therefore to develop the proposed method in order to extend its application to other categories of investors, as well as investments, including portfolio ones. The proposed model will be tested against the compensation actually granted to investors from a sufficiently significant and diversified case law. This comparison will identify trends which will help to assess the reasonability of the proposed model. If this model is successful, the amount of compensation due to investors will become predictable. Investors, even before filing a claim with an arbitral tribunal or a domestic court, will be able to predict with a significant degree of certainty what will be the maximum compensation they can obtain, if their claims are successful.
Books by Ramon della Torre
As of today, financial markets’ inefficiencies generate important costs unevenly spread across di... more As of today, financial markets’ inefficiencies generate important costs unevenly spread across different stakeholders. Meanwhile retail investors’ trust in the financial markets became pivotal in making the latter liquid and stable. Therefore, the absence of an equitable transparency framework internationally enforceable upon financial markets (with at its core the ‘financial consumers’ protection’) calls for en-hanced coordination between domestic and international legal regimes. Based on the subsidiarity principle, international multilateral organisations aim to design checks and balances to be introduced both at a domestic and international/regional level to enhance the necessary accountability and trust in the global financial markets from all stakeholders. These efforts lead to shape a safer, more sustainable and legally enforceable global financial regime. MiFID II brings these efforts into a legally enforceable regime applicable to the EU. As part of a process leading to a global financial regime, MiFID II like regimes already affect the financial regulations of third countries, leading to positive regulatory competition based upon principles progressively crystallized in broadly accepted standards. However, this positive trend was recently challenged at international fora (such as the WTO). Countries aiming to exploit the way of regulatory free-riding, rather than the one of compliance to the standards, alleged their illegal effects on certain home states’ financial services firms engaged in cross-border activities. Nevertheless the present ‘global financial inter-connectivity’ will result in more regulatory homogenization to the profit of the global ‘financial consumers’, following the developments of retail consumers’ protection laws, which have already been implemented in most of the OECD countries in a recent plethora of reforms.
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Papers by Ramon della Torre
In analysing the degree the permissibility of CFMs, this study focusses on the provisions of the US Model BIT, 2012 and the WTO GATS Agreement. With regard to the latter, this study finds that the GATS Agreement (pertaining to the capital account in exclusion to the GATT) allows for significant flexibilities with mandatory reference to the statistical analysis of the IMF. Separate from such flexibilities, the GATS also permits prudential measures with respect to financial services. However, the width of such ‘prudential carve-out’ and the degree to which it would draw from/be influenced by IMF prescriptions remains unclear.
With respect to the US Model BIT, 2012 (“2012 BIT”) this study finds that although a specific reference to the IMF remain lacking, there exist flexibilities permitting CFMs in limited circumstances. Specifically with respect to financial services, the 2012 BIT allows for a ‘prudential carve-out’, matching the GATS provision verbatim, and also a modified dispute resolution procedure as an additional safeguard.
In addition, the 2012 BIT specifically curtails the guarantee of free transfers by giving precedence to host state laws relating to, inter alia, securities, futures, options and derivatives. Separately, the 2012 BIT also contains a ‘self-judging’ essential security exception which would permit a broad range of CFMs if invoked in an economic crisis.
However, the above flexibilities under the 2012 BIT may not operate ideally owing to interpretive knots in currently prevailing jurisprudence further compounded by the conspicuous lack of precision on the need and timing for CFMs in a given economy.
Even so, the 2012 BIT is not as restrictive qua CFMs as certain other IIAs. Indeed, the only evident restriction on CFMs under the 2012 BIT is with respect to prudential/preventive CFMs impacting sectors other than financial services (which restriction is arguably similar in scope to that under the WTO regime).
Books by Ramon della Torre
In analysing the degree the permissibility of CFMs, this study focusses on the provisions of the US Model BIT, 2012 and the WTO GATS Agreement. With regard to the latter, this study finds that the GATS Agreement (pertaining to the capital account in exclusion to the GATT) allows for significant flexibilities with mandatory reference to the statistical analysis of the IMF. Separate from such flexibilities, the GATS also permits prudential measures with respect to financial services. However, the width of such ‘prudential carve-out’ and the degree to which it would draw from/be influenced by IMF prescriptions remains unclear.
With respect to the US Model BIT, 2012 (“2012 BIT”) this study finds that although a specific reference to the IMF remain lacking, there exist flexibilities permitting CFMs in limited circumstances. Specifically with respect to financial services, the 2012 BIT allows for a ‘prudential carve-out’, matching the GATS provision verbatim, and also a modified dispute resolution procedure as an additional safeguard.
In addition, the 2012 BIT specifically curtails the guarantee of free transfers by giving precedence to host state laws relating to, inter alia, securities, futures, options and derivatives. Separately, the 2012 BIT also contains a ‘self-judging’ essential security exception which would permit a broad range of CFMs if invoked in an economic crisis.
However, the above flexibilities under the 2012 BIT may not operate ideally owing to interpretive knots in currently prevailing jurisprudence further compounded by the conspicuous lack of precision on the need and timing for CFMs in a given economy.
Even so, the 2012 BIT is not as restrictive qua CFMs as certain other IIAs. Indeed, the only evident restriction on CFMs under the 2012 BIT is with respect to prudential/preventive CFMs impacting sectors other than financial services (which restriction is arguably similar in scope to that under the WTO regime).