Creditor protection in bank resolution: a case for international investment arbitration?

The Bank Recovery and Resolution Directive and the Single Resolution Mechanism build the new framework for bank resolution in the European Union. The article discusses the legal protection of creditors who may be affected by a resolution, particularly as the bail-in tool allows for a cancellation or conversion of debt. It is argued that besides claims before domestic courts, the ECJ and the ECtHR, investment arbitration can be a suitable forum for bank resolution disputes. As in financial disputes investment arbitration has often been preferred to domestic court proceedings, it is not unlikely that claims are brought in the context of resolution procedures. The trend of international investment law to become a framework for international financial disputes, is, however, based on a broad notion of investment in contemporary investment treaties. In the process of renegotiating or concluding new investment treaties, states (and the EU under Article 207 TFEU) have to be aware of this.