Back Matter

Back Matter

Author(s):
Joseph Gold
Published Date:
December 1962
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    Originally published in July 1962.

    Quotations in the present article from the German and French cases are, of course, translations from the original language.

    Pp. 121–25, supra.

    81 S.Ct. 922(1961).

    81 S.Ct., p. 927.

    81 S.Ct., pp. 927–28.

    The Fund Agreement distinguishes between exchange controls and exchange restrictions. For example, under Article VI, Section 3, members may regulate capital transfers but not in such a way as to restrict payments for current transactions. This distinction in the treatment of the two categories means that, if a country wishes to restrict capital transfers, its controls may have to be applied to all transactions so as to segregate the one category from the other. Thus, controls may be applied to payments and transfers for current international transactions even though these payments and transfers may not be restricted under Article VIII, Section 2(a).

    81 S.Ct., p. 925.

    81 S.Ct., p. 928.

    This is, of course, literally true in the sense that the Fund Agreement does not deal at all with the question of who may be an heir or with other questions of inheritance as such. However, this was probably not the point that the United States intended to make. Presumably, the argument was that the Fund Agreement did not permit Yugoslavia to restrict the transfer of inheritances to US. heirs in the United States For a fuller statement of the arguments in the briefs, see p. 125, supra.

    Article XIX(i); “Payments for current transactions means payments which are not for the purpose of transferring capital, and includes, without limitation:

    • All payments due in connection with foreign trade, other current business, including services, and normal short-term banking and credit facilities;

    • Payments due as interest on loans and as net income from other investments;

    • Payments of moderate amount for amortization of loans or for depreciation of direct investments;

    • Moderate remittances for family living expenses.

    The Fund may, after consultation with the members concerned, determine whether certain specific transactions are to be considered current transactions or capital transactions.”

    81 S.Ct., p. 928.

    304 N.Y. 533, 110 N.E. (2d) 6 (1953). See p. 52, supra, and pp. 137–39. infra.

    215 N.Y.S. (2d) 3.

    N.Y. Civil Practice Act:

    Ҥ 902. In what actions attachment of property may be had. A warrant of attachment against the property of one or more defendants may be granted upon the application of the plaintiff, as specified in the next section, in any action for the recovery of a sum of money only.

    § 903. What must be showa to procure warrant of attachment. To entitle the plaintiff to such a warrant, he must show that a cause of action specified in the last section exists against the defendant, and, if the action is to recover damages for breach of contract, that the plaintiff is entitled to recover a stated sum, over and above all counter-claims known to him. He must also show that the defendant

    1. Is either a foreign corporation or not a resident of the state; …”

    215 N.Y.S. (2d), pp. 4–6.

    The brief supported this by reference to § 610 of the Restatement of the Law of Conflicts of Laws (“No action can be maintained on a right created by the law of a foreign state as a method of furthering its own governmental interests.”), and by the following argument:

    “… The reason for the public policy against enforcement of such claims is well illustrated by the present case. If plaintiff herein were to succeed in having this court enforce Brazilian foreign exchange regulations, the courts of New York, a world trade center, would be swamped with cases from the scores of nations having foreign exchange control laws, with which the inhabitants of this state do business. Foreign governments or their agencies would sue for dollars against Americans here rather than seek to fine or recover from their own residents in local currency.

    “Many of such exchange laws are extremely detailed and complicated. The exact extent and validity of such laws are many times questioned even within the foreign jurisdiction and if they were enforceable here, New York courts might have to decide the validity of such laws under foreign constitutions. For example, it appears arbitrary that coffee exporters should receive from Banco do Brasil, S.A., 90 cruzeiros for each United States dollar assigned to said Bank while the value of the dollar on the free market in Brazil is 220 cruzeiros … All this would not only increase the burden on the courts of New York but might also lead to embarrassment in the international relations of the United States.…”

    “… Plaintiff contends that the Perutz case could not have intended to apply Article VIII, Section 2(b) for the reason that it involved a pension claim and not an ‘exchange contract.’ The history of the development of the Bretton Woods Agreement indicates that the phrase ‘exchange contract’ was not intended to be used in a narrow sense but rather to cover any transaction having its basis in contract and involving exchange. (See Meyer, “Recognition of Exchange Controls after the International Monetary Fund Agreement,” 62 Yale Law Journal 867.) In speaking of the Perutz case, Meyer states that it involved an exchange contract ‘because the pension agreement was a deliberate contractual arrangement, enforcement of which was sought in dollars rather than in kronen.’ (p. 901)”

    216 N.Y.S. (2d) 669; 218 N.Y.S. (2d) 545 (June 6, 1961).

    Anderson v. N.V. Transandine, etc., 289 N.Y. 9 (1942). State of Netherlands v. Federal Reserve Bank, 79 F. Supp. 966 (1948), 99 F. Supp. 655 (1951), 201 F 2d 455 (2 Cir., 1953). Cf. the Ontario case, pp. 154–56, infra.

    Neue Juristische Wochenschrift, June 10, 1960, pp. 1101–03.

    See Ulrich Drobnig, “Die Anwendung des Devisenrechts der Sowjetzone durch westdeutsche Gerichte,” in Neue Juristische Wochenschrift, June 10, 1960, pp. 1088–93.

    Ernst Mezger in Revue Critique de Droit International Privé, Vol. L (1961), pp. 318–26.

    See also Rules M-3 through M-6 of the Fund’s Rules and Regulations.

    140 N.Y.S. (2d) 323 (1955). See pp.77–78, supra.

    140 N.Y.S. (2d), p. 326.

    Revue Critique de Droit International Privé, Vol. LI (1962), p. 67; Note by Yvon Loussouarn, p. 72. The decision of the lower court can be found in Journal du Droit International (Clunet), Vol. 85 (1958), pp. 1050–53.

    The Court of Appeals agreed that this did not oust the jurisdiction of the Dutch courts where the issue was the validity of the assignment itself rather than questions raised by the assignment.

    Annual Report of the Executive Directors, 1949, pp. 82–83; cf. pp. 12–13, supra.

    Pp. 82–86, supra.

    P. 96, supra.

    Juristenzeitung (Tubingen), Vol. 8 (1953), pp. 442–46; The Legal Aspect of Money (London, 2nd ed., 1953), p.382; p.84, supra.

    Pp. 113–15, supra.

    For a discussion of this argument, see pp. 61–62 and p. 85, supra.

    G. R. Delaume, “De l’élimination dea conflits de lois en matière monétaire réalisée par lea Statuts du Fonds Monétaire International et de ses limites,” Journal du Droit International (Clunet), Vol. 81 (1954), pp. 338–45.

    1960 A.C. 244, 255. Section 33(1) of the Act reads as follows: “It shall be an implied condition in any contract that, where, by virtue of this Act. the permission or consent of the Treasury is at the time of the contract required for the performance of any term thereof, that term shall not be performed except in so far as the permission or consent is given or is not required: Provided that this subsection shall not apply in so far as it is shown to be inconsistent with the intention of the parties that it should apply, whether by reason of their having contemplated the performance of that term in despite of the provisions of this Act or for any other reason….”

    Pasicrisie Luxembourgeoise (1957). pp. 36–39; pp. 94–96, supra.

    This proposition has a bearing on the following passage. p. 89. supra: “… In dealing with Article VIII, Section 2(b) most courts have taken confidence from the fact that the law of the member whose currency was involved under that provision was also the governing law under traditional private international law. There is probably no case so far in which a contract which was enforceable under what was found to be the governing law under private international law, was nevertheless declared unenforceable because of the provision, although it is significant that in the Hamburg case discussed in an earlier article the Court appears to have found it unnecessary to determine what was the governing law under traditional private international law. Moreover, in Iu re Sik’s Estate the Surrogate’s Court of New York found that the contract was unenforceable under New York law, the governing law, but nevertheless went on to consider the effect of Yugoslav exchange control regulations. However, it found that there was justification for not obtaining the license required by these regulations, and the enforceability of the contract was upheld.”

    220 N.Y.S. (2d) 903.

    Ibid., p. 904.

    Ibid., p. 904.

    (1961 29 D.L.R. (2d) 673.

    Ibid., pp. 710–11.

    Ibid., pp. 712–13.

    U.S. Department of State Publication 2187 (Conference Series 55), pp. 22—24.

    INDEX

    Page

    • Articles of Agreement of the International Monetary Fund

      • Art. I 17, 42

      • Art. IV 2, 4n, 32-35, 70-73, 125, 127, 130

      • Art. VI 15, 31, 40, 43-44, 114-15, 124-25, 130-31, 133, 142, 146

      • Art. VII 40, 42-45, 47, 123, 133, 142

      • Art. VIII 42-43, 45-47, 116, 125, 131n, 142, 147

      • Art. VIII, Sec. 2(b) 11-19, 28-31, 50-55, 60-66, 73-100, 102-18, 124, 134-54

      • Art. IX, Sec. 7 22-24, 55-58

      • Art. XI 65, 78, 123, 142

      • Art. XIV 15, 31n, 39, 41-44, 82, 115, 123, 124n, 133, 142

      • Art. XV 115n

      • Art. XVIII 12, 18, 20, 22-24, 28, 46-47, 50, 56-57, 61

      • Art. XIX 46n, 114n, 133n, 146

      • Art. XX 1-2, 12, 22n, 40, 42, 65n, 72, 114-15

    • Austria 109-12

    • Belgium 8-9, 30-32, 69-73, 79-82

    • Bibliography 67-68, 100-101

    • Blocked accounts 28-30

    • Bonds

      • Basis for redemption 6-8

    • Cable rates 20-26, 55-59

    • Canada 3-4, 32-36, 154-56

    • Capital controls 30-32, 114-15, 131n, 133, 146-47

    • Chile 7n, 126-27

    • Conversion of foreign currency 2-6

    • Cours force 74

    • Currency of compensation 126-27

    • Egypt 4-8, 14

    • Enemy property 78-79, 154-56

    • Exchange contracts

      • Definition 18,51-54,65,80-84,91-93,96,106,116-17,146,152

      • General Agreement on Tariffs and Trade 11n

      • See also Unenforceability of exchange contracts

    • Exchange control

      • Validity under public international law 37-49

    • Exchange control regulations 9-19,28-30,50-55,62-66,74-100,102-25,128-54

      • Certification by the Fund 99

    • Exchange rates 2-9

      • Gold clauses 3-4

      • Multiple 2-3

      • See also Par values

    • Exchange surrender requirements 135-39

    • France 143-53

    • Fund Agreement, see Articles of Agreement of the International Monetary Fund

    • Fund charges for gold transactions 32n

    • Fund Interpretations

      • Art. VIII, Sec. 2(b), June 14, 1949 12-13, 28, 50, 98-99

      • Art. IX, Sec. 7 22-23, 56

    • Fund Statement on Gold Policy, December 11, 1947 32-36

    • Fund Statement on Transactions in Gold at Premium Prices, June 18, 1947 4n

    • Germany, Federal Republic of 82-86, 90-94, 139-42

    • Gold

      • Clauses 3-6

      • Content of currency 6-9

      • Free market 5, 7-8

      • Fund charges for gold transactions 32n

      • Fund Statement on Gold Policy, December 11, 1947 32-36

      • Fund Statement on Transactions in Gold at Premium Prices, June 18, 1947. 4n

      • Price 5, 33-36, 69-73

      • Standard 7-8

      • Subsidies 32-36

      • Transactions 32n, 69-73

    • Hong Kong 87-90

    • Immunities, see Privileges and immunities

    • Inheritance and exchange control 121-25, 128-35

    • Insurance contracts 14, 30-32

    • International Court of Justice 37-49

    • International law

      • See Private international law;

        • Public international law

    • International organizations

      • International Refugee Organization 27

      • U.S. International Organizations Immunities Act 21, 26-27, 58-59

    • Luxembourg 94-96

    • Netherlands 10n, 112-21

    • Official communications 20-26, 55-59

    • Par values 2-9, 70-73

      • See also Exchange rates

    • Private international law

      • Exchange control 10-14, 75-83, 92, 96, 99, 109-10, 117, 144-45, 152

      • Proper law of the contract 16-17, 76, 88-89, 109-10, 144-45

    • Privileges and immunities 20-27, 55-59

      • U.S. International Organizations Immunities Act 21, 26-27, 58-59

    • Public international law

      • Exchange control 37-49

    • Public policy

      • and exchange control regulations 10-13, 28, 44-45, 50-52, 74, 76, 79, 90-91, 95-96, 113, 119, 138

    • Quasi-contract 93-94

    • Treaties 25, 37-49, 123, 129-32, 134

    • Unenforceability of exchange contracts 9-19, 28-30, 50-55, 60-66, 73-100, 102-21, 130-54

      • See also Exchange contracts

    • United Kingdom 2-3, 16-19, 79n, 94n, 150

    • United States 14-16, 20-30, 50-59, 74-79, 82n, 97-100, 102-108, 121-25, 128-39, 153-54

      • U.S. Dept. of Justice, Office of Alien Property 78-79

      • U.S. Federal Communications Commission 20-26, 55-59

    THE AUTHOR

    Mr. Joseph Gold is a graduate of the Law Schools of the Universities of London and Harvard. He has been a member of the staff of the Legal Department of the International Monetary Fund since October 1946, and has been the General Counsel of the Fund since March 1960. He has contributed numerous articles to law journals published in England, the United States, Canada, France, Belgium, and Germany.

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