Front Matter

Front Matter

Author(s):
Joseph Gold
Published Date:
December 1982
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    The Fund Agreement in the Courts: Volume II

    US$17.50 (or the equivalent in most currencies)

    The Articles of Agreement of the International Monetary Fund have had many effects on public and private international law. Aspects of the Articles have been involved in litigation in the courts of member countries of the Fund and in international tribunals, A broader range of issues is covered by the discussion of jurisprudence in Volume II of The Fund Agreement in the Courts than in the first volume, which was published in 1962.

    Volume II includes an Introduction, in which the author discusses uniformity of interpretation and explains why the Fund has adopted few authoritative interpretations of the Articles. This attitude places more of the burden of interpretation on the courts and on legal advisors.

    The volume contains ten articles that have appeared in the Fund’s periodical Staff Papers, together with a pamphlet on the The Cuban Insurance Cases, published in the Fund’s Pamphlet Series, in which issues of the extraterritoriality of exchange control regulations are discussed.

    Volume II contains, in addition, five papers that have not been published hitherto. They deal with an analysis of the reactions of courts and authors in various countries to the relationship between the U.S. President’s freeze of assets in November 1979 and the Articles of the Fund; the diverse applications by courts of units of account defined in terms of gold; the combined effect on exchange control of the GATT and the Articles; and exchange control and arbitration. In addition, there is a new examination of the drafting history of Article VIII, Section 2(b), on the origins of which newly published material in Keynes’ Collected Writings has shed some light.

    Article VIII, Section 2(b), which requires that certain contracts shall be unenforceable, continues to provoke litigation in many countries on both old and new problems. The cases show that there are still numerous differences of opinion on some basic aspects of the provision, although widespread agreement has developed on some issues that were controversial in the past. The author discusses solutions for all problems involving the provision that have been litigated.

    Numerous other topics are discussed, including some that involve public policy, unjust enrichment, exchange control and tort, revenue laws, act of state, Eurodollar loans, and letters of credit. The cases deal also with many problems involving exchange rates, including some that result from the abrogation of the par value system by the Second Amendment of the Articles.

    THE FUND AGREEMENT IN THE COURTS: VOLUME II

    By the sume author

    The Fund Agreement in the Courts (1962)

    The Stand-By Arrangements of the International Monetary Fund:

    • A Commentary on Their Formal, Legal, and Financial Aspects (1970) And in Spanish: Los acuerdos de derechos de giro del Fondo Monetario Internacional (Stand-By Arrangements): Un comentario sobre aspectos formales, juridicos y financieros (1970)

    Voting and Decisions in the International Monetary Fund: An Essay on the Law and Practice of the Fund (1972)

    Membership and Nonmembership in the International Monetary Fund:

    • A Study in International Law and Organization (1974)

    Legal and Institutional Aspects of the International Monetary System:

    • Selected Essays (1979)

    Aspectos legales de la reforma monetaria internacional (1979)

    International Standard Book Number: 0-939934-17-5

    CONTENTS

    PREFACE

    This book consists of material published over a number of years as well as material hitherto unpublished. The published material has raised some editorial problems because there have been three versions of the Articles: the original Articles, the First Amendment, and the Second Amendment, which became effective, respectively, on December 27, 1945, July 28, 1969, and April 1, 1978.

    One problem was whether references to provisions of the Articles should be modified if they have a place in the present version of the Articles that differs from the place they had in the former versions. Substitution of the present references would be anachronistic. The solution has been to record in the footnotes that the references are to the original Articles or to the First Amendment if there seemed to be the risk of confusion. No problem has arisen if a provision retains its former place in the Articles. Fortunately, a number of the provisions to which frequent references occur (for example, Section 2(a) and Section 2(b) of Article VIII and Section 3 of Article VI) have not been moved. It is worth mentioning that the provision on authoritative interpretation of the Articles was Article XVIII until the Second Amendment but is now Article XXIX.

    Another problem was what to do about references to the various editions of the publication Selected Decisions of the International Monetary Fund and Selected Documents. Once again, references have not been changed but frequently references have been added in the footnotes to the latest editions, the Eighth Issue (1976) or the Ninth Issue (1981), in which a decision appears.

    I have not been reluctant to make changes in the original text of material published in the past whenever changes seemed desirable for reasons of style or clarity. I have observed much greater restraint on matters of substance. Few changes of this kind have been made, so that the development and the modification of views as time went by will be apparent. Once again, less restraint has been practiced when it seemed that the presentation of a view could be improved, but only a few contexts have been revised for this purpose.

    I owe much to some of my former colleagues in the Legal Department of the International Monetary Fund. They reacted to drafts of my articles, we had energetic exchanges, and then, for better or worse, I had to make up my mind. I thank these colleagues for the pleasure and usefulness of this good disputing, and I absolve them from any responsibility for my views. The same absolution must be granted to the Fund. The Introduction explains that the Fund has adopted few interpretations of the Articles on the problems that are the subject matter of this book. If the Fund has taken relevant decisions, I have made the fact clear. For the rest, all opinions are solely for my account. (I am aware of the dictum of an English judge that “every expert has a weakness—you just have to find it.”)

    I am indebted to the Editors of Staff Papers who have been hospitable in finding room in that extraordinary publication of the Fund for the many articles that have appeared so far on the Fund Agreement in the Courts. Members of the Editorial Division of what is now the External Relations Department of the Fund have worked their way through the text and footnotes of the published articles with a devotion and skill that have resulted in friendship.

    I must express my gratitude to members of the staff of the Fund who have had a special connection with this volume. Mr. Norman K. Humphreys, Chief Editor of the Fund, suggested the project. Miss Mary Ellen Lucas of the Editorial Division has made an outstanding contribution by the scrupulous but speedy performance of numerous editorial and other tasks. Mr. Amokrane Touami of the Legal Department willingly prepared the List of Cases and helped in other ways. Mrs. Esther Parsons, also of the Legal Department, typed the new material and undertook many duties in assembling all material for transmission to the Editorial Division and in keeping track of the progress of the volume toward publication.

    April 1982

    Joseph Gold

    THE FUND AGREEMENT IN THE COURTS: VOLUME II

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