This volume contains discussions of the body of cases in which the IMF Articles of Agreement have a bearing on issues before the courts.
The Fund Agreement in the Courts: Volume I
The Articles of Agreement of the International Monetary Fund came into force on December 27. 1945. and as of October 1, 1962, eighty-two countries had become members of the Fund, having accepted the Articles in accordance with their law and taken all steps necessary to carry out their obligations under the Articles. The membership is expected to increase to one hundred countries in the near future.
The Fund Agreement has had a powerful impact, legal as well as economic, on the postwar world. The author has been following the growing body of case law in which both national and international courts have taken cognizance of the effects of the Fund’s charter. As early as 1946, courts have given effect to the Articles of Agreement. and the resulting jurisprudence constitutes a new and important chapter in the law. The cases so far decided will have an important bearing on the numerous cases involving aspects of the Articles now in the courts. One interesting feature of the new body of case law is that it involves the effect of the unusual provision in the Fund’s complex charter which gives the institution the power to adopt authoritative interpretations.
The present volume is a compilation, in convenient form, of articles which originally appeared in the Fund’s journal, Staff Papers. No attempt has been made in this volume to change the form in which the articles originally appeared. The reader should not, therefore, look for any systematic treatment of the subject as a whole. It is hoped that whatever disadvantage this may involve will be balanced by the fact that the successive articles tend to show the development of the law in historical perspective. In addition, this will leave in their original form those passages in the articles that have been cited or quoted in the briefs of counsel. Finally, the form of discussion that has been adopted, involving copious quotation from the judgments, may be of value because of the unavailability of reports of a number of the cases.
The Fund Agreement in the Courts
Reprinted January 1987
This collection of articles is dedicated to the memory of RICHARD B. BRENNER 1918–1955 in recognition of a debt that cannot be discharged.
The Articles of Agreement of the International Monetary Fund have had, and continue to have, powerful effects, legal as well as economic, on the postwar world. Their major impact is felt outside the law courts, but some of their effects have been considered by international and national tribunals. This body of case law, although not large, is growing. There are many reasons for making a special study of this jurisprudence. Not the least of these is the interest in observing the application by the courts of a charter which is both novel and complex, and which, as one of its novel features, vests in the Fund a power of authoritative interpretation.
The present volume discusses a number of cases in which the Fund Agreement had a bearing on the issues before the courts. Its contents appeared originally as a series of articles published during the last decade in the Fund’s journal, Staff Papers. The suggestion that these articles should be published in a more convenient form has been made to me from time to time. Hitherto, I have hesitated, in the hope of finding time for rewriting the articles so as to give a more systematic treatment to their subject matter. I have concluded that this may mean deferment to the Greek calends, and thus the articles are now reproduced in their original form, with only minor editorial amendments, most of which are in the footnotes. Whatever the disadvantages of this procedure, it will at least show the development of the cases and the reactions to them in something like historical perspective, and it will reproduce those passages in the articles that have been cited or quoted in the briefs of counsel. The more systematic treatment to which I have referred will have to be left to the scholarship of others, which may be just as well.
I should like to remind the reader of certain sentences which preface each issue of Staff Papers:
“Through the publication of Staff Papers, the Fund is making available some of the work of members of its staff…. The views presented in these papers are not, therefore, to be interpreted as necessarily indicating the position of the Executive Board or of the officials of the Fund.
“The authors of the papers … have received considerable assistance from their colleagues on the staff of the Fund. This general statement of indebtedness may be accepted in place of a detailed list of acknowledgments.”
Nevertheless, I must make two special acknowledgments. First, I have profited enormously from the enthusiastic discussion of these cases with ray colleagues in the Legal Department of the Fund. However, the views finally expressed are those of this official only, unless, of course, the context shows that they are also the views of the Fund itself. Secondly, I am indebted to Miss Rose Skalak, Librarian of the Joint Law Library of the Fund and the International Bank for Reconstruction and Development, for the preparation of indexes, the correction of proofs, and the many other tasks she has so willingly undertaken in seeing this book on its way.
Washington, D.C., September 1, 1962
Table of Cases
The Fund Agreement in the Courts—I
The Fund Agreement in the Courts—II
The Fund Agreement in the Courts—III
Article VIII, Section 2(b), of the Fund Agreement and the Unenforceability of Certain Exchange Contracts: A Note
The Fund Agreement in the Courts—IV
The Fund Agreement in the Courts—V
The Fund Agreement in the Courts—VI
The Fund Agreement in the Courts—VII
TABLE OF CASES
Ahmed Bey Naguib v. Heirs of Moise Abner
Journal des Tribunaux Mixtes, No. 4003, Nov. 24/25,1948, pp. 2-3; First Chamber, Mixed Court of Appeal, Alexandria, Egypt 14
Anderson v. N.V. Transandine Handelmaatschappij
289 N.Y. 9, 43 N.E. (2d) 502 (1942); Court of Appeals of New York 138n
Austrian Supreme Court Case
Juristische Blätter, Feb. 7, 1959, pp. 73-74; Supreme Court of Austria 109-12
Balfour, Guthrie & Co. Ltd. v. United States
90 F. Supp.831 (1950); US. District Court, N.D. Cal., S.D 27n
Banco do Brasil, S.A. v. A.C. Israel Commodity Co., Inc., et al
215 N.Y.S. (2d) 3 (1961); New York Supreme Court 135-39
Boissevain v. Weil
 A.C. 327; House of Lords 94n
In the Matter of Heddy Brecher-Wolff
Title Claim No. 41668, Docket No. 1698 (1955); U.S. Dept. of Justice, Office of Alien Property 78-79
Brill v. Chase Manhattan Bank
220 N.Y.S. (2d) 903 (1961); New York Supreme Court, Appellate Division 153-54
Brown, Gow, Wilson et al. v. Beleggings-Societeit N.V.
(1961) 29 D.L.R. (2d) 673; Ontario High Court 138n, 154-56
Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America)
I.C.J. Reports, 1952, pp. 176-233; International Court of Justice 37-49
Catz and Lips v. SA. Union Versicherung
Jurisprudence du Port d’Anvers, Vols. 7-8 (1949), p. 321; Antwerp Civil Tribunal, Fifth Chamber 30-32
Cermak et al. v. Bata Akciova Spolecnost
80 N.Y.S. (2d) 782 (1948); New York Supreme Court 15-17
Chilean Electric Company, Ltd. v. State Railway Enterprise
Revista de Derecho, Concepción, Chile, Vol, XVI, No. 70, Oct./Dec. 1949, pp. 509-84; Supreme Court of Chile 7n
Contract and Trading Co. (Southern) Ltd. v. Barbey
 AC. 244; House of Lords 150
Commercial Tribunal of Courtrai, Belgium 79-83, 85
de Sayve v. de la Valdene
124 N.Y.S. (2d) 143 (1953); New York Supreme Court 74
Djamous v. Alepin
(1949) Que. S.C. 354; Quebec Superior Court 3
See International Bank for Reconstruction and Development and International Monetary Fund v. All America Cables and Radio, Inc., The Commercial Cable Company, Mackay Radio & Telegraph Company, Inc., RCA Communications, Inc., The Western Union Telegraph Company
First National City Bank of New York v. Southwestern Shipping Corporation
80 S.Ct. 198,361 US. 895 (1959); U.S. Supreme Court 102n
See also Southwestern Shipping Corporation v. National City Bank of New York
Frankman v. Anglo-Prague Credit Bank
(1948) 1 All E.R. 337; (1948) 2 All E.R. 1025; King’s Bench Division; Court of Appeal 16-17, 32,88
See also Zivnostenska Banks National Corporation v. Frankman
Frantzmann v. Ponijen
Nederlandse Jurisprudentie 1960, No. 290; District Court of Maastricht, Netherlands 113-18, 147
German Supreme Court Case
Neue Juristische Wochenschrift, June 10, 1960, pp. 1101-03; Supreme Court of the Federal Republic of Germany 139-42
Chamber 12 for Commercial Affairs, Hamburg Landgericht 82–86, 146
Re Helbert Wagg & Co., Ltd.
(1956) 1 All E.R. 129; Chancery Division 79n
International Bank for Reconstruction and Development and International Monetary Fund v. All America Cables and Radio, Inc., The Commercial Cable Company, Mackay Radio & Telegraph Company, Inc., RCA Communications, Inc., The Western Union Telegraph Company
86 N.Y.S. (2d) 232, 194 Misc. 308 (1948); Surrogate’s Court, New York County 82n
Moojen v. Von Reichert
Journal du Droit International, Vol, 85, 1958, pp. 1050-53; Revue Critique de Droit International Privé, Vol. 51, 1982, pp. 67-75; Civil Tribunal of the Seine, Fifth Chamber; Court of Appeals of Paris, First Chamber 143-53
National Bank of Belgium v. Bank of the Belgian Congo and National Committee of the Kivu
Journal des Tribunaux (Brussels), No. 4076, Oct. 2, 1955, pp. 527-28; Belgian Court of Cassation, First Chamber 69-73
Perutz v. Bohemian Discount Bank in Liquidation
110 N.YS. (2d) 446 (1952); 304 N.Y. 533,110 N.E. (2d) 6 (1953); New York Supreme Court, Appellate Division; Court of Appeals of New York 28-30, 50-55, 65n, 75-76, 78-79, 95, 104, 110, 124, 134-39,154
Republic of Indonesia v. Brummer
See Lembaga Alat-Alat Pembarajan Luar Negeri and the Republic of Indonesia v. Brummer, Bekker, and Winkelman and Company
Rights of Nationals of the United States of America in Morocco See Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America)
Roach v. Welles
127 N.YS. (2d) 138 (1954); New York Supreme Court 82n
San Antonio Gold Mines Ltd. v. Attorney-General for Manitoba and Jeep Gold Mines Ltd. u. Attorney-General for Manitoba (1950) 4 D.L.R. 605; (1951) 3 D.L.R. 45;
Manitoba King’s Bench; Manitoba Court of Appeal 32, 35-36
Setton et al. v. Land Bank of Egypt
Journal des Tribunaux Mixtes, No. 3901, March 24/25, 1948, pp. 2-7; No. 4052,
March 23/24 1949, pp. 3-6; No. 4078, May 23/24. 1949, pp. 2-4;
Civil Court of Alexandria, First Chamber; Civil Court of Alexandria, Second Chamber 6-8
Setton Heirs et at. v. Suez Canal Co.
Journal des Tribunaux Mixtes, No, 3772, May 26/27, 1947, pp. 3-6;
Mixed Court of Appeal of Alexandria 4-8
In re Sik’s Estate
205 Misc. 715, 129 N.Y.S. (2d) 134 (1954); Surrogate’s Court, New York County 74-77, 80, 83, 89, 152n
Simonaer v. Community of Jette-Saint-Pierre
Journal des Tribunaux (Brussels), No. 3808, May 1, 1949, p. 260;
Court of Appeals of Brussels 8-9
Société ‘Filature et Tissage X. Jourdain’ v. Epoux Heynen-Bintner
Pasicrisie Luxembourgeoise (1957), pp. 36–39; Tribunal d’Arrondissement de Luxembourg (Civil) 94–96, 107n, 110, 146, 151
Solicitor for the Affairs of His Majesty’s Treasury v. Bankers Trust Co.
304 N.Y. 282, 107 N.E. (2d) 448 (1952); Court of Appeals of New York. 121n
Southwestern Shipping Corporation v. National City Bank of New York
173 N.Y.S. (2d) 509 (1958); 178 N.Y.S. (2d) 1019 (1958); 190 NY.S. (2d) 352 (1959); cert. den. 80 S.Ct. 198, 361 U.S. 895 (1959); New York Supreme Court; Appellate Division; Court of Appeals of New York; U.S. Supreme Court 97–100, 102–08
See also First National City Bank of New York v. Southwestern Shipping Corporation
Spitz v. Schlesische Kredit-Anstalt A.G.
New York Law Journal, Jan. 21, 1948, p. 267; New York Supreme Court 14n
State of the Netherlands v. Federal Reserve Bank of New York et al.
79 F. Supp. 966 (1948); 99 F. Supp. 655 (1951); 201 F. 2d 455 (1953);
U.S. District Court, S.D.N.Y.; United States Court of Appeals, Second Circuit 138n
Stephen v. Zivnostenska Banka National Corporation
140 N.Y.S. (2d) 323 (1955); New York Supreme Court 77–78, 142
Stichting Leids Kerkhovenfonds v. Bank of Indonesia
District Court of Amsterdam, First Chamber A 112–13
Estate of Stoich, State of Oregon v. Kolovrat et al. and Estate of Zekich, State of Oregon v. Zekic et al.
349 P. (2d) 255 (1960); Supreme Court of Oregon 121–25
See also Kolovrat v. Oregon
White v. Roberts
33 Hong Kong Law Reports (1949), pp. 231–82;
Hong Kong Supreme Court 87–94, 99, 106, 110, 118
Estate of Zekich, State of Oregon v. Zekic et al.
See Estate of Stoich, State of Oregon v. Kolovrat et al. and Estate of Zekich, State of Oregon v. Zekic et al
Zivnostenska Banka National Corporation v. Frankman (1949) 2 All E.R. 671; House of Lords 16–17, 155