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Mr. Joseph Gold

Abstract

The interpretation of provisions in treaties that include gold units of account, such as the Poincare franc or the Germinal franc,1 continues to be a problem for the courts because of the abrogation on April 1, 1978 of an official international price of gold by the Second Amendment of the Fund’s Articles of Agreement. It has been shown in earlier discussions2 that the solutions adopted by the courts have fallen into one or the other of two categories: application of the market price of gold, or the rejection of it.

Mr. Subhash Madhav Thakur, Ms. Valerie Cerra, Mr. Balázs Horváth, and Mr. Michael Keen

Abstract

Sweden has long been regarded as epitomizing the modern welfare state. In fact, the “welfare states” of different countries differ in quite fundamental ways.1 That in Sweden—naturally if somewhat imprecisely referred to as the “Swedish model”—is marked by the use of big, centralized institutions and large-scale transfers, commonly provided on a universal basis (rather than being income related) with a view to reducing inequality, alleviating poverty, and insuring against social risks. The key features of this policy regime, which employs both fiscal and nonfiscal measures, include:2

Mr. Joseph Gold

Abstract

The spreading use of the special drawing right (SDR) as a unit of account1 prompts an inquiry into the reactions of the courts to that function of the SDR. So far, no cases have been reported that involve the SDR as the unit of account. The cases in which the SDR has been considered by the courts have arisen under legal provisions that limited a defendant’s liability by reference to a unit of account defined in terms of gold. The first section of this chapter examines some cases in which an issue was whether the SDR provides a solution for the problem of applying a gold unit of account in current conditions.

Mr. Joseph Gold

Abstract

Article VIII, Section 2(b) may require interpretation either because it is regarded by the court as establishing a defense for the defendant, or because, as in the Federal Republic of Germany, the provision is understood to create a procedural impediment for the plaintiff. Whether the one approach or the other is taken, judicial interpretations of the provision have been extraordinarily diverse. This diversity has not been produced by a widespread consideration of the judicial decisions of other countries and the deliberate rejection of the conclusions reached by foreign courts. The foreign decisions are often unknown and not readily available. If a court has paid attention to some of them, the reason may be that the forum shares a common language with the foreign courts, or that decisions of the foreign courts have been translated into the language of the forum, or have been published in the country of the forum, or have been discussed in publications readily available to lawyers in the country of the forum.

Mr. Joseph Gold

Abstract

Patria, a member of the Fund, provides by law that all obligations of its residents to make payments are to be discharged in the domestic currency whatever may be the contractual currency of account or of payment and whether the payee is or is not resident in Patria’s territory. Patria provides that the domestic currency is the exclusive currency of payment. The expression “exclusive currency of payment” is used here so as to avoid a priori solutions that may seem to follow from the use of such terminology as legal tender, cours legal, and cours forcé. Legal tender or cours légal is defined often as the currency that creditors are required by a sovereign legislator to accept in discharge of indebtedness owed to them and also as the means of circulation (notes, coins) that must be accepted in accordance with such a provision of law. Cours forcé is defined often as the means of circulation that are legal tender and are made irredeemable by the monetary authorities issuing the currency.

Mr. Joseph Gold

Abstract

This chapter lists some studies of Article VIII, Section 2(b) that have appeared since 1980, together with brief comments on some of the issues discussed in these works. The issues have been selected because they are novel or have some other special interest. Comments of my own appear always within square brackets. References to “the author” are always to the author of the work cited.

Mr. Joseph Gold

Abstract

Consequential claims are defined as claims that would not arise without the existence of an “exchange contract,” but the claims are not between the parties to the contract, or, if between the parties, are not under the contract. The cases can fall into one of several categories. Three categories will be considered. First, the claim is on the contract but not between the original parties to it: the claim by the creditor (obligee) against the debtor (obligor) under the exchange contract is assigned to a third party, who sues the debtor on the contract. Second, the claim of the creditor against a third party exists because of the creditor’s exchange contract with a debtor, but the creditor’s claim is not under that contract. The claim is made by the creditor under a contract of guarantee or indemnity or under a letter of credit of which the creditor is the beneficiary. In the third category, the claim is advanced by the creditor against the debtor, both of whom are parties to an exchange contract, but the claim is not under the contract. The claim is for unjust enrichment. Problems of the application of Article VIII, Section 2(b) have arisen in connection with all three categories.

Mr. Joseph Gold

Abstract

In relation to payments arrears, the Fund has recognized a difference between restrictions imposed by a member on the making of payments and transfers for current international transactions, for which the approval of the Fund is necessary under Article VIII, Section 2(a), and the nonperformance of obligations, usually called defaults, by the member itself.1 Defaults, in the sense of arrears, may be related to a government’s inability or its unwillingness to make payments. The Fund’s 1983 Report on Exchange Arrangements and Exchange Restrictions contains the following passage:

Mr. Joseph Gold

Abstract

The distaste for retroactivity is a tradition of the law. The Monetary Law Committee of the International Law Association presented a report in 1954, in which the report as a whole examined an ideal approach to the international recognition of exchange control regulations. Paragraph 10 of the report, with the emphasis as shown, read as follows: