THE Spreading use of the special drawing right (SDR) as a unit of account 1 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 specified 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. Section I of this paper 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.
The legal problem referred to in the preceding paragraph is not the only one in which the SDR could be involved. 2 For example, in some jurisdictions, the question could arise whether a judgment in respect of certain contractual obligations undertaken by reference to the SDR as the unit of account could be expressed in terms of the SDR. In principle, this problem is likely to be more durable than the problem discussed in Section I of this paper because of the prospect that, sooner or later, the SDR will replace gold as the unit of account in conventions of widespread application requiring the adoption of a unit of account, while the SDR as a contractual unit of account has an unlimited future. Section II discusses the possibility of expressing judgments in SDRs in certain circumstances and in certain jurisdictions. Section I is related to Section II because the reactions of the courts in their first encounters with the SDR may give some clues to future developments.
I. Application of Gold Units of Account
International conventions in which a weight of gold is the unit of account, usually in the form of the Poincaré franc or the Germinal franc, 3 are being amended or are being replaced by new conventions for the purpose of substituting the SDR for the gold unit of account. 4 Until these amendments or new conventions take effect, courts must face the problem of applying the gold unit of account under domestic legislation that gives the force of law to the provisions of existing conventions. The problem may persist for some time because it is already apparent that, for various reasons, delays can be expected before amendments or new conventions become effective. Many of the existing conventions were negotiated during the life of the Fund’s par value system, when gold served, directly or indirectly, as the common denominator for expressing the par values of currencies. Some of the conventions antedate the Fund’s Articles but were negotiated at a time when it was common practice to define the external value of currencies in relation to gold. The Second Amendment of the Fund’s Articles has abrogated the official price of gold and prohibits maintenance of the external value of currencies by reference to gold. 5
Some countries have relieved their courts of the problem of applying gold units of account by adopting legislation or regulations that direct how the unit of account is to be translated into the domestic currency, 6 but this practice, although growing, is not yet widespread.
A recent survey has shown that the solutions adopted by the courts have been based on the SDR, the last par value of the currency that the court was awarding, the last central rate of that currency, the last par value adapted according to an index, the identification of the Poincaré franc with the present French franc, and the market price of gold. An argument has been advanced in favor of the method that the monetary authorities of the country of the forum follow in valuing their gold holdings. 7 The SDR solution was not mentioned in all the cases in which the courts have applied other solutions. The following discussion is confined to some cases in which, with one exception, the SDR was advocated or adopted as the medium for translating a gold unit of account into currency.
Some European cases
Matter of the Khendrik Kuivas
In Matter of the Khendrik Kuivas, 8 a Soviet vessel of that name collided on October 30,1976 with the German motor ship Corvus, which sank as a result of the collision. The owner of the Corvus, the insurers of the ship, cargo owners, and their insurers claimed damages. The owner of the Soviet vessel petitioned the Hamburg District Court to be allowed to deposit a sum of deutsche mark to which the owner alleged that its liability could be limited under legal provisions of the Federal Republic of Germany that gave effect to the Convention Relating to the Limitation of Liability of Owners of Seagoing Vessels, signed at Brussels in 1957 (the Brussels Convention). Liability was limited under the convention to a maximum amount expressed in Poincaré francs.
The court delivered its decision on December 29, 1976. The proposed Second Amendment of the Articles had been transmitted to members of the Fund for acceptance by them, after approval by the Board of Governors on April 30, 1976. The Second Amendment became effective on April 1, 1978. The court referred to Transarctic Shipping Corporation, Inc. Monrovia, Liberia v. Krögerwerft Company, 9 an earlier decision in which the Higher Regional Court had rejected application of the most recent par value of the deutsche mark, as established under the Articles in terms of gold on October 26, 1969. The par value continued its legal existence under the Fund’s Articles even though it was ineffective. On December 18, 1971, the Fund adopted its first decision on central rates and wider margins, under which a member could communicate to the Fund a central rate for its currency expressed directly in terms of gold, or indirectly through the medium of the SDR or another currency. 10 In 1976 the unit of value of the SDR was still defined by the Articles as the equivalent of 0.888671 gram of fine gold. 11 The decision was an attempt by the Fund to encourage members to reduce disorder in the exchange markets by following the practices defined in the decision, even though central rates could not be validated by the decision or by any action other than amendment of the Articles.
The court recalled that in the Transarctic case the par value had been rejected in favor of the central rate of the deutsche mark because of the revolutionary developments that had occurred in the international monetary system. The Federal Republic of Germany had declared a central rate for the deutsche mark in terms of the SDR, with effect from June 29, 1973. The relationship of the deutsche mark to the Poincaré franc could be determined through the medium of the SDR, because the SDR was defined in terms of gold. This technique would provide uniformity among contracting parties in the application of the convention. Uniformity on the basis of the official value of currencies had been the reason for applying par values, but they had become unrealistic, and central rates had become the current expression of the official value of currencies. The court in the Transarctic case applied the central rate for the deutsche mark.
The judgment in the Transarctic case was delivered one day after the Fund’s decision on the “basket” method of valuing the SDR became effective on July 1,1974. Under the applicable legal provisions, the case had to be decided on the basis of the facts at the date on which the fund for the limitation of liability was established or security was provided. That date preceded July 1, 1974. Nevertheless, the court noted that the Committee of the Fund’s Board of Governors on Reform of the International Monetary System and Related Matters (the Committee of Twenty) had recommended detaching the SDR from gold. 12 The Fund’s decision adopting the basket of 16 currencies for valuing the SDR had this practical effect, even though the legal analysis that justified the decision had to be that the basket was equivalent to the gold value of the SDR in conditions at that time. This legal fiction was necessary because the Articles had not yet been amended and continued to define the SDR in terms of gold. In effect, the decision related gold to the SDR rather than the SDR to gold.
By the time Matter of the Khendrik Kuivas was decided, the relevant facts were subsequent to the Fund’s adoption of its first decision on the basket method of valuation of the SDR. Once again, the court held that it had to take account of developments in the international monetary system. Under the Articles, the deutsche mark still had a par value, and under the Fund’s decision on central rates, the currency still had a central rate in terms of the SDR. The court was aware that the SDR was still defined in terms of gold under the Articles. The court held, however, that it had to apply the new method of valuation in arriving at the value of the deutsche mark in terms of the SDR.
The technique followed by the court was to translate into SDRs the amount of Poincaré francs to which liability was limited on the basis of the definition of both in terms of gold, and then to apply the Fund’s valuation of the SDR in terms of the deutsche mark on the latest date (December 20, 1976) for which this value was available.
The court remarked that under the basket method of valuation, a change in the rate of exchange of a currency in the basket affected the value of the SDR in terms of other currencies in the basket. This effect seemed to the court even more in keeping with the uniformity that was an objective of the legal provisions the court had to apply. The court appeared to be saying that the basket method ensured that the economic circumstances of individual currencies were taken into account in arriving at an internationalized datum of value. The court did not regard its decision with unqualified admiration. It noted that the daily fluctuations in the value of the SDR in terms of currencies were unfortunate and might induce petitioners to speculate, apparently in deciding when to pursue their remedies even if the solution made it irrelevant where petitioners brought proceedings. Moreover, if proceedings were reopened for some reason, it might become necessary to determine the amount of liability anew. In the court’s opinion, however, these disadvantages were negligible compared with the interest in achieving international uniformity in applying the limitations specified by the convention.
Linee Aeree Italiane (L.A.L) v. Riccioli
The Civil Court of Rome, Division IV, in a decision of November 14, 1978 adopted the same solution as in Matter of the Khendrik Kuivas, without mentioning that decision. The proceedings in the later case arose under Italian legislation giving effect to the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on October 12, 1929 (the Warsaw Convention). The Poincaré franc is the unit of account for the limitation of liability under the Warsaw Convention also. A difference between the two cases is that by the time the Civil Court of Rome delivered its decision, the Second Amendment of the Fund’s Articles had become effective. The official price of gold had been abrogated, and the SDR was no longer defined by the Articles in terms of gold. Neither par values nor central rates were in existence. The date to which the court looked, however, for the value of the lira in terms of the SDR was December 31, 1976. 13
In neither Matter of the Khendrik Kuivas nor the Riccioli case did the court mention that the most recent par value of the currency, the deutsche mark in the one case and the lira in the other case, remained in existence under the law of the Fund. Italy, acting in accordance with a law of 1947, had established a par value for the lira under the Articles on March 30, 1960 of Lit 625 to the U.S. dollar and had made no change in that par value. Italy notified the Fund of a central rate of Lit 581.50 to the dollar, with effect from December 20,1971. On February 4,1973 Italy decided to float the lira. At no time was action taken under Italian law to abrogate the par value.
The court held that the lira had not had a gold value since February 4, 1973, and that it was not possible to determine the gold content of the lira either directly or indirectly. The valuation by the Bank of Italy of its gold holdings on the basis of market prices could not be followed because this determination was conventional. This dismissal of the central bank’s practice may have meant that the valuation, although authorized, was discretionary and not legally ineluctable.
The court decided that the value of the Poincaré franc could be expressed in terms of the lira by means of the ratio between the Poincaré franc and the former gold value of the SDR and the value of the lira in terms of the SDR as determined by the Fund by reference to the basket of 16 currencies on the relevant date, December 31, 1976. This method, which will be referred to as the SDR solution, seemed to the court to be closer to the value of the Poincaré franc and the official exchange rate of the lira than other solutions.
The court rejected the argument that the Poincaré franc in the Warsaw Convention was a gold clause that linked recoveries to the market price of gold. The choice of a gold franc, instead of a weight of gold, showed that the parties to the Warsaw Convention had intended to calculate damages through the exchange system.
Giants Shipping Corporation v. State of the Netherlands (The Blue Hawk)
The Supreme Court of the Netherlands delivered its judgment in Giants Shipping Corporation v. State of the Netherlands, which will be referred to as The Blue Hawk, on May 1, 1981. The case involved the application of the Poincaré franc in Netherlands legislation that gives effect to the Brussels Convention. 14 The proceedings resulted from the contact on December 29,1978 of a vessel named the Blue Hawk with a bridge owned by the State of the Netherlands. The State argued that the court, in applying the Poincaré franc under legal provisions on the limitation of liability, had no alternative under Netherlands law to application of the market price of gold.
A difference between The Blue Hawk and Matter of the Khendrik Kuivas is that the Netherlands, by a statute that took effect on August 1,1978, had abrogated the statute under which the par value of the guilder had been established. The new statute did not specify a value for the Netherlands guilder, because the Second Amendment prohibits maintenance of the external value of the currency in terms of gold. Since the date of the new statute, the central bank of the Netherlands has valued its gold stock on the basis of market prices. The Second Amendment had not become effective when Matter of the Khendrik Kuivas was decided. The deutsche mark still had a par value under the Fund’s Articles and a central rate under the Fund’s decision on central rates. The Riccioli case was decided after the Second Amendment had become effective, but the court based its decision on the facts as they stood before that date. In The Blue Hawk the collision occurred after the Second Amendment had become effective and after the change in the statutory law of the Netherlands. The Italian monetary authorities had been authorized by a decree-law of December 30, 1976 and a subsequent ministerial order to calculate the value of their gold holdings at the end of each quarter on the basis of prices in the gold market.
The State of the Netherlands opposed the SDR solution because the Brussels Convention had not been amended or replaced and because the Second Amendment had cut the tie between the SDR and gold. The SDR solution would give no meaning to gold as the unit of account in the Brussels Convention. The State pointed out that the SDR solution would erode by some 20 per cent recoveries calculated on the basis of the last central rate for the guilder in effect before August 1, 1978. The erosion would result from the decline in the external value of the U.S. dollar and the impact of this decline on the value of the SDR, because the U.S. dollar was a major component in the SDR basket. The erosion would be beneficial for insurers, who were mostly foreign. Moreover, efforts to have Parliament adopt a bill providing that gold units of account should be applied on the basis of the Poincaré franc/SDR gold ratio (Poincaré
The State recognized that the market price of gold would fluctuate and would lead to different recoveries. Furthermore, the market price would be so high that it would rarely give rise to the privilege of limiting liability. The effect would be disadvantageous for insurers. An acceptable solution to deal with both these consequences might be to follow the central bank’s valuation of its gold at 70 per cent of the lowest annual average recorded in the preceding three calendar years. In principle, the basis of valuation was to be reviewed every three years. 16 This solution, which would have an “official” or “semiofficial” character, would result in a doubling of limits of liability in guilders when compared with calculations based on the former central rate for the currency.
The State was aware that the SDR solution had been incorporated in the proposed Protocols to the Warsaw Convention negotiated at the Diplomatic Conference of the International Civil Aviation Organization (ICAO) held in Montreal in September 1975. The State argued that this agreement had been a compromise and not an ideal solution, as was shown by the reduction in limits of liability that it would entail compared with calculation of the present limits on the basis of the market price of gold. The subsequent adoption of the SDR solution for the purposes of other conventions should be discounted because the Montreal compromise had left subsequent negotiators with no practicable alternative. Furthermore, the case for following the solution incorporated in draft conventions became weaker the longer they remained drafts. The case law of various countries showed that there was no uniform international approach to solution of the problem.
For the owner of the Blue Hawk it was argued that a solution based on the market price of gold rather than on the SDR would have no more than temporary importance, because it would apply only during the period between August 1,1978 and the passage of legislation endorsing the SDR solution. The price of gold as a commodity was distinguishable from a monetary price. The spread of the SDR as a unit of account that was no longer linked to gold demonstrated the unsuitability of gold as a unit of account because of movements in the market price of gold as a commodity. The owner’s brief quoted passages from Pamphlet No. 33 (pp. 10-13 and 26) recommending the SDR solution.
The brief explained that the Poincaré franc had been chosen in the past as the unit of account for the purpose of conventions because the franc would have a stable monetary value. If the parties to the conventions had not had this intention, and had accepted as their unit of account a commodity with a fluctuating price, they could have referred simply to a weight of gold and not to a currency defined in relation to gold.
The Attorney General of the Supreme Court of the Netherlands submitted an advisory opinion. He summarized the legal history of the SDR, the par value system, and the Second Amendment. He pointed out that if the Fund were to call the par value system of Schedule C of the Articles into operation, the SDR and not gold would be the common denominator. 17 That role in the future did not prevent the SDR from serving as a stable international unit of account at the present time. The Attorney General listed the new or amended conventions in which the SDR will replace the Germinal franc (at the ratio of SDR 1 = 3 Germinal francs) or the Poincaré franc (at the ratio of SDR 1 = 15 Poincaré francs), and he concluded that there were no exceptions to this practice after 1975. To deal with the problem of valuation in the period before a new convention or the amendment of an existing convention takes effect, some countries, such as the Federal Republic of Germany, Norway, Sweden, the United Kingdom, and Ireland, had taken domestic legal measures to apply the SDR solution.
Some authors have favored the solution of the market price because it would compensate for a reduction in the purchasing power of currencies. 18 The Attorney General argued that the function of a gold unit of account was not protection against inflation but protection against the risks of the devaluation of a currency against other currencies if a currency were chosen as the unit of account.
In supporting the SDR solution, the Attorney General cited two propositions drawn from the discussion in Pamphlet No. 19 (p. 11) of the Fund’s adoption of the basket valuation of the SDR in 1974. First, the Fund’s decision was tantamount to the valuation of gold by reference to the SDR rather than the valuation of the SDR by reference to gold. Second, the care taken by the Fund to ensure that the value of the SDR in terms of currencies immediately before and immediately after the Fund’s action justified the view that, although the SDR was no longer linked to gold, the SDR could be regarded as the successor to gold as a unit of account. 19
The Supreme Court decided in favor of the SDR solution. The court recalled the decision it had taken on April 14,1972 rejecting the market price of gold under the “two-tier” system and applying the official price. 20 Since then, developments of a fundamental character had occurred in the international monetary system, leading to the Second Amendment of the Fund’s Articles on April 1, 1978 and abrogation of the par value of the guilder on August 1, 1978. Gold had lost all monetary significance for the Netherlands. It had become unsuitable to regard the franc expressed in terms of gold as a generally accepted unit of account for achieving uniform limits of liability in accordance with the objectives of the Brussels Convention. A gap in the convention and in Netherlands law giving effect to it had opened up. Steps had been taken internationally and nationally, including the draft law endorsed by the Lower House of Parliament on February 17, 1981, toward filling the gap.
In the period before the measures taken to fill the gap in Netherlands law became effective, the courts could not refrain from acting to provide a solution. The starting point should be a standard accepted in international monetary transactions. It could not be gold.
Rather, the basic ideas lead one to aim at a nexus with the choice made by the member countries of the International Monetary Fund for a unit of account suitable for use in international payment transactions as a monetary standard since gold can no longer be used as such. Their choice fell on the special drawing right (SDR) of the said Fund, a unit whose value was initially expressed as an amount of gold weighing approximately 15 times the gold weight of the franc in question. 21(Translation)
When gold was replaced by the SDR basket of currencies, the new standard was chosen in such a way that, when the change was made, the value of the SDR in terms of currencies was the same according to both standards. This circumstance made it possible to arrive at the necessary nexus with the SDR.
Filling the gap in this way, the court continued, was consistent with practice in adapting conventions and national laws to the new monetary situation, and with the draft law introduced in the legislature of the Netherlands. The real decline in the limits on liability as a result of the reduction in the value of the SDR in terms of purchasing power was not a legal objection to the SDR solution. The problem of that decline had to be resolved by the negotiators of conventions or national legislators and not by the courts. Higher liability limits, expressed in terms of SDRs, had indeed been included in the International Convention on the Limitation of Liability for Maritime Claims, which had been adopted in London on November 19, 1976, although the proposed convention had not yet become effective.
The SDR solution adopted in The Blue Hawk has not been applied in some other cases decided by European courts. The usefulness of these cases is doubtful for a number of reasons. The SDR solution was not advanced by counsel. The cases were decided before the Second Amendment made fundamental changes in international monetary law in response to developments in the international monetary system. The cases were decided before the present widespread amendment or proposed amendment of treaties under which the SDR will be the unit of account, and before domestic measures were taken in various countries to require courts to apply a gold unit of account according to the SDR solution. Finally, the cases were decided before the decision of the Netherlands Supreme Court in The Blue Hawk. Counsel rely on decisions by foreign courts when the objective of a convention is to ensure uniform limits on recoveries wherever proceedings may be brought.
Some U.S. cases
The problem of applying a gold unit of account has been a central issue in some cases decided recently by courts in the United States. Appeals or other cases are proceeding, and the last word has not yet been uttered. Three cases decided already are of interest because the SDR solution has not been adopted even though it has been urged in two of them.
Franklin Mint Corporation et al. v. Trans World Airlines, Inc.
Franklin Mint Corporation et al. v. Trans World Airlines, Inc. was decided by the United States District Court, Southern District of New York, on November 6, 1981. 22 The plaintiff brought the action against the carrier for loss of cargo. The parties agreed that the claim was covered by the Warsaw Convention. The carrier moved to determine the amount of its liability, which made it necessary to decide how the Poincaré franc was to be applied.
Counsel for the carrier submitted what the court called “an extraordinarily lucid and comprehensive brief.” 23 Counsel presented a spirited argument for the SDR solution but proposed, if the court did not adopt this solution, that the last official price of gold in U.S. dollars ($42.22 per ounce of fine gold) should be applied and that, if this second solution was not accepted, the Poincaré franc should be deemed to be equivalent to the current French franc. The contention on behalf of the cargo owner, “in an equally able brief,” 24 was that the market price of gold was the only possible solution.
The arguments of counsel are not summarized here, but two arguments on behalf of the cargo owner are recalled because of their bearing on the SDR solution and on the decision delivered on appeal. One argument was that the history of the SDR did not support the contention that it was a stable unit of account. In the brief history of the SDR, the valuation of it had gone through a number of changes. The SDR was valued originally in relation to gold, and since the initiation of the basket method of valuation, the basket had been composed in three different ways. The second argument was that if the contention was valid that the Poincaré franc had been chosen as the unit of account in order to detach limits of liability from the fate of a particular currency, there was no reason to assume an intention to tie the limits to the fate of the five currencies that constituted the present SDR basket.
The court decided in favor of the last official price of gold in dollars, 25 but declared that:
Were we writing on a clean slate, we would find the arguments in favor of the first of TWA’s suggestions (the SDR) most persuasive. 26
The court’s choice was based on the consideration that, “arguably, at least,” 27 the solution of the last official price had been espoused by the Civil Aeronautics Board (CAB), the governmental agency of the United States most intimately concerned with the transaction that gave rise to the proceedings. “It therefore comes as close as anything to constituting a governmental interpretation” 28 of the limitation in the Warsaw Convention.
A second consideration relied on by the court was that all domestic carriers, including TWA (the carrier in this case) were presenting the dollar equivalent of the limitation in their tariffs on the basis of the last official dollar price of gold. 29 It seemed to the court, therefore, that the parties in this case had contracted on the basis of this price. The court’s reliance on the attitude of the CAB to the method of valuation was obviously tentative, because the CAB had not promulgated an official view and indeed had declared on March 24,1981 30 that it had avoided the announcement of a view. The court probably gave weight to what could be considered a de facto attitude on the part of the CAB because U.S. air carriers are required by the Federal Aviation Act of 1958 (Section 403) to file their international tariffs with the CAB, 31 and the carriers have continued to file on the basis of the last official price of gold without objection by the CAB. The CAB order32 that directs the carriers to file on this basis refers to the Par Value Modification Act of 1972. 33 The statute has been repealed, however, with effect on April 1, 1978 34 as a result of the Second Amendment of the Fund’s Articles.
There is no reason to think that the court was influenced by internal memoranda by members of the staff of the CAB, about which much has been made in argument by both sides in the U.S. cases. The memoranda are not pronouncements of the CAB and do not reach the same conclusions. The main preoccupation of the authors of the memoranda was to resist the solution of the market price of gold.
The court did not deal with the argument of the carrier based on Article 18 of the Vienna Convention on the Law of Treaties:
Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 35
The United States had signed the Montreal Protocols to amend the Warsaw Convention, under which the SDR will be the unit of account when the Protocols become effective. Counsel for TWA argued that Article 18 of the Vienna Convention required the United States not to undermine the Montreal Protocols during the process of ratification by judicial rejection of the SDR solution. The United States had not ratified the Vienna Convention, but that instrument had been widely recognized as declaratory of international law and had been relied upon repeatedly by the courts.
The ratio decidendi was that there had been an implied governmental choice in the United States of the last official price of gold for the purpose of applying the Warsaw Convention. The decision in The Blue Hawk rests on the court’s assumption that there had been an international choice of the SDR solution, and that actions by the Netherlands Government endorsed this solution. In The Blue Hawk and in the Franklin Mint case as decided by the lower court, governmental attitude was recognized as a basis for decision by courts of the territory within which the national government operates. In the Franklin Mint case, the lower court concluded that the appropriate agency of the U.S. Government—the CAB—had taken a position, sotto voce, in favor of the last official price of gold. A difference in the attitudes of the two courts is that in The Blue Hawk the Netherlands Supreme Court, even though it did not deal with the question whether rejection of the SDR solution was inconsistent with the Vienna Convention, considered it inadvisable to apply a solution that would have legal effect for a limited period only.
On appeal, the U.S. Court of Appeals for the Second Circuit delivered a surprising decision on September 28, 1982 that adds yet another “solution” to all other solutions on the application of gold units of account. 36 The court decided that, with respect to events creating liability occurring 60 days from the issuance of the mandate in this case (December 20,1982, unless the mandate was stayed), the court would hold that the limits on liability for loss of cargo under the Warsaw Convention were unenforceable in U.S. courts.
The Court of Appeals declared that there was a devastating argument against each of the solutions that had been proferred:
The last official price of gold is a price which has been explicitly repealed by the Congress…. It thus lacks any status in law or relationship to contemporary currency values. The free market price of gold is the highly volatile price of a commodity determined in part by forces of supply and demand unrelated to currency values. SDR’s are a creature of the IMF, modified at will by that body and having no basis in the Convention. The French franc is simply one domestic currency, subject to change by the unilateral act of a single government. 37
Courts enforcing the Convention by choosing a unit of account were expressing their preference as to policy, but the Court of Appeals held that it had no legal authority to select a new unit.
The court cited the variety of solutions that have been adopted. It regarded this phenomenon as support for the conclusion that an internationally agreed unit of account did not exist. The state of U.S. legislation was further evidence: the “last” official price was a euphemism for “no longer” or “repealed.” The CAB’s position was dismissed with the comment that the sole justification for it was “the law of inertia.” 38
In discussing the SDR, the court quoted the naive analysis that SDR balances are lines of credit against which reserves may be borrowed for use in central bank operations. The Montreal Protocols propose to substitute the SDR for gold because the value of the SDR is more stable than the market price of gold, but few signatories have ratified the Protocols. The United States has not done so.
The inappropriateness of our adopting SDR’s as the unit of conversion is plain. The Convention itself contains not the slightest authority for its use and the Senate has thus far declined to ratify the Montreal Protocols. Moreover, the decision in principle to use SDR’s is only the first step. After that, a further step must be taken to define the limitation of liability in terms of a particular number of SDR’s per kilogram of baggage. In effect, we would have to set the level of the limitation. Finally, the SDR is a creature of an international body, the IMF, and is subject to modification or outright elimination by that body. In fact, the method of calculating SDR’s has been changed three times in the last seven years. This Court has no power under the terms of the Convention or relevant domestic source of authority to adopt a unit of conversion variable at the whim of an international body distinct from the parties to the Convention. 39
The court was required to observe the line between the interpretation of treaties and the negotiation, proposal, and ratification of them. The problem in this case was not one of interpretation. 40
The court would apply its decision only prospectively, as noted already, because this case was the first in which a court has declined to enforce the limits of liability under the Convention. Parties to transactions covered by the Convention should have time to adjust their affairs to this ruling. The air carriers had not had time to reformulate their tariffs. The last official price would apply to events occurring before the date when the ruling would begin to operate.
In preserving the status quo for the time being, the court was endorsing for that period of standstill an interpretation that, in its opinion, could not be put upon the Warsaw Convention. The reason for this flexibility, however, was not the desire to preserve the treaty from inefficacy, even though the principle of effectiveness is known to the law.
If a treaty is ineffective in so vital an aspect as the limitation of liability under the Warsaw Convention, why should it not be ineffective in full? The court acknowledged this problem in a footnote, 41 and dealt with it by stating that the abrogation of a treaty fell within the province of the executive and legislative, but not the judicial, branches of the state.
The Fund’s method of valuation of the SDR has been changed on the occasions noted by the court, but the changes have been made progressively in order to improve the method and to bring it into greater concordance with the wishes of the Fund’s vast membership. The court paid no attention to the high majorities necessary for modifying the method of valuation, 42 and spoke instead of changes at the whim of an international body distinct from the parties to the Convention.
Boehringer Mannheim Diagnostics, Inc., f/k/a Hycel, Inc. v. Pan American World Airways, Inc.
In Boehringer Mannheim Diagnostics, Inc., f/k/a Hycel, Inc. v. Pan American World Airways, Inc., decided on November 24, 1981 by the United States District Court for the Southern District of Texas, Houston Division, 43 the action was for damage to cargo owned by the plaintiff, and the defendant sought to limit its liability under the Warsaw Convention. The court decided in favor of the market price of gold in preference to the last official price, which had been advocated by the carrier, but which the court considered “a legal fiction of the purest kind.” 44 The content of the court’s opinion suggests that the relevant legal material was not up to date and that the SDR solution was not advanced.
In Re Air Crash Disaster at Warsaw, Poland, on March 14, 1980
In Re Air Crash Disaster at Warsaw, Poland, on March 14,1980, decided on February 16,1982 by the United States District Court, Eastern District of New York, 45 the action against the carrier, Polskie Linie Lotnicze, was in respect of the death of eight American passengers. An issue again was the application of the Poincaré franc under the Warsaw Convention. The plaintiffs contended that the market price of gold should apply. The defendant’s first line of defense was the current French franc, with the SDR, as the international standard of value that has replaced gold, as the second line. Neither side argued in favor of the last official price of gold. The court recognized that the last official price was a possible solution, noted that this solution had been adopted (by the lower court) in the Franklin Mint case, and decided to apply the same solution.
The court thought that the judiciary could not annul or disregard provisions of a treaty “upon their own notions of equity, general convenience or even substantial justice,” 46 and that courts would be acting improperly if they were to accept the argument in favor of the SDR solution. The court agreed that the Poincaré franc had been chosen because of the monetary character of gold and the function it had performed as a denominator of the value of currencies. The intention of the parties to the convention would be frustrated if the price of gold as a commodity were chosen. Nevertheless, the reference to gold could not be ignored. Governments and not courts had the function of drafting and redrafting treaties, no matter how logical it might be to substitute the current French franc, the SDR, or anything else as the unit of account for the purposes of a treaty.
The court justified its choice of the last official price of gold by explaining the impropriety of judicial action to change an international unit of value “for any but the most pressing reasons of public policy.” 47 The court recognized that continuing to observe the public policy of the United States as expressed in the last official price of gold ran the risk in a changing global economy of frustrating the intention of the drafters of the Warsaw Convention. Having dug this pitfall for itself, the court avoided entrapment with this surprising statement:
But there is no reason to think that there have been such changes in the world’s monetary system between the time the last United States gold price was fixed and now that application of the last official price of gold would substantially undermine the intention of the treaty drafters. 48
In this passage, the court was holding that a sufficient change of substance had not occurred in the international monetary system to justify judicial activism. The court seemed sufficiently uncomfortable with this conclusion to think it necessary to invoke the intention of the drafters with respect to procedure in addition to their intention with respect to international economics. The court declared that the legislative history of the Warsaw Convention, including the history of the Montreal Protocols,
makes clear that the Convention has never been considered to contain mechanisms so perfectly responsive to changes in the world’s economy as never to need amendment or revision by the original signatories. The present situation, in which one of the most important of the world’s currencies has separated the value of its currency from the international unit of value in use at the time the Warsaw Convention was drafted, may well be one demanding a response from the world’s governments. But there is no reason to suppose that the drafters of the Convention contemplated that a response to such a situation should come from the judicial branch of government of one of the signatory powers acting alone. 49
The abrogation of the former international standard of value by the Second Amendment was effected by the worldwide membership of the Fund and not by the United States acting alone.
The plaintiffs advanced an argument on the basis of the language of Article 22(4) of the Warsaw Convention: “These sums [in Poincaré francs] may be converted into any national currency in round figures.” The plaintiffs argued that the word “may” meant that conversion into currency was optional on the part of a complainant, who could exercise an option to receive compensation in gold itself. 50 The court rejected this argument.
The European cases on the application of gold units of account discussed in Section I demonstrate a judicial recognition of the profound changes that have taken place in the international monetary system and a judicial dedication to realism as a consequence. The Netherlands Supreme Court in The Blue Hawk saw an opportunity for realism in filling what the court considered to be a gap in Netherlands law. The activism of the House of Lords in the Miliangos case, which is discussed later, was pursued not in the cause of filling a gap in the law that had opened up because of developments in international monetary conditions but in order to change the law because of those developments.
The lower court in one of the three U.S. cases discussed in Section I recognized the profound changes that have occurred in international monetary conditions but did not consider itself free to apply the solution that seemed most justifiable in current conditions. The appellate court in the case could find no solution in those conditions. The court in a second case regarded the changes as less profound in their impact on the case. In neither case did a court, in contrast to the court in the third case, conclude that the changes justified the use of the market price of gold. The appellate court in the Franklin Mint case even preferred the unenforceability of the limits on liability under the Warsaw Convention to enforceability based on the market price of gold.
The problem discussed in Section II of this paper is whether courts will give judgments expressed in SDRs when claims are based on obligations that are denominated in SDRs and are to be discharged in SDRs. In this context, references to the SDRs in which payments are to be made are not to be understood as the SDRs allocated by the Fund to its members in order to supplement existing reserve assets, 51 but as contractual claims, which, if settled in currency, would be settled according to the Fund’s method of valuing the SDR. 52
The problem posed above could be formulated as one that would arise if the SDR were both the unit of account for the expression of an obligation and the means of payment of the obligation. It can be assumed that the problem could arise only in those jurisdictions in which the courts can express judgments in a foreign currency. If courts that can express judgments in foreign currency were to conclude that the SDR could be regarded as a currency, they should be able to express judgments in SDRs. Alternatively, if these courts did not regard the SDR as a currency, they might still decide that they could express judgments in SDRs on the ground that the SDR is composed, in determined amounts, of five currencies. At least four of the currencies, and perhaps all of them, would be currencies foreign to the forum. The alternative course, although defensible, could be misleading. It is common to speak of the SDR as “composed” of a basket of currencies. The SDR is not composed of the currencies in the sense that the SDR automatically entitles an obligee to have the obligation discharged in the currencies of the basket. In this respect, however, the SDR does not differ from a foreign currency. Denomination of a claim in a foreign currency does not mean that the currency is automatically the currency of payment. References to the composition of the SDR must be understood, primarily, to mean that the value of the SDR in relation to currencies is determined on the basis of the combined exchange value of the amounts of the five currencies in the basket.
The law of a number of countries, although not all, permits, or in certain circumstances even requires, judgments to be expressed in a foreign currency if the foreign currency is the money of payment. 53 The legal technique by which this result is reached may vary from jurisdiction to jurisdiction, and the economic or social influences that lead to the result may vary just as much. A dramatic event occurred in England, when, in 1975, the highest tribunal (the House of Lords) decided to reject the principle, which had been observed for centuries, that English courts could express their judgments only in sterling. The case in which this departure occurred, Miliangos v. George Frank (Textiles) Ltd., 54 is now famous not only for its impact on monetary law but also for its value as an example of judicial realism and activism. English courts have been candid about the influences that have produced the change. Formerly, the courts had acted in the belief that sterling was a stable currency, while many other currencies were not. To award a foreign creditor sterling was to give him protection against the depreciation of the foreign currency that was the money of payment. This practice promoted the reputation of En-gland as a center for commerce and finance, with a legal system and law that enhanced this reputation.
The situation changed once it became impossible to ignore the fact that sterling, like all other currencies, fluctuated in external value. According to Lord Denning, Master of the Rolls, in another case:
Why have we in England insisted on a judgment in sterling and nothing else? It is, I think, because of our faith in sterling. It was a stable currency which had no equal. Things are different now. Sterling floats in the wind. It changes like a weathercock with every gust that blows. So do other currencies. This change compels us to think again about our rules. 55
Lord Justice Lawton, in the same case, was equally eloquent:
If A sells and delivers goods to B, both justice and the law say that A should be paid the price. If B does not pay, the courts should do all in their power to see that A does not lose by B’s default—and it matters not that A is a trader outside the jurisdiction of this court or how the claim is based. Traders from overseas have been coming to this country for centuries. When the merchants from the Hanseatic towns and the Low Countries gathered together at Cambridge for the midsummer fair in the middle ages they would not have wanted to be paid with clipped coins which from time to time some kings put into circulation; and if the law merchant 56 enforced in the pie poudre 57 court at that fair had made them accept clipped coins, it is probable that they would never have come again. If the judgment under appeal in this case is right, a foreign trader who has agreed in his own country—in accordance with his own law—to sell and deliver goods here and who is entitled under his contract to be paid in his own currency, must accept the modern equivalent of clipped coins, now called devalued currency. If this be so, our courts and our law will have poor reputation in the market places of the world as long as our currency is unstable. 58
To give the creditor what he had contracted for in a foreign currency—perhaps his own—would subject him to the risk of changes in the external value of the currency that he had agreed to accept. That result was equitable. It was considered undesirable to subject the creditor to the risk of declining value in the currency of the forum to which he might have to resort because it was only in that forum that he was able to proceed against the debtor. The creditor had no control over the circumstances that made the debtor available for suit in a particular court.
English courts have decided, in the same spirit, that arbitrators in England can make an award in a foreign currency under a contract requiring the arbitration of disputes in England. Again, the influence responsible for the decision has been made clear:
… [I]f such an award is to be held bad solely because of the currency in which it is expressed, grave inconvenience will be caused to those who bring their disputes to this country for decision. They want an award which will enable them to recover the same amount as that which they ought in the first instance to have received. They do not want that recovery to be exposed, if it can be avoided, to exchange fluctuations between the currency in which they ought to have received the amount initially and the pound sterling, especially since the latter was allowed to float. 59
Why is it useful to consider the question whether judgments could be expressed in terms of the SDR? One reason is that in the Miliangos case the principle that judgments could be expressed in a foreign currency was coupled with the principle that if the debtor discharged the judgment debt in sterling, the rate of exchange for translating that debt into sterling was the rate at the date of payment and not at the date when the cause of action arose. 60 If a creditor was forced to demand sterling because the courts could award nothing but sterling, it was to be expected that the creditor would have to quantify his claim as of the date when his cause of action arose. 61 In this way, the creditor received protection against fluctuations in the exchange rate for the foreign currency during the period between entry into the contract and its breach. If, because sterling fluctuates, courts can express their judgments in a foreign currency, it becomes possible to protect a creditor against the risk of the depreciation of sterling up to the date of payment. The burden of this more extensive protection is borne by the defendant as the party who has failed to discharge his obligation on time. In the Miliangos case, Lord Wilberforce explained the justification as follows:
The situation as regards currency stability has substantially changed…Instead of the main world currencies being fixed and fairly stable in value, subject to the risk of periodic re- or de-valuations, many of them are now “floating”, ie they have no fixed exchange value even from day to day. This is true of sterling. This means that, instead of a situation in which changes of relative value occurred between the “breach-date” and the date of judgment or payment being the exception, so that a rule which did not provide for this case could be generally fair, this situation is now the rule. 62
The expression of judgments in SDRs in jurisdictions in which judgments can be formulated in a foreign currency should depend on a finding that a common practice has developed according to which the obligation of a contracting party is to provide SDR-denominated rights to the other contracting party, and that instruments or facilities are readily available for the discharge of such obligations. The proposition is that the SDR should achieve recognition as a currency for the purpose of judgments if the SDR is being treated to a substantial extent in the same way as a currency.
A few statutes already include the SDR within a definition of foreign currency, 63 but not much should be made of these definitions because they are adopted solely for the purpose of the statutes in which the definitions appear. The case for judgments expressed in the SDR must rest on practice in the markets, and particularly the financial markets. This matter is discussed later.
The proposition that judgments could be expressed in SDRs may seem unorthodox, 64 but the suggestion that judgments could be, and should be, expressed in a foreign currency was considered unorthodox in England before the Miliangos case and even by one of the Law Lords in that case. The House of Lords, however, refused to allow precedent to impede change in the law that would respond to change in international monetary conditions.
But if I am faced with the alternative of forcing commercial circles to fall in with a legal doctrine which has nothing but precedent to commend it or altering the doctrine so as to confirm [sic] with what commercial experience has worked out, I know where my choice lies. The law should be responsive as well as, at times, enunciatory, and good doctrine can seldom be divorced from sound practice. 65
Similarly, the House of Lords held the view that procedural considerations should not be allowed to obstruct good doctrine unless the obstruction was insurmountable:
… though English law (lex fori) prevails as regards procedural matters, it must surely be wrong in principle to allow procedure to affect, detrimentally, the substance of the creditor’s rights. Courts are bound by their own procedural law and must obey it, if imperative, though to do so may seem unjust. But if means exist for giving effect to the substance of a foreign obligation, conformably with the rules of private international law, procedure should not unnecessarily stand in the way. 66
The essence of the decision in the Miliangos case is that the creditor should receive what he bargained for. Therefore, the award to him should be the foreign currency in specie and not damages for breach of contract expressed in sterling on the procedural ground that only judgments expressed in sterling can be enforced by English procedures for the execution of judgments. What the creditor is entitled to receive is not the same as what the debtor can be forced to pay if the debtor does not satisfy a judgment by transferring to the creditor what he is entitled to receive. 67 The judgment is executed, if necessary, in sterling at the rate of exchange on the day when execution is ordered as the date as close as practicably possible to the date of payment. Nothing in this statement of the law would be inapplicable to circumstances in which the creditor was entitled to receive rights denominated in SDRs.
Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., garnishee), 68 decided by the English Court of Appeal, is one of the many consequences of the Miliangos case, but one that deserves special notice in this discussion. J. owed a debt in sterling to a company, which obtained a judgment expressed in sterling. J. did not discharge the judgment. He had accounts with credit balances, one of which was in U.S. dollars, at a London bank. Under English law, only “debts” owed to a judgment debtor can be attached (garnished, or garnisheed) to satisfy a judgment debt.
Before the Miliangos case, a debt owing in foreign currency to the judgment debtor was not regarded as a debt that could be attached. If the debt was not paid, the failure gave rise to an action by the judgment debtor for damages for breach of contract, but the right to damages could not be attached. The question in the case discussed here was whether the bank owed a debt to J. in respect of the balance in U.S. dollars that he held, and whether, if the bank owed a debt, that debt could be attached to satisfy the judgment in sterling the company had obtained against J.
The Court of Appeal held that because the Miliangos case established that a judgment can be expressed in a foreign currency, a sum standing to the credit of J. must be considered a debt payable to him, and a debt, therefore, that can be attached to satisfy a judgment against him in sterling.
Lord Denning, Master of the Rolls, went on to add a comment that is of interest in this discussion. The principles of this case, he said, could be adapted to other circumstances. For example, if a judgment creditor had a judgment in Swiss francs, he should be able to attach a credit at a bank, or other debt owed to the judgment debtor, in U.S. dollars. The decision is a further illustration of the adaptability of the law when claims are to be settled in a foreign currency. The principles of the case should permit, as a further example, the attachment of a U.S. dollar debt owed to a judgment debtor to settle a judgment against him in U.S. dollars. If, as is proposed above, market practices develop to the point at which it would be justifiable to express a judgment in SDRs, a judgment creditor should be allowed to attach a credit balance denominated in SDRs held by the judgment debtor with a bank. The practice of holding bank accounts denominated in SDRs has become widespread.
The further step beyond the Miliangos case that is contemplated in this Section II would be in response to the same monetary developments, and would be intended to serve the same purposes, as motivated that decision. Contracting parties often choose a currency of payment that is foreign to one or both of them because the external values of currencies now fluctuate. If obligations are to be settled in SDRs, the objective of the parties is even more obviously to minimize the risks of fluctuation in the exchange rates of currencies. The business of a financial center in a country can be protected or promoted if there is the assurance that the courts of the country will award what has been bargained for and is readily available for carrying out the bargain.
There is evidence of the practice of contracting for payment in rights denominated in SDRs, although the practice has been modest so far, probably because of the absence of widespread clearing arrangements in SDRs. For example, the agreement for a major syndicated loan entered into in 1981 provided, with respect to that part of the loan that was denominated in SDRs, that if the borrower and the agent bank agree that there has been a sufficient development in the international banking system to enable SDRs to be treated as a currency for the purposes of the agreement, the agent will notify the participating banks, and thereafter repayments, prepayments, and interest are to be paid in SDRs and not in dollars.
The parties have clarified what they mean by the SDR as a currency for the purposes of their agreement. They mean that SDRs are being transferred, lent, and otherwise dealt in without the need for the settlement of obligations in U.S. dollars, which, in the absence of this development, would be the currency of payment.
The loan agreement also provides that any participating bank may give notice to the agent and the borrower that it is prepared to accept repayments, prepayments, and interest in SDRs, and if the borrower and the agent agree, the borrower will then be authorized to satisfy its obligations to the participant bank in SDRs.
Drawings by the borrower under the SDR tranche of the loan are satisfied by the participating banks in the U.S. dollar value of their commitments. If, however, repayments and prepayments of principal and payments of interest have become subject to discharge in SDRs, drawings of principal are to be satisfied in such funds as are customary for the settlement of international banking transactions in SDRs. The agent transfers such funds to the account of the borrower at the bank it has selected. Similarly, repayments, prepayments, and the payment of interest are to be made in such funds as are customary for the settlement of international banking transactions in SDRs.
Another agreement entered into in 1981, for the issue of floating rate notes, provides that the notes are denominated, and are to be paid for, in SDRs. The payment of interest and the reimbursement of principal are to be made to the bearer of a note by credit or transfer to an SDR account unless notes and coupons have become payable or are deemed to be denominated in U.S. dollars in accordance with provisions of the agreement. One of the circumstances in which the obligations in SDRs are transformed under this caveat is that SDR deposits are not freely available in London interbank transactions in normal market conditions.
Markets in SDR instruments have developed rapidly in the recent past, largely as a result of the simplification of the method of valuation of the SDR, which became effective on January 1, 1981 and according to which the basket that determines the value of the SDR consists of 5 currencies instead of 16. The issue of short-term certificates of deposit (CDs) denominated in SDRs by the London Branch of Chemical Bank in June 1980 has led to a broader market in these instruments in which a number of banks in London cooperate to achieve uniform practice. A London Banks SDR Committee has been formed and maintains liaison with other interested bodies, such as the British Bankers Association and the International CD Market Association. The Committee’s interests in activities involving the SDR have broadened considerably beyond the CD.
Other instruments denominated in SDRs that have emerged include floating rate CDs, Eurobonds, and floating rate notes. Particular importance attaches to deposit accounts. Time deposits came first and are being offered by an increasing number of commercial banks in many of the main financial centers. An advance occurred when Morgan Guaranty Trust Company’s Brussels Office announced on March 13,1981 that it had established a system to enable clients to open current accounts or demand deposit accounts. The system makes it possible for holders of these accounts to borrow, lend, receive, and make payments in SDRs. For users of this system, it is no longer necessary for settlements of obligations denominated in SDRs to be made through the medium of currencies. Participants in the clearing system for Eurobonds (known as Euroclear) can purchase bonds denominated in SDRs by debit of an SDR-denominated current account held with Euroclear. A market has developed in which SDR-denominated claims can be bought and sold forward. 69 The development of convenient clearing arrangements to facilitate settlements with SDR-denominated rights is indispensable for a substantial increase in contracts calling for, or permitting, such settlement.
No case has arisen so far in which rights expressed in SDRs have been involved, but on March 9, 1977, the Court of Justice of the European Communities decided a case, Société anonyme générale Sucrière and Others v. Commission of the European Communities and Others, 70 in which the EUA (European unit of account) was in issue. The decision has no direct bearing on the SDR because the EUA was not a means of payment in the case, but some aspects of the decision deserve notice.
The Commission of the European Community had imposed fines on some companies because they had infringed provisions of the Treaty of Rome by practices in restraint of trade. The Commission was authorized to impose fines of 1,000 to 1,000,000 u.a. or fines of a greater amount but not exceeding 10 per cent of turnover in the preceding business year. The fines were formulated as a number of u.a. (units of account) followed by an amount in currency, in accordance with this model: “a fine of 400,000 u.a…., that is FF 2 221676.” By a decision of December 16, 1975, the court annulled some fines and reduced others, using the following formula: “80,000 u.a. (FF 444 335.20).” 71 The currency mentioned in the decision was the currency of the country in which a company had its principal place of business. On February 6,1976, two companies on which reduced fines had been imposed paid amounts of Italian lire to the Commission in respect of fines that were expressed in French francs as well as units of account. The lira at that time was the weakest of the Community’s currencies. The Commission informed the companies that it did not object to payment in the currency of any member of the Community, but the Commission contended that the amount of the debt was the amount of currency shown in the judgment and that this amount had to be translated into another currency at the rate of exchange on the day of payment.
The EUA was defined as 0.88867088 gram of fine gold. The payments were made on the basis of the par value for the lira that had been established under the Fund’s Articles. Legally, the par value was still in existence under the Articles when the payments were made. The amounts of French francs in the court’s decision were based on the par value for the French franc. The lira had depreciated in the market, with the result that the payments were substantially less than they would have been if the exchange rate in the market had been the basis for the calculation.
The companies challenged the Commission’s view that Italian lire had to be paid on the basis of the market exchange rate between the lira and the French franc if the lira was the currency of payment. They argued that the amounts of the debts were fixed by the courts in EUAs and that the amounts in French francs were no more than “an indication.” A regulation of the Council authorized the Commission to impose fines in the unit of account that was used in drawing up the Community’s budget. The regulation on the budget provided that:
The financial contributions from Member States fixed by the budget shall be expressed in units of account as defined in Article 10. They shall be converted into the respective national currencies on the basis of the relationship existing on the day of their payment between the weight of fine gold contained in a unit of account as referred to above and the weight of fine gold corresponding to parity in respect of each of those currencies as declared to the International Monetary Fund. Should the currency of one or more of the Member States cease to have any declared parity with the International Monetary Fund, the Commission shall propose appropriate measures to the Council.
One argument on behalf of the companies was that the regulation had to be applied as written until it was amended. The Commission had submitted a proposal to the Council for amendment of the regulation on the unit of account by defining it in terms of a basket of currencies and by providing for translation into national currency by reference to daily exchange rates. The companies argued that the court could not anticipate the adoption of this proposal by taking account of exchange rates in the market. This argument resembles the one that was advanced without success in The Blue Hawk.
The Advocate-General reminded the court that decisions of the Commission imposing fines and judgments of the court were enforceable in the member states of the Community according to the rules of civil procedure of the state in which enforcement was carried out. Although there were states of the Community—such as England, the Federal Republic of Germany, and Italy—in which execution can be levied on a judgment for an amount in foreign currency, there was no country in which an obligation expressed in units of account alone could be enforced. It was essential, therefore, that while fines and judgments had to be expressed in units of account to ascertain that the prescribed limits on fines were being observed, fines and judgments had to be expressed in a currency so that they could be enforced. When the court included an amount of currency within brackets in its decision, the court intended that the amount was to be the amount of the fine for which, if necessary, the Commission was to be allowed to levy execution. Nothing prevented the Commission from accepting another currency, but it was not bound to accept it at any rate of exchange other than the market rate at the date of payment.
The Advocate-General argued that the reason why the regulation establishing the limits on fines referred only to units of account was that the regulation was promulgated in the days of the par value system. It had made no difference whether fines were denominated in units of account defined in relation to gold or in a currency. This argument of the Advocate-General was not persuasive because a currency might have been revalued or devalued after a fine was imposed and before judgment. He was aware of this possibility, but dismissed these changes of par value as rare events.
The court held, on its interpretation of the regulation, that neither the Commission nor the court was precluded from expressing a fine in terms of a currency. Moreover, it was essential to do so in order to make enforcement possible. The court agreed that sums were expressed in units of account only to ascertain that the prescribed limits on fines were being observed.
The court agreed that the Commission was entitled to express the fines in French francs, and that the Commission could accept payment in another currency of the Community. There was no regulation that determined how the currency in which the fine was expressed had to be translated into another currency as the currency of payment. The conditions in which par values had been established no longer prevailed. There was no reason, therefore, why, in the silence of the regulations, the par values had to be applied. The Commission was bound to ensure that the actual value of payments made in another currency corresponded to the value of the currency in which fines were expressed. The actual value had to be determined by reference to the exchange market on the day of payment. It will be observed that the court chose realism in preference to the anachronism of par values where it thought that the opportunity existed.
The court endorsed the proposition that judgments cannot be enforced within a jurisdiction unless expressed in the currency of that jurisdiction. A difference between the SDR today and the EUA at the date of the decision, in addition to the fact that the EUA was in no sense a means of payment, is that the value of the SDR in terms of any currency of payment can be determined directly by reference to rates of exchange in the market but the value of the EUA in terms of currencies of payment could not. The EUA was defined in terms of gold and not currencies. The only solution that did not rely completely on ineffective par values was for the Commission and the court to express fines in a currency as well as in units of account and then to apply the exchange rate in the market between that currency and the currency of payment. The amount of the currency chosen for expressing a fine had to be based on its par value, 72 even though the par value was ineffective, because there was no other way in which to translate the EUA into a currency. The SDR at that time was still defined in relation to gold and not a basket of currencies. The solution now adopted by some courts for applying a gold unit of account by going through the medium of the SDR, as discussed in Section I, was not available. The problem would have been the same if the case decided by the European Court of Justice had involved the SDR instead of the EUA.
The difficulty that a court would have had in such a case no longer exists. A court would find it no more difficult to enforce a judgment expressed in SDRs than to enforce one expressed in a foreign currency under the Miliangos doctrine. Execution of a judgment expressed either in SDRs or in a foreign currency would be decreed in the currency of the forum, if execution became necessary, by referring to exchange rates in the market in order to translate the SDR, 73 in the one case, or the foreign currency, in the other case, into the currency of the forum.
In contrast to the House of Lords in the Miliangos case, the European Court of Justice saw no way by which the hurdle of procedure could be surmounted if a court had been called upon to enforce a judgment expressed solely in the EUA, but the problem was not simply procedural. As noted already, the difficulty would have been to find a way 74 in which to apply a unit of account defined by reference to gold when currencies were floating. It will be interesting to see whether the court will consider itself bound by all aspects of the decision if a problem arises involving the European Currency Unit (ECU). The ECU, like the SDR, can be translated directly into currency at market rates of exchange, and rights denominated in ECUs are increasingly considered by governments and private parties to be means of payment. 75
Sir Joseph Gold, Senior Consultant and formerly the General Counsel and Director of the Legal Department of the Fund, is a graduate of the Universities of London and Harvard. He is the author of numerous books, pamphlets, and essays on the Fund and on international and national monetary law.
Dorothy Meadow Sobol, “The SDR in Private International Finance,” Federal Reserve Bank of New York, Quarterly Review, Vol. 6 (Winter 1981-82), pp. 29-41; Lawrence de V. Wragg, “Commercial Transactions in SDRs—Some Documentation Considerations,” Business Law Review, Vol. 2 (October 1981), pp. 315-17; Joseph Gold, “Development of the SDR as Reserve Asset, Unit of Account, and Denominator: A Survey,” George Washington Journal of International Law and Economics, Vol. 16 (No. 1, 1981), pp. 1-64 (hereinafter cited as Gold, Development of SDR).
The SDR might become involved in litigation under international conventions in which the SDR as unit of account has been substituted for gold. But the legal problem discussed in Section II of this paper is not likely to be raised in these cases because the conventions usually provide for recoveries in the currency of the forum.
The Poincaré franc is defined as 65½ milligrams of gold, nine-tenths fine; the Germinal franc is defined as 10/31 gram, nine-tenths fine.
Joseph Gold, SDRs, Currencies, and Gold: Fourth Survey of New Legal Developments, IMF Pamphlet Series, No. 33 (Washington, 1980), pp. 20-39 (hereinafter cited as Gold, Pamphlet No. 33); SDRs, Currencies, and Gold: Fifth Survey of New Legal Developments, IMF Pamphlet Series, No. 36 (Washington, 1981), pp. 26-34 (hereinafter cited as Gold, Pamphlet No. 36).
Article IV, Section 2(b).
See, for example, Joseph Gold, SDRs, Gold, and Currencies: Third Survey of New Legal Developments, IMF Pamphlet Series, No. 26 (Washington, 1979), pp. 35-38 (hereinafter cited as Gold, Pamphlet No. 26).
Joseph Gold, “Appendix B: Judicial Application of Gold Units of Account,” in his The Fund Agreement in the Courts: Vol. II—Further Jurisprudence Involving the Articles of Agreement of the International Monetary Fund (Washington, 1982), pp. 439-57. (Hereinafter cited as Gold, Fund Agreement in the Courts: Vol II.)
Hamburg District Court, Div. 64, Ref. No. 64 SRV 6/76.
European Transport Law, Vol. 9 (1974), pp. 701-10; Joseph Gold, Floating Currencies, Gold, and SDRs: Some Recent Legal Developments, IMF Pamphlet Series, No. 19 (Washington, 1976), pp. 17-33 (hereinafter cited as Gold, Pamphlet No. 19).
Selected Decisions of the International Monetary Fund and Selected Documents, Eighth Issue (Washington, May 10, 1976), p. 15.
Article XXI, Section 2 (First Amendment).
Communiqué of Committee of Twenty, June 13, 1974, paragraph 3(h), p. 220, and Outline of Reform, paragraph 38, annexed to Report to Board of Governors by Committee of Twenty, June 14,1974, p. 21, International Monetary Reform: Documents of the Committee of Twenty (Washington, 1974). The Fund’s first decision on the basket valuation was adopted on June 13, 1974, with effect on July 1, 1974 (Annual Report, 1974 (Washington, 1974), pp. 116-17).
The expert’s report ordered by the court noted that in January 1976 the Fund had decided that there should be a gradual reduction in the role of gold in the international monetary system and that the role of the SDR should be enhanced. The reference appears to be to the communiqué of the Interim Committee of the Board of Governors issued at Kingston, Jamaica on January 9, 1976 (AnnualReport, 1976, p. 126). The communiqué was not a decision of the Fund, and the Committee had reached agreement earlier on the two policies referred to by the expert (communiqué of January 16, 1975, paragraph 8, Annual Report, 1975, p. 98).
Rechtspraak van de Week, No. 69-70 (May 30,1981), pp. 321-30. Agreement has been reached on the substitution of the SDR for the Poincaré franc as the unit of account for the purposes that have been served by the Poincaré franc in the Brussels and the Warsaw Conventions. (Gold, Pamphlet No. 19, pp. 45-48; Joseph Gold, Floating Currencies, SDRs, and Gold: Further Legal Developments, IMF Pamphlet Series, No. 22 (Washington, 1977), pp. 33-35 (hereinafter cited as Gold, Pamphlet No. 22); Gold, Pamphlet No. 36, p. 34.) The new or amending conventions had not entered into force by the dates at which proceedings were brought in the three European cases discussed in the text.
By the time the Attorney General of the Supreme Court submitted his advisory opinion to the court, the draft Act Governing the Conversion of Units of Account Expressed in Gold into Netherlands Currency had passed the Lower House, but had not yet become law. The briefs submitted by the State and the owner of the Blue Hawk and the advisory opinion of the Attorney General of the Supreme Court include extensive references to Gold, Pamphlets Nos. 19, 22, 26, and 33.
Gold, Pamphlet No. 26, p. 86.
Paragraph 1 of Schedule C shows a preference for the SDR as the common denominator but does not make choice of the SDR mandatory. The Fund is bound to refrain from choosing gold or a currency as the common denominator.
One author has pointed out, however, that the market price can lead to the anomaly of recoveries greater than those based on the SDR on which agreement has been reached in the negotiation of the Montreal Protocols (L.R. Edwards, “The Liability of Air Carriers for Death and Personal Injury to Passengers,” Australian Law Journal, Vol. 56 (March 1982), p. 114).
The Attorney General cited also The Fund Agreement in the Courts: Parts VIII-XI (Washington, 1976), pp. 120-21 (now Gold, Fund Agreement in the2Courts: Vol. II, p. 188). See also Gold, Pamphlet No. 36, p. 8.
Hornlinie v. Société Nationale des Pétroles d’Aquitaine, Nederlandse Jurisprudentie, 1972, No. 269, pp. 728-38; Gold, Pamphlet No. 19, pp. 22-23; Gold, Fund Agreement in the Courts: Vol. II, pp. 177-81.
Rechtspraak van de Week, No. 69 (May 30, 1981), p. 327.
525 F. Supp. 1288 (1981).
Ibid., p. 1289.
The same result was reached in Electronic Memories and Magnetics Corp. v. The Flying Tiger Line, Inc., et al. (Superior Court of California, City and County of San Francisco, August 25, 1982).
525 F. Supp., p. 1289.
Note, however, that the CAB has approved or not objected to the filing of limits in excess of those specified by the Warsaw Convention when the increased limits are expressed in SDRs (Gold, Fund Agreement in the Courts: Vol. II p. 447, fn. 21).
CAB Order 81-3-143.
49 U.S.C., section 1373.
CAB Order 74-1-16, January 3, 1974. See Gold, Pamphlet No. 36, p. 82.
Public Law No. 92-268, Section 2, 86 Stat. 116 (1972); Public Law No. 93-110, 87 Stat. 352 (1973).
Public Law No. 94-564, Section 6, 90 Stat. 2660 (1976).
United Nations General Assembly, A/CONF. 39/27, May 23, 1969.
Docket No. 82-7012.
Ibid., p. 4.
Ibid, p. 11.
Ibid, p. 13.
A commentator reported in the Journal of Commerce (September 30,1982, pp. 1A, 5A) that the decision, if upheld, will cause “absolute chaos” for the airline industry and encourage forum shopping.
Docket No. 82-7012, p. vi, fn. 26.
Article XV, Section 2.
531 F. Supp. 344 (1981).
Ibid., p. 352.
535 F. Supp. 833 (1982).
Ibid., p. 843.
Ibid, p. 844.
See Gold, Pamphlet No. 36, p. 121 (fn. 245).
Article XVIII, Section 1(a). See also Article XV. It is possible to imagine claims to SDRs proper that arise under agreements to transfer them entered into by members or other holders of SDRs.
The distinction between SDRs proper and these claims gives rise to difficulties of terminology. The claims are sometimes said to be expressed in “private” SDRs in contrast to “official” SDRs. “Private” can be a misleading adjective because the claims can exist between official parties or between an official and a private party (Gold, Development of SDR, pp. 5-6). Even “Fund” and “non-Fund” SDRs would be misleading because the Fund has entered into contractual obligations denominated in SDRs. To avoid imprecise or cumbersome locutions, “SDRs” without adjectives will refer to the claims that are the subject of discussion, but with the understanding that is expressed in the sentence of the paper to which this footnote is attached.
See F.A. Mann, The Legal Aspect of Money (Oxford, 4th ed., 1982), pp. 339-47; Khaled Chebil, “Les jugements relatifs aux créances libellées en monnaie étrangerè en droit anglais, français et canadien,” McGill Law Journal, Vol. 27 (No. 2, 1982), pp. 299-329; Joseph D. Becker, “The Currency of Judgment,” American Journal of Comparative Law, Vol. 25 (1977), pp. 152-59; Gold, Pamphlet No. 22, pp. 18-19; Gold, Pamphlet No. 33, pp. 80-81.
 A.C. 509;  3 All E.R. 801.
Schorsch Meier GmbH v. Hennin  1 All E.R. 152, 155.
“The law merchant or lex mercatoria was originally a separate body of law … administered in separate or special courts. It bore some analogy to the Roman system known as ‘jus gentium’. The lex mercatoria was not, like the common law, the custom of a place or territory; it was the recognized custom of merchants and traders who had business relations in all the countries of Europe, including England. The merchant class and the controversies of its members arising out of commercial transactions, were not subject to the common law. During the sixteenth century the admiralty court declared the principles of the law merchant. Later, the common law judges encroached upon the field of admiralty over commercial transactions. Thus, the law merchant gradually became a part of the legal system of England.” (Ballentine’s Law Dictionary, 3rd ed Rochester, N.Y., 1969, p. 713.)
Pie poudre is sometimes rendered as piepowder or pie powder. According to one view the expression was derived from the Norman-French pied poudre. The courts were so named because of the dusty shoes of the merchant-suitors or because justice was as swift as dust falling from the feet. According to another view, the expression can be traced to pied puldreaux, a peddler.
 1 All E.R. 152, 158.
Jugoslavenska Oceanska Plovidba v. Castle Investment Co. Inc.  3 All E.R. 498, 504. The English Arbitration Act, 1979, Ch. 42 is an effort by England to maintain its position as a center for international arbitration. See David W. Shenton and Gordon K. Toland, “London as a Venue for International Arbitration: The Arbitration Act, 1979,” Law and Policy in International Business, Vol. 12 (1980), pp. 643-76.
A creditor sometimes protects itself by obtaining agreement on a term under which, if the currency awarded by a court differs from the currency of payment under the contract, the debtor will hold the creditor harmless against any deficiency resulting from change in the rate of exchange used for translating the currency of payment into the currency of judgment that occurs between the date as of which the exchange rate is chosen for the translation and the date of discharge of the judgment. Such a term does not give the creditor protection against changes in exchange rates that occur before the date of judgment, but the SDR as the unit of account does give this protection. Moreover, the effectiveness of the term may depend on a second round of proceedings, while the Miliangos decision applied to the SDR would obviate the necessity for proceedings to pursue a further claim.
Another practical possibility, however, although not adopted by the courts, would have been for the creditor to claim on the basis of the rate of exchange at the date when he initiated proceedings to recover.
 3 All E.R. 801, 809.
See, for example, The International Finance, Trade and Aid Act, 1977 (1977 Chapter 6) and Export Guarantees and Overseas Investment Act, 1978 (1978 Chapter 18), of the United Kingdom. The South African Reserve Bank Amendment Act No. 92 of 1977, Section 17B.(1) includes SDRs allocated by the Fund among “assets … expressed in currencies other than the currency of the Republic.” See also Gold, Pamphlet No. 36, pp. 34-36, and Financial Accounting Standards Board, Foreign Currency Translation, Statement of Financial Accounting Standards No. 52 (December 1981), p. 76.
”Orthodoxy is my doxy; heterodoxy is another man’s doxy” (Bishop William Warburton, 1698-1779).
 3 All E.R. 801, 810.
Ibid., p. 811.
This statement is subject to what is said later about garnishee proceedings, in which it is possible that a judgment might be enforceable in what the debtor is bound to pay.
 1 All E.R. 225.
For more details on these and similar developments, see the articles referred to in fn. 1 supra.
Joined Cases 41, 43, and 44/73, Reports of Cases before the Court  E.C.R. 445.
Coöperatieve vereniging “Suiker Unie” UA and Others v. Commission of the European Communities, Joined Cases 40 to 48, 50, 54 to 56, 111, 113, and 114/73  E.C.R. 1663, 2026.
There was much discussion in the case of the discriminatory effects of the formulation of the fines as an amount of currency. Various discriminatory consequences were alleged by the companies, but the court and the Advocate-General advanced reasons to rebut these allegations. Nevertheless, it is doubtful that the unit of account, which was intended to ensure uniformity as one of its objectives, did achieve that result as applied by the court. Uniformity must mean equality of value in relation to some standard. The decision chose the standard of par values. The fines were calculated according to the par value of the currency of the country in which a company had its principal place of business. Therefore, if a currency had appreciated in the market, the effective burden on a company was heavier than on a company whose currency had depreciated.
The Fund publishes the value of the SDR in terms of currencies.
Members of the European Community have already gone a long way in treating the European Currency Unit (ECU) as a unit of account and means of payment as if it were a foreign currency. In this respect, they have gone further than in their treatment of the SDR. One reason is that the ECU is composed of Community currencies only, and another is that margins of fluctuation are observed for most of these currencies.
H. Peter Dryer, “Private Sector Use of ECU Rising,” Journal of Commerce (April 15, 1982), p. 6A; Christopher Hugues, “Nouvelles opérations en ECU,” Le Monde (June 28,1982), p. 16; “Ecus: The bankers’ choice,” The Economist, Vol. 285, No. 7257 (October 2,1982), p. 52. The English Law Revision Commission notes that European Community judgments are registrable, in English law, in the foreign currency in which they are expressed, and that, “presumably,” they include the EUA. A Community judgment is one rendered by specified European bodies, such as the European Court of Justice. These judgments include decisions of the Commission imposing fines or penalties expressed in EUAs. (Private International Law [:] Foreign Money Liabilities, the Law Commission, Working Paper No. 80 (London, July 31, 1981), Paragraph 2.55, pp. 50-51, particularly fns. 143 and 145.)
Stable Monetary Growth and Exchange Rates as Policy Targets—JAMES M. BOUGHTON (pages 495-526)
This study analyzes the circumstances under which monetary policy can be conducted so as to improve the stability of both monetary growth and exchange rates. For this purpose, the paper develops a portfolio balance model and tests its implications using parameter estimates for the United States and the United Kingdom. The principal finding is that there is a limited set of conditions in which stability of monetary growth and stability of exchange rates are consistent policy objectives.
The stability issue is relevant over short periods during which the authorities are unable to control monetary growth precisely. The best short-run strategy for the conduct of monetary policy in this situation is to choose an intervention rule for domestic open market operations (or for whatever the preferred policy instrument may be) that is most likely to lead to stability of intermediate target variables. If it is possible to choose an intervention rule that stabilizes two target variables, then those variables may be said to be “operationally consistent” policy targets.
The two intervention rules compared here are stylized versions of rules that are commonly employed by central banks in countries with well-developed financial markets: control of the growth of the monetary base and control of a short-term interest rate. It is shown that a general rule is that when the supply function for money is more variable than the demand function, then monetary stability and exchange rate stability are likely to be operationally consistent targets. If the demand function is more variable than the supply, then the two targets are less likely to be consistent; the authorities must in that case choose whether monetary stability or exchange rate stability is more important and select a policy strategy accordingly.
Exchange Rate Variability: Alternative Measures and Interpretation—ANTHONY LANYI and ESTHER C. SUSS (pages 527-60)
Many countries have attempted to choose exchange rate arrangements that limit the variability of their exchange rates in order to avert costs arising from such variability. The paper discusses some of these costs—both those incurred during the short run, when contract prices in foreign trade are fixed, and those incurred in the longer run. Three alternative indices for measuring variability are defined: an EV index, the weighted sum of bilateral exchange rate variabilities; a VEER index, the variability of an effective exchange rate index; and an RVEER index, the variability of an index of effective exchange rates adjusted by relative price levels. It is argued that the EV index is the most relevant for assessing short-run costs, while the VEER and RVEER indices are more relevant for assessing longer-run costs.
Each index is calculated for the actual exchange rate developments for 118 countries from 1973 to 1980 and is simulated for six alternative exchange arrangements. By comparing the actual variability index with the simulated values, it is shown that the magnitude of exchange rate variability is influenced by the choice of arrangement and that the same arrangement often does not minimize both measures of variability, so that countries may have to choose, in effect, between minimizing short-run or long-run costs.
Most countries, however, could have simultaneously minimized all three measures of variability with a common arrangement. The fact that many countries in this position did not in fact do so indicates that other important considerations affect the choice of exchange arrangement. It is nevertheless notable that most countries choose an exchange arrangement under which exchange rate variability, as defined by one or more of the measures, did not differ significantly from the minimum as defined in this paper.
Fiscal Adjustment and Fund-Supported Programs, 1971-80—MARGARET R. KELLY (pages 561-602)
A recent staff paper concluded that countries that undertook Fund-supported programs in the 1970s achieved significant absolute and relative reductions in their external deficits and a relative reduction in average domestic inflation rates, compared with other non-oil developing countries. These adjustments generally were not achieved at a cost of lower real rates of growth and consumption.
The paper investigates the extent to which reductions in external deficits resulted from adjustments in the financial position of the government (as opposed to that of the rest of the economy). The analysis utilizes national income and monetary survey identities to specify relationships between fiscal and balance of payments variables. The results reinforce the importance attached to fiscal targets and performance clauses in Fund programs. They also show that (i) external imbalances in preprogram years tended to be associated with large fiscal imbalances; (ii) reductions/increases (relative to gross national product (GNP)) in the deficit on the current account of the balance of payments in program years were associated with reductions/increases (relative to GNP) in the overall government deficit (on average, reductions in fiscal deficits accounted for 40 per cent of the reduction in current account deficits); and (iii) the overall balance of payments and domestically financed budget deficit also tended to move in the same direction. Large absolute (and relative) reductions in financial deficits were also observed in the rest of the economy in a number of programs.
The paper also examines policies for reducing fiscal deficits in terms of their effects on growth and medium-term balance of payments performance. It argues that policies based on disaggregated analysis are likely to be more useful than those based on aggregative analysis; it stresses the desirability of designing revenue and expenditure policies in consultation with tax specialists and project specialists in major development agencies.
Debt Capacity and Developing Country Borrowing: A Survey of the Literature—DONOGH C. MCDONALD (pages 603-46)
The rapid rise in the external debt obligations of the developing countries during the 1970s has given rise to concern that individual developing countries have been borrowing too much and that lenders may have overextended themselves. This paper surveys the literature on developing country debt insofar as it relates to debt capacity issues.
First, the paper looks at some relevant theoretical contributions. The principal emphasis in this part of the literature has been on the role of external borrowing in financing investment. More recently, increased attention has been given to the consumption-smoothing roles of external finance. The next section of the paper covers attempts in the literature to empirically identify those circumstances under which countries have experienced debt-servicing difficulties, with particular attention given to econometric analyses of instances of debt reschedulings. Then, attention turns to studies that focus on factors influencing the supply of loans and the financial instruments used in lending to developing countries. Finally, there is some discussion of issues related to the management of external debt.
The main conclusion of the survey is that easily applied rules for answering questions, such as those raised in the opening sentence of this summary, are unlikely to be forthcoming. The evaluation process must rely, to a considerable extent, on judgment. However, an understanding of the principles emphasized and issues raised in the literature is important as a guide to making such judgments.
The Fund Agreement in the Courts—XVIII: The SDR in the Courts—JOSEPH GOLD (pages 647-81)
The first part of this article discusses cases in which the “SDR solution” has been adopted or advocated when the problem is the application of a unit of account, such as the Poincaré or Germinal franc, that is defined in terms of gold. Limitations on liability have been expressed in these units in numerous treaties. The special drawing right (SDR) will be the unit of account in amending or substitute treaties, but the amendments or new treaties have not yet become effective. The difficulty in applying a gold unit is that the Fund’s Articles of Agreement have abrogated the official price of gold. Under the SDR solution, an amount in gold francs is translated into SDRs on the basis of the former definition of the SDR in terms of gold and the definition of the gold franc, and the Fund’s valuation of the SDR in terms of the currency of the forum is then applied to the amount of SDRs resulting from the translation.
The SDR solution has been applied by courts in Hamburg and Rome, but the leading case is a decision of the Supreme Court of the Netherlands, which held that there is a gap in the law that courts must fill. The court regarded the SDR as the successor to gold as the internationally accepted unit of account. Some courts in the United States have held in favor of the last official price of gold or the market price, but one decision holds that provisions based on a gold unit are unenforceable.
The second part of the article considers a problem that has not yet been litigated: could courts that are able to express judgments in a foreign currency express judgments in SDRs when contracts call for the transfer of SDR-denominated rights? Two major international agreements entered into in 1981 make provision for such payments.
In England, the law has been changed by the momentous decision in the Miliangos case, which permits judgments to be expressed in foreign currencies when appropriate. The reasoning in the case would justify the expression of judgments in SDRs if SDR-denominated rights are to be transferred, but courts might want to be satisfied that these rights are readily available.
A decision of the European Court of Justice holds that a judgment expressed solely in the European unit of account could not be enforced, but at the time of the decision there was no realistic way in which that unit could be translated directly into currency. This difficulty does not exist now for the SDR or the European Currency Unit. Moreover, the Miliangos case shows that although a judgment expressed in a foreign currency can be enforced only in the domestic currency, that procedural rule is not an objection to a substantive rule that permits judgments to be expressed in a foreign currency. The rate of exchange at the date when a court decrees enforcement of such a judgment is applied, and not the breach-date rule. This choice of rate provides more effective protection for the obligee, who seeks protection by bargaining for a foreign currency as the unit of account. That is his motive also when the SDR is the chosen unit.
Stabilisation de la croissance de la masse monétaire et des taux de change comme objectifs de politique monétaire—JAMES M. BOUGHTON (pages 495-526)
L’auteur de la présente étude analyse les conditions dans lesquelles on peut utiliser la politique monétaire pour améliorer la stabilité à la fois de la croissance monétaire et des taux de change. A cet effet, il construit un modèle d’équilibre de portefeuille et en vérifie les conséquences en utilisant des estimations de paramètres pour les Etats-Unis et le Royaume-Uni. Sa principale conclusion est qu’il existe un nombre restreint de situations dans lesquelles la stabilité de la croissance monétaire et la stabilité des taux de change sont des objectifs compatibles de politique monétaire.
Le problème de la stabilité concerne de courtes périodes pendant lesquelles les autorités ne sont pas en mesure d’exercer un contrôle précis de la croissance monétaire. Dans ce cas, la meilleure stratégie à court terme en matière de politique monétaire est de choisir, pour les opérations intérieures d’open market ou pour tout instrument de politiques que les autorités préfèrent appliquer, le principe d’intervention qui est le plus susceptible d’assurer la stabilité des variables intermédiaires fixées comme objectifs. S’il est possible de choisir un principe d’intervention qui stabilise deux variables-objectifs, on peut dire que celles-ci sont des objectifs monétaires “compatibles d’un point de vue opérationnel”.
Les deux principes d’intervention que l’auteur compare dans la présente étude sont des versions des principes que les banques centrales qui ont des marchés financiers développés utilisent ordinairement, à savoir le contrôle de la croissance de la base monétaire et le contrôle du taux d’intérêt à court terme. L’auteur montre qu’en général, lorsque la fonction de l’offre de monnaie est plus variable que la fonction de la demande, il est probable que la stabilité monétaire et la stabilité du taux de change sont des objectifs compatibles d’un point de vue opérationnel. Si la fonction de la demande est plus variable que celle de l’offre, il est moins probable que les deux objectifs sont compatibles; dans ce cas, les autorités doivent décider lequel est l’objectif le plus important: stabilité monétaire ou stabilité du taux de change et doivent choisir une stratégie monétaire en conséquence.
Variabilité du taux de change: différentes manières de la mesurer et interprétation — ANTHONY LANYI et ESTHER C. SUSS (pages 527-60)
Maints pays se sont efforcés de choisir un régime de change susceptible de limiter la variabilité de leur taux de change pour éviter les coûts qui en découlent. Les auteurs examinent certains de ces coûts — les coûts à court terme lorsque les prix forfaitaires pratiqués dans les échanges internationaux sont fixes et à la fois les coûts à long terme. Ils établissent plusieurs indices possibles permettant de mesurer la variabilité: un indice EV qui correspond à la somme pondérée des variabilités du taux de change bilatéral; un índice VEER, soit la variabilité d’un indice de taux de change effectif; et un indice RVEER, soit la variabilité des taux de change effectifs ajustés en fonction des niveaux des prix relatifs. Il est soutenu que l’indice EV convient mieux pour évaluer les coûts à court terme, tandis que les indices VEER et RVEER conviennent mieux pour évaluer les coûts à long terme.
Les auteurs ont calculé chaque indice de l’évolution variable du taux de change dans 118 pays entre 1973 et 1980 et ils ont effectué des simulations pour six régimes de change différents. Une comparaison entre l’indice de variabilité et les valeurs obtenues par simulation indique que le choix du régime de change influe sur l’ampleur de la variabilité du taux de change et que souvent le même régime ne minimise pas les deux mesures de la variabilité; de ce fait, il se peut que les pays doivent choisir entre minimiser les coûts à court terme ou minimiser les coûts à long terme.
La plupart des pays, toutefois, auraient pu simultanément minimiser les trois mesures de la variabilité au moyen d’un régime de change commun. Le fait que de nombreux pays dans cette situation n’en ont rien fait indique que d’autres considérations importantes interviennent dans le choix du régime de change. Néanmoins, il est remarquable que la plupart des pays choisissent un régime de change dans le cadre duquel la variabilité du taux de change, définie par une ou plusieurs de ces mesures, ne diffère pas de manière significative du minimum tel qu’il est défini dans la présente étude.
Ajustement budgétaire et programmes bénéficiant de l’aide du FMI, 1971-80 — MARGARET R. KELLY (pages 561-602)
Une récente étude des services du Fonds aboutit à la conclusion que les pays qui, dans la décennie 70, ont appliqué des programmes bénéficiant de l’aide du Fonds ont sensiblement réduit leur déficit extérieur, en termes absolus et en termes relatifs, et abaissé leurs taux moyens d’inflation par rapport à d’autres pays en développement non pétroliers. Ces ajustements n’ont, en général, pas été opérés au prix d’une baisse des taux réels de croissance et de consommation.
La présente étude a pour objet de déterminer la mesure dans laquelle l’ajustement de la position financière du secteur public (par opposition à celle du reste de l’économie) a contribué à la réduction des déficits extérieurs. Pour analyser les relations entre les variables budgétaires et les variables de la balance des paiements, l’auteur utilise deux identités, celle du revenu national et celle de la situation monétaire. Les résultats soulignent l’importance qui est attachée aux objectifs budgétaires et aux critères de réalisation dans les programmes du Fonds. Ils montrent aussi que: i) les déséquilibres extérieurs enregistrés dans les années précédant l’application des programmes sont souvent liés à d’importants déséquilibres budgétaires; ii) les diminutions ou augmentations (par rapport au produit national brut — PNB) du déficit courant de la balance des paiements pendant la durée d’exécution des programmes sont liées aux diminutions ou augmentations (par rapport au PNB) du déficit global du secteur public (en moyenne, la réduction des déficits budgétaires a contribué pour 40 % à la réduction des déficits courants); iii) la balance globale des paiements et le déficit budgétaire financé par des ressources intérieures tendent aussi à évoluer dans le même sens. On a observé en outre que, dans plusieurs cas, les programmes avaient permis aussi de réduire sensiblement les déficits financiers dans le reste de l’économie en termes absolus (et relatifs).
L’étude examine, par ailleurs, les mesures qui, par leurs effets sur la croissance et sur les résultats à moyen terme de la balance des paiements, contribuent à réduire les déficits budgétaires. L’auteur fait valoir que les mesures qui se fondent sur une analyse détaillée des agrégats seront sans doute plus efficaces que celles qui reposent sur une analyse globale des agrégats; il est bon, souligne l’auteur, que les décisions en matière de recettes et de dépenses soient prises après consultation des experts en fiscalité et des spécialistes des pro jets travaillant dans des principaux organismes de développement.
Capacité d’endettement et emprunts des pays en développement — aperçu des études consacrées à cette question — DONOGH C. MCDONALD (pages 603-46)
En raison de l’augmentation rapide au cours des années 70, des obligations des pays en développement au titre de la dette extérieure, on se demande avec inquiétude si le montant des emprunts contractés par chaque pays en développement en particulier n’est pas excessif et du côté des bailleurs de fonds, on n’assiste pas à un phénomène de surcharge. L’auteur de la présente étude qui traite de la capacité d’endettement des pays en développement donne un aperçu de ce qui a été écrit jusqu’à présent sur la dette des pays en développement.
Premièrement, l’auteur examine certaines contributions théoriques importantes; celles-ci mettent généralement l’accent sur le rôle des emprunts extérieurs dans le financement des investissements. Ces derniers temps, l’attention s’est davantage portée sur le financement extérieur en tant qu’élément régulateur de la consommation. Le chapitre suivant est consacré aux études qui cherchent à identifier de manière empirique les conditions dans lesquelles les pays se sont heurtés à des difficultés liées au service de la dette, et accordent une large place aux analyses économétriques de cas de réaménagement du calendrier de la dette. Ensuite, l’auteur se tourne vers les facteurs qui agissent sur l’offre de prêts et sur les instruments financiers intervenant dans les prêts octroyés aux pays en développement. Enfin, l’auteur examine certaines questions liées à la gestion de la dette extérieure.
La principale conclusion qui se dégage de l’étude est que l’on ne disposera probablement pas de si tôt de règles d’application facile pour répondre aux questions, telles que celles qui sont soulevées dans la première phrase du présent résumé. Le processus d’évaluation doit faire intervenir une très large part de jugement. Il importe, toutefois, de comprendre les principes sur lesquels les études mettent l’accent et les questions qu’elles posent, car cette compréhension peut éclairer le jugement.
Les statuts du Fonds devant les tribunaux — XVIII: le DTS devant les tribunaux — JOSEPH GOLD (pages 647-81)
Dans la première partie de son étude, l’auteur examine certains cas où on a sinon adopté, du moins préconisé la “solution DTS” lorsqu’il s’est agi d’appliquer une unité de compte définie par rapport à l’or comme le franc Poincaré ou Germinal, par exemple. Dans de nombreux traités, les limites de responsabilité ont été exprimées en ces unités de compte. Le droit de tirage spécial (DTS) sera l’unité de compte des traités amendes ou des nouveaux traités, qui, cependant, ne sont pas encore entrés en vigueur. L’application d’une unité de compte définie par rapport à l’or se heurte à une difficulté: les statuts du Fonds ont aboli le prix officiel de l’or. Selon la “solution DTS”, un montant de francs-or est converti en DTS sur la base de la définition du franc-or et de l’ancienne définition du DTS par rapport à l’or; le montant de DTS ainsi obtenu est ensuite exprimé en la monnaie du for à partir de la valeur de cette monnaie par rapport au DTS, telle qu’elle est établie par le Fonds.
Les tribunaux de Hambourg et de Rome ont eu recours à la “solution DTS”, mais le cas le plus notable est la décision dans laquelle la Cour suprême des Pays-Bas affirme qu’il y a une lacune dans la loi et que les tribunaux doivent la combler. La Cour suprême de ce pays estime que le DTS a remplacé l’or comme unité de compte acceptée par la communauté internationale. Certains tribunaux des Etats-Unis ont décidé de retenir le dernier prix officiel de l’or ou le prix en vigueur sur le marché, mais, selon une décision des tribunaux américains, les dispositions basées sur une unité-or ne sont pas exécutoires.
Dans la deuxième partie de son étude, l’auteur aborde un problème juridique qui n’a pas encore donné lieu à procès: les tribunaux habilités à exprimer leurs jugements en monnaie étrangère peuvent-ils les exprimer en DTS lorsque les contrats prévoient le transfert de droits libellés en DTS? Deux accords inter-nationaux importants qui ont pris effet en 1981 prévoient ce type de paiements.
En Angleterre, le droit a été modifié par la mémorable décision rendue dans l’affaire Miliangos; cette décision stipule que les jugements peuvent, le cas échéant, être exprimés en monnaies étrangères. A en juger par les motifs retenus en l’espèce, il serait justifié d’exprimer les jugements en DTS si des droits libellés en DTS doivent être transférés, mais il se peut que les tribunaux souhaitent s’assurer que ces droits sont facilement utilisables.
Une décision de la Cour de justice des Communautés européennes dispose qu’un jugement exprimé uniquement en unités de compte européennes n’est pas exécutoire, mais au moment où la décision a été rendue, il n’existait aucun moyen pratique de convertir cette unité directement en monnaie. Cette difficulté ne se présente pas actuellement dans le cas du DTS ou de l’ECU. En outre, l’arrêt Miliangos indique, certes, qu’un jugement exprimé en monnaie étrangère ne peut être exécuté qu’en monnaie nationale, mais cette règle de procédure ne s’oppose pas à l’application d’une règle de fond autorisant à exprimer les jugements en monnaie étrangère. Le taux de change applicable est celui qui est en vigueur à la date fixée pour l’application du jugement et non à la date de réalisation du dommage. De cette façon, le créancier qui cherche à se protéger en s’efforçant d’obtenir qu’une monnaie étrangère soit utilisée comme unité de compte reçoit une meilleure protection. C’est pour la même raison qu’il choisit le DTS comme unité de compte.
La estabilidad del crecimiento monetario y de los tipos de cambio como objetivos de política—JAMES M. BOUGHTON (páginas 495-526)
En este estudio se analizan las características que debe tener la polïtica monetaria para lograr una mayor estabilidad en el crecimiento monetario y en los tipos de cambio. A este fin se desarrolla un modelo de equilibrio de cartera y se lleva a cabo una prueba de sus implicaciones mediante la aplicación de estimaciones de parámetros correspondientes a Estados Unidos y el Reino Unido. La conclusión principal es que existe un conjunto limitado de condiciones en el que la estabilidad del crecimiento monetario y la de los tipos de cambio constituyen objetivos de polïtica compatibles.
La cuestión de la estabilidad adquiere validez durante períodos de tiempo cortos en los que las autoridades no logran controlar con precisión el crecimiento monetario. La mejor estrategia a corto plazo para la aplicación de la polïtica monetaria en estos casos consiste en elegir una norma de intervención para las operaciones internas de mercado abierto (o para el instrumento de polïtica que se prefiera) con la que sea más probable el logro de la estabilidad de las variables como meta intermedia. Si es posible elegir una norma de intervención que estabilice dos variables meta, se podrá decir que esas variables representan objetivos de polïtica “compatibles operativamente”.
Las dos normas de intervención comparadas en el estudio son versiones estilizadas de normas empleadas habitualmente por los bancos centrales de países con mercados financieros bien desarrollados: el control del crecimiento de la base monetaria y el control de un tipo de interés a corto plazo. Se demuestra con validez general que cuando la función de oferta del dinero es más variable que la función de demanda, lo más probable es que la estabilidad monetaria y la estabilidad cambiaria constituyan objetivos compatibles a nivel operativo. Si la función de demanda es más variable que la de oferta, será menos probable que los dos objetivos sean compatibles. Las autoridades deberán en ese caso decidir cuál de los mencionados objetivos es más importante, optando por una estrategia de polïtica coherente con esa decisión.
Variabilidad de los tipos de cambio: Otras posibles medidas e interpretación de las mismas—ANTHONY LANYI y ESTHER C. SUSS (páginas 527-60)
Muchos países han tratado de escoger sistemas cambiarios que limiten la variabilidad de los tipos de cambio de sus monedas con el fin de evitar los costos que esa variabilidad entraña. En este trabajo se consideran algunos de dichos costos, tanto los incurridos a corto plazo, cuando los precios contratados en el intercambio comercial son fijos, como los incurridos a plazo más largo. Se definen tres índices para medir la variabilidad: a) índice EV, o suma ponderada de la variabilidad de los tipos de cambio bilaterales; b) índice VEER, o variabilidad del tipo de cambio efectivo, y c) índice RVEER, o variabilidad de los tipos de cambio efectivos ajustada mediante los niveles de precios relativos. Se sostiene que el índice EV es el más adecuado para evaluar los costos a corto plazo, mientras que los índices VEER y RVEER se prestan mejor a la evaluación de los costos a largo plazo.
En el trabajo se calcula cada índice en función de la evolución efectiva de los tipos de cambio en 118 países de 1973 a 1980, y se Simula la evolución que se habría manifestado con otros seis posibles sistemas cambiarios. Comparando el índice de variabilidad efectiva con los valores simulados, se comprueba que la magnitud de la variabilidad de los tipos de cambio está condicionada por la selección del sistema cambiario y que, frecuentemente, el mismo sistema no minimiza ambas medidas de variabilidad. Así pues, los países tendrían que escoger entre minimizar los costos a corto plazo o a largo plazo.
La mayoría de los países, sin embargo, podrían haber minimizado simultáneamente los tres medidas de variabilidad si hubieran establecido un sistema común. El hecho de que muchos países que hubieran podido establecerlo no lo hicieran indica que hay otras consideraciones importantes que influyen a la hora de escoger el sistema cambiario. No obstante, es de observar que la mayoría de los países han escogido un sistema cambiario según el cual la variabilidad del tipo de cambio, en función de uno o más de los índices del estudio, no difirió significativamente del mínimo definido en este trabajo.
El ajuste fiscal y los programas llevados a cabo con apoyo del Fondo, 1971-80—MARGARET R. KELLY (páginas 561-602)
En un estudio reciente efectuado por funcionarios del Fondo se llegaba a la conclusión de que los países que siguieron programas del Fondo en el decenio de los setenta lograron reducciones significativas, tanto absolutas como relativas, en su déficit externo y una reducción relativa en la tasa media de inflación interna, en comparación con otros países en desarrollo no petroleros. Estos ajustes generalmente no se consiguieron a costa de tasas reales de crecimiento y de consumo más bajas.
En el presente trabajo se investiga el grado en que las reducciones del déficit externo fueron resultado de ajustes en la situación financiera del Estado (a diferencia de las del resto de la economía). En el análisis se utilizan las identidades del ingreso nacional y del panorama monetario para especificar las relaciones entre la variable fiscal y la de balanza de pagos. Los resultados concuerdan con la importancia atribuida en los programas del Fondo a las metas fiscales y a las cláusulas de ejecución. Indican también que i) los desequilibrios externos de los años anteriores al programa tendían a ir acompañados de grandes desequilibrios fiscales; ii) las reducciones/aumentos (en relación con el producto nacional bruto (PNB)) de los déficit en la balanza en cuenta corriente durante los años del programa fueron acompañados de reducciones/aumentos (en relación con el PNB) en el déficit global del Estado (en promedio, las reducciones del déficit fiscal representaron el 40 por ciento de la reducción de los déficit en cuenta corriente), y iii) la balanza de pagos global y el déficit presupuestario financiado internamente registraron también una tendencia a variar en la misma dirección. En varios programas se observaron también grandes reducciones absolutas (y relativas) en los déficit financieros del resto de la economía.
En el presente trabajo se examinan también las medidas para reducir los déficit fiscales en cuanto a sus efectos en el crecimiento económico y el comportamiento de la balanza de pagos a plazo medio. Se mantiene que las medidas basadas en un análisis desagregado probablemente sean más útiles que otras basadas en un análisis agregativo; se subraya la conveniencia de idear políticas de ingresos y de gastos en consulta con especialistas tributarios y expertos en proyectos en los principales organismos de desarrollo.
Capacidad de endeudamiento y empréstitos de los países en desarrollo: Examen de las obras publicadas—DONOGH C. MCDONALD (páginas 603-46)
El rápido aumento de las obligaciones de deuda externa de los países en desarrollo durante los años setenta ha suscitado el temor de que algunos de dichos países se hayan endeudado excesivamente y de que los prestamistas se hayan sobrepasado en la concesión de crédito. En este estudio se pasa revista a la literatura sobre la deuda de los países en desarrollo en la medida en que se relaciona con la capacidad de endeudamiento.
En primer lugar se consideran algunas aportaciones teóricas pertinentes. El aspecto central en ese sentido ha sido la función de los empréstitos externos en la financiación de la inversión. Más recientemente se ha venido prestando mayor atención a los efectos positivos del financiamiento externo en los niveles de consumo En la sección siguiente del trabajo se consideran los estudios que tratan de identificar empíricamente las circunstancias en que los países han tenido dificultades para atender el servicio de la deuda, prestándose interés especial a los análisis econométricos de casos concretos de renegociación de la deuda. Se pasa luego a considerar los estudios sobre los factores que influyen en la disponibilidad de crédito y los instrumentos financieros utilizados en las operaciones crediticias con países en desarrollo. Finalmente se examinan algunas cuestiones relacionadas con la gestión de la deuda externa.
La conclusión principal del estudio es que parece improbable que surjan criterios de fácil aplicación para encontrar la solución a cuestiones como las planteadas en el primer párrafo de este resumen. El proceso de evaluación se reduce, en gran medida, a utilizar criterios subjetivos. Sin embargo, una mayor comprensión de los principios destacados y de las cuestiones planteadas en la literatura sobre el tema resultará útil como guía para la formulación de esos juicios de valor.
El Convenio Constitutivo del Fondo ante los tribunales—XVIII: El DEG ante los tribunales—JOSEPH GOLD (páginas 647-81)
La primera parte de este artículo se ocupa de casos en los que se ha adoptado o defendido la “solución DEG” cuando el problema es la aplicación de una unidad de cuenta, como el franco Poincaré o el franco germinal, que se define como un determinado contenido de oro. En numerosos tratados los límites de responsabilidad se han expresado en esas unidades. El derecho especial de giro (DEG) será la unidad de cuenta en enmiendas de tratados o tratados sustitutivos, pero dichas enmiendas o esos nuevos tratados todavía no han entrado en vigor. La dificultad de utilizar una unidad expresada en oro consiste en que el Convenio Constitutivo del Fondo ha abolido el precio oficial del oro. De acuerdo con la solución DEG, una suma expresada en francos oro se convierte en DEG en base a la anterior definición del DEG en relación al oro y la definición del franco oro, aplicándose a continuación a la cuantía de DEG resultante de la conversión la valoración del Fondo en DEG para la moneda del país de que se trate.
La solución DEG ha sido aplicada por tribunales de Hamburgo y Roma, pero el caso más importante es un fallo del Tribunal Supremo de los Países Bajos que señaló la existencia de un vacýo en la legislación que los tribunales deben llenar. El tribunal consideró el DEG el sucesor del oro como unidad de cuenta internacionalmente aceptada. Algunos tribunales de Estados Unidos han fallado en favor del último precio oficial del oro, o de su precio de mercado, pero un fallo sostiene que las disposiciones basadas en una unidad de cuenta expresada en oro son inexigibles.
En la segunda parte del artículo se aborda un problema que aún no ha sido litigado: ¿pueden los tribunales que tienen competencia para dictar sentencias expresadas en moneda extranjera dictarlas en DEG cuando los contratos estipulan la transferencia de derechos denominados en DEG? Dos acuerdos internacionales importantes firmados en 1981 contemplan disposiciones para tales pagos.
En Inglaterra la ley ha sido modificada por el importante fallo en el caso Miliangos, que autoriza, en casos apropiados, que las sentencias sean expresadas en moneda extranjera. El razonamiento aducido en el caso serviría para justificar que las sentencias se expresaran en DEG si han de transferirse derechos denominados en DEG, pero los tribunales podrían querer cerciorarse de que se dispone fácilmente de esos derechos.
Un fallo del Tribunal de Justicia Europeo sostiene que no se puede exigir el cumplimiento de una sentencia expresada únicamente en la unidad de cuenta europea, aunque hay que señalar que en el momento del fallo no existía modo práctico de convertir esa unidad directamente a una moneda. Esta dificultad ya no se da en el caso del DEG o de la unidad monetaria europea. Por lo demás, el caso Miliangos demuestra que, aunque una sentencia expresada en moneda extranjera puede sólo ser objeto de cumplimiento forzoso en la moneda nacional respectiva, esa norma procesal no constituye objeción a la norma sustantiva que permite que las sentencias se expresen en moneda extranjera. El tipo de cambio aplicable es el vigente en la fecha en que un tribunal ordena el cumplimiento de la sentencia, y no el vigente en la fecha en que se cometió la infracción o incumplimiento de contrato. Esta elección de tipo de cambio protege mejor al acreedor, quien busca protección al negociar una moneda extranjera como unidad de cuenta. Ese es también su motivo cuando el DEG es la unidad escogida.
In statistical matter (except in the résumés and resúmenes) throughout this issue,
Dots (…) indicate that data are not available;
A dash (—) indicates that the figure is zero or less than half the final digit shown, or that the item does not exist;
A single dot (.) indicates decimals;
A comma (,) separates thousands and millions;
“Billion” means a thousand million;
A short dash (-) is used between years or months (e.g., 1977-79 or January-October) to indicate a total of the years or months inclusive of the beginning and ending years or months;
A stroke (/) is used between years (e.g., 1978/79) to indicate a fiscal year or a crop year;
Components of tables may not add to totals shown because of rounding.
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