Article

The Fund Agreement in the Courts—XIX

Author(s):
International Monetary Fund. Research Dept.
Published Date:
January 1984
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The present installment in the series of articles on the effects of the law of the International Monetary Fund on litigation discusses decisions by courts in England, the United States, the Netherlands, and Italy, as well as decisions by the Court of Justice of the European Communities and by an arbitral tribunal. The following questions are among the issues affected by the Fund’s Articles of Agreement that are raised by these cases:

1. What is the meaning of “exchange contracts” in Article VIII, Section 2(b) of the Articles?

2. What is the relationship between Article VIII, Section 2(b) and the private international law of the forum?

3. On whom does the burden rest of proving that the conditions of Article VIII, Section 2(b) are met or are not met, and what is the effect on the allocation of the burden of proof between the parties if the court itself introduces the question of applying Article VIII, Section 2(b)?

4. What is the currency “involved” under Article VIII, Section 2(b)?

5. Does Article VIII, Section 2(b) apply to an exchange contract if the exchange control regulations that are in issue were adopted after the contract was entered into?

6. Should the parties to an exchange contract be allowed to negate the effect of exchange control regulations?

7. Does Article VIII, Section 2(b) apply to exchange control regulations if they are part of the law of the forum?

8. If a payment is made under an exchange contract that is unenforceable under Article VIII, Section 2(b), can the amount paid be recovered as an unjust enrichment of the payee?.

9. Should a party be awarded damages if the other party undertook to apply for or to obtain an exchange license and failed to perform the undertaking?

10. If a court rejects the application of Article VIII, Section 2(b) and gives judgment in favor of a plaintiff notwithstanding the exchange control regulations that are part of the law of another member of the Fund, will that member’s court recognize and execute the judgment?

11. What is the relationship between the provisions of the Articles and the provisions of the Treaty of Rome on movements of capital?

12. Are the former par values of currencies still relevant in issues that courts are called upon to resolve?

Most of these questions relate to the interpretation of Article VIII, Section 2(b), which throughout the three successive versions of the Articles has read as follows:

Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member. In addition, members may, by mutual accord, cooperate in measures for the purpose of making the exchange control regulations of either member more effective, provided that such measures and regulations are consistent with this Agreement.

I. Unenforceability of Certain Exchange Contracts: Article VIII, Section 2(b)

meaning ofexchange contracts

United City Merchants (Investments) Ltd. et al. v. Royal Bank of Canada et al. as decided by the Queen’s Bench Division (Commercial Court)1 and Court of Appeal2 of England was discussed in The Fund Agreement in the Courts: Volume II.3 The House of Lords4 has now reversed the decision of the Court of Appeal on the issue involving the law relating to letters of credit but not on the issue of the effect of Article VIII, Section 2(b). It is necessary to rehearse the facts briefly.

A director of a Peruvian company (Vitro) engaged in the glass fiber industry of Peru negotiated a contract between Vitro and a British company (Glass Fibres), under which Glass Fibres would supply a plant against a confirmed and irrevocable letter of credit. The director arranged for Glass Fibres to quote a price to Vitro in U.S. dollars that was double the true price of the plant. He also arranged a contract between Glass Fibres and the N. Co. of Miami under which Glass Fibres would remit to the N. Co. (and later to a substituted payee, B. Co.) half of any amount drawn by Glass Fibres under the letter of credit. Both the N. Co. and the B. Co. were controlled by Vitro.

Vitro purported to comply with the exchange control procedures of Peru on the basis of the full contract price for the plant. Vitro’s bank (Continental) opened an irrevocable letter of credit that was confirmed by the London branch of the Royal Bank of Canada (Royal), under which Royal would honor drafts drawn in accordance with the letter of credit by paying U.S. dollars in London. Payments by Royal would be repaid by Continental over a period of five years. Glass Fibres supplied the plant and presented the shipping documents as required by the letter of credit, but Royal refused to make further payment. Glass Fibres assigned its rights under the letter of credit to United, merchant bankers, to secure advances by them to Glass Fibres. United and Glass Fibres sued Royal, and Royal, arguing that the overinvoicing was contrary to Peru’s exchange control regulations, relied on the provisions of English law that gave the force of law to the first sentence of Article VIII, Section 2(b).

A member of the Court of Appeal analyzed the facts as embracing four contractual relationships between the entities in the following list:

  • (i) Glass Fibres and Vitro, for the sale and purchase of the plant;

  • (ii) Vitro and Continental, for opening an irrevocable letter of credit by Continental for the benefit of Glass Fibres and for the account of Vitro;

  • (iii) Continental and Royal, for the confirmation by Royal of the letter of credit opened by Continental; and

  • (iv) Royal and Glass Fibres, for payments to Glass Fibres as beneficiary of the letter of credit.

United, as assignee of Glass Fibres, had the same position as the assignor, no better and no worse. The action was based on the last of the four contractual relationships, but Vitro and Continental were joined as third parties. Continental agreed to indemnify Royal for any sums for which Royal was held liable.

The Court of Appeal followed its decision in Wilson, Smithett & Cope Ltd. v. Terruzzi,5 in which the court held that “exchange contract” in Article VIII, Section 2(b) meant a contract for the exchange of one currency against another. Contracts for transactions in merchandise or securities were not exchange contracts unless they were “monetary transactions in disguise.”

The main submission by United was that the fourth relationship listed above was legally independent of the first relationship because of the established legal doctrine that the contract for an irrevocable letter of credit is independent from the underlying trade transaction. The Court of Appeal recognized this principle as a fundamental one but held that the principle did not apply when a series of associated contractual relationships taken as a whole amounted to an exchange contract, and when enforcement of one of the relationships would amount to enforcement of the exchange contract in disregard of the United Kingdom’s obligation under Article VIII, Section 2(b). The decision of the Court of Appeal was based on the existence of both a monetary transaction in disguise and an exchange contract. The concept of a monetary transaction in disguise appears to be an exception, not to the interpretation of an exchange contract as one calling for the exchange of currencies, but to the exclusion in certain circumstances of contracts involving transactions in merchandise or securities from the category of exchange contracts. Penetration of the disguise shows that an apparent contract involving transactions in merchandise or securities is not at all or not wholly a contract of that character. The disguise has been adopted because licenses are more readily available for contracts that dispose of merchandise or securities than for contracts that dispose of financial assets.6

No one of the four contractual relationships taken singly provided for an exchange of currencies. It must be assumed that the Court of Appeal focused on the fact that Vitro would pay Peruvian soles to Continental, for which Vitro would receive U.S. dollars from Glass Fibres that Glass Fibres would receive from Royal.

The Court of Appeal was willing to distinguish between the portion of the letter of credit that represented the true payment for the merchandise and the rest of the amount of the letter of credit. The court would have been willing in principle to allow United to recover the first portion, but on the special facts of the case did not award this portion because of a defect in the documents that Glass Fibres had presented to Royal to obtain payment. The bills of lading contained a fraudulent representation by an employee of the loading brokers for the carriers of the merchandise. The employee had completed the documents and represented in them that the merchandise was received on board the vessel on December 15, 1976, as required by the letter of credit. He knew, however, that the merchandise was received on board on December 16,1976. The brokers and their employee were not agents of Glass Fibres or Royal. Neither Glass Fibres nor Royal knew of the fraud when it was committed. The Court of Appeal held that the duty of the beneficiary of the letter of credit (the seller of the goods) was to present proper documents to the confirming bank. The fraud of a third party vitiated the documents even though the third party was not an agent of the beneficiary or the confirming bank, and even though they had not known of the fraud. Royal had refused to pay once it had learned of the defect.

The House of Lords, without further discussion of the merits, endorsed as correct the “narrow interpretation”7 of exchange contracts that had been accepted in the Terruzzi case. The interpretation, said Lord Diplock in the Terruzzi case,

is confined to contracts to exchange the currency of one country for the currency of another; it does not include contracts entered into in connection with sales of goods which require the conversion by the buyer of one currency into another in order to enable him to pay the purchase price…[T]he court in considering the application of the provision should look at the substance of the contracts and not at the form. It should not enforce a contract that is a mere “monetary transaction in disguise.”8

The House of Lords endorsed as correct two propositions that had been accepted in the unreported Batra v. Ebrahim:9

If in the course of the hearing of an action the court becomes aware that the contract on which a party is suing is one that this country has accepted an international obligation to treat as unenforceable, the court must take the point itself, even though the defendant has not pleaded it, and must refuse to lend its aid to enforce the contract. But this does not have the effect of making an exchange contract that is contrary to the exchange control regulations of a member state other than the United Kingdom into a contract that is “illegal” under English law or render acts undertaken in this country in performance of such a contract unlawful. Like a contract of guarantee of which there is no note or memorandum in writing it is unenforceable by the courts and nothing more.10

Both propositions should be approved as consistent with Article VIII, Section 2(b).11 They are consonant with the policy of the Articles, even though the interpretation of exchange contracts by English courts is not.

The House of Lords confirmed the decision of the Court of Appeal that a distinction could be drawn between the portion of the letter of credit that represented the true price of the merchandise and the rest of the amount of the letter of credit.

I avoid speaking of “severability,” for this expression is appropriate where the task upon which the court is engaged is construing the language that the parties have used in a written contract. The question whether and to what extent a contract is unenforceable under the Bretton Woods Agreements Order in Council in 1946 because it is a monetary transaction in disguise is not a question of construction of the contract, but a question of the substance of the transaction to which enforcement of the contract will give effect. If the matter were to be determined simply as a question of construction, the contract between the sellers and the confirming bank constituted by the documentary credit fell altogether outside the Bretton Woods Agreement; it was not a contract to exchange one currency for another currency but a contract to pay currency for documents which included documents of title to goods. On the contrary, the task on which the court is engaged is to penetrate any disguise presented by the actual words the parties have used, to identify any monetary transaction (in the narrow sense of that expression as used in the Terruzzi case [1976] Q.B.683) which those words were intended to conceal and to refuse to enforce the contract to the extent that to do so would give effect to the monetary transaction.12

The House of Lords agreed with the Court of Appeal that Article VIII, Section 2(b) did not impede recovery by United of the unpaid balance of the purchase price but disagreed with the refusal to allow recovery because of the defect in the documents presented to Royal. The Court of Appeal had held that the obligation of the confirming bank was to pay only against valid documents. If the documents were not valid, according to the Court of Appeal, it was of no importance who was responsible for the invalidity. On this point of law, there were no previous decisions by English courts, the Privy Council, or courts in the United States, so that the decision by the House of Lords overruling the Court of Appeal is one of first impression on an important aspect of the financing of international trade.

It was established law that the confirming bank under a confirmed irrevocable letter of credit is bound to pay the beneficiary-seller without reference to the contract between seller and buyer or to disputes between them on their contract. The only established exception, at least in the jurisprudence of courts in the United States, is that the seller is not entitled to payment if he fraudulently presents to the confirming bank documents that contain material representations of fact that he knows to be untrue. The issue that confronted the House of Lords was the effect of fraudulent and material misrepresentations of fact in the documents to be presented to the confirming bank in circumstances in which the misrepresentations do not appear on the face of the documents, are made by someone who is not an agent of the seller, and are made without the knowledge of the seller. The House of Lords refused to recognize an exception to the confirming bank’s liability to the seller in these circumstances, because to do so would undermine the system of financing international trade by means of documentary credits.13 The exception based on the seller’s fraud is derived from the principle that a cause of action cannot arise from a party’s own wrongdoing. This principle does not apply to the wrongdoing of someone for whom the seller is not responsible, unless the seller presents the documents with knowledge of the wrongdoing.

It is regrettable that the House of Lords, in applying the Terruzzi case, did not take the opportunity to examine the reasoning by which the Court of Appeal arrived at its narrow interpretation of the expression “exchange contracts” in Article VIII, Section 2(b). The reasoning in the earlier case piles fallacy upon fallacy and results in an unfortunate license for English courts to ignore the interests of other members of the Fund whatever may be the distress they face.14

The decision of the House of Lords moderates, to some extent, the narrowness of the interpretation of “exchange contracts” by running together a series of contractual relationships to arrive at the conclusion that an exchange contract can be deemed to exist.15 If, however, these relationships can be run together and taken to constitute an exchange contract, there should be some intellectual discomfort in taking account of only part of the contract between buyer and seller when it is combined with other contractual relationships. Even if this process does not cause discomfort, the question whether the House of Lords was really recognizing the exchange control regulations of Peru should give concern. It is possible that Peru’s exchange control regulations prohibited the contract between the buyer and seller as a whole because of the overinvoicing and not simply that part of the contract represented by the overinvoicing. The question then would be whether an English court is entitled to rewrite the exchange control regulations of Peru.16

Royal was able to resist payment of the amount of the letter of credit in excess of the purchase price on the basis of Article VIII, Section 2(b) by relying on the contract between the buyer and the seller. The basic principle accepted by the House of Lords in relation to letters of credit is that they are autonomous and enforceable, with the consequence that the contract between buyer and seller cannot be relied on by the confirming bank to resist payment. Nevertheless, the defense of the seller’s fraud departs from the concept of the autonomous character of letters of credit. The defense of Article VIII, Section 2(b) when “a monetary transaction in disguise” is involved is a second exception, and should not be objected to as a pioneering departure from the basic principle.

Finally, the action was brought by a participant in the scheme to evade Peru’s exchange control regulations against a defendant that was not a participant, but the nonparticipant succeeded in relying on Article VIII, Section 2(b) as justification for refusing to pay part of the amount claimed. This result is consistent with the spirit of the following comment:

… Article VIII, Section 2(b) should not be understood as confined to proceedings between the immediate parties to a contract. Nothing in the language of Article VIII, Section 2(b), requires such an interpretation. “Exchange contracts” are to be “unenforceable.” Therefore, if judicial relief would have the effect of enforcing the contract, i.e., seeing to it that the contract is performed or that a sanction is imposed for nonperformance, that relief is to be withheld. Nor is there anything in the Fund’s authoritative interpretation of Article VIII, Section 2(b), which lays down a different rule. It declares that parties cannot get judicial or administrative assistance for the performance of the contracts declared unenforceable, but it does not declare that the proceedings to which this rule applies must be between the parties to the contract. It is certainly sufficient if one party is suing, and this would include anyone who represents a party.17

article viii, section 2(b) and private international law

The relationship between Article VIII, Section 2(b) and private international law is complex. The authoritative interpretation of the provision the Fund adopted on June 10, 1949 clarified only a few of the fundamental aspects of the relationship.18 One of those aspects should have been recognized in American Express International Banking Corporation v. Irvani, which was decided by the Commercial Court of the Queen’s Bench Division of the English High Court on July 23, 1980.19 The plaintiff requested summary judgment on its claim against the defendant as one of the guarantors of a loan agreement dated December 27, 1977 under which U.S. dollars were to be advanced by the lender and repaid by the borrower. The defendant was a citizen of Iran, residing at the time of suit in London. He had had substantial assets in Iran, where he had built up various companies, including the R. Co., which was incorporated in Iran. The purpose of the loan was to provide modern equipment for the R. Co.’s factory. The loan was not a direct one to the R. Co. but was made through a shell company (G. Co.), which was owned by the defendant and incorporated in the Federal Republic of Germany.

Repayment of the loan, in installments, and periodic payments of interest were to be made in New York. According to the loan agreement, the guarantee of each guarantor was not to be discharged or affected by any circumstances that might constitute a legal or equitable discharge, other than payment in full by the borrower or a guarantor. The intention of each guarantor as expressed in the agreement was that “its guarantee is absolute and unconditional in all circumstances irrespective of the validity, regularity or enforceability of the obligations of the Borrower….” Under another clause, all parties accepted the jurisdiction of the Federal courts in the State of New York and in the District of Columbia and of the courts of the State of New York for the interpretation and enforcement of the agreement, but nothing in the agreement was to affect the right of the plaintiff to bring suit in the Federal Republic of Germany or in any other jurisdiction.

The plaintiff advanced the principal amount, but the G. Co. failed to make the second payment of interest. Under the default clause, the whole of the principal became payable at once. The plaintiff brought the action to recover this amount and interest.

The defendant’s first defense was an alleged implied term of the agreement that only the defendant’s assets in Iran were security for his guarantee, and that the plaintiff would not seek to enforce the guarantee elsewhere. The defendant stated that he no longer had access to his assets in Iran. The court decided that it could not draw the implied term from the facts. The court rejected the second defense, which was based on some provisions of the U.S. regulations freezing Iranian assets.

The third defense was that the plaintiff had made the loan through the G. Co. and not as a direct loan to the R. Co. in order to avoid the effect of Iranian exchange control regulations. The court held that the evidence did not support this allegation.

The rejection of these three defenses did not dispose of the case because the defendant had another string to his bow, Article VIII, Section 2(b). The court doubted that this defense would have succeeded if the contract had been governed by English law, because of the decision of the Court of Appeal in the Terruzzi case. The defendant had argued that his case was distinguishable because it did not involve a contract for the purchase and sale of merchandise as in the Terruzzi case. The court viewed the Terruzzi case as equally applicable to a commercial loan provided that it was not a contract for the exchange of one currency for another. The court held that it was unnecessary to go further because the contract was governed by New York law and not English law. No case had been produced to show that New York law would refuse to regard the contract as an exchange contract that fell within the scope of Article VIII, Section 2(b). The point had been touched on in the Banco do Brasil case,20 but though the majority undoubtedly favored the narrow construction as in the Terruzzi case, the point had been left open.

The court recognized, however, with “considerable suspicion” that there was the possibility of an argument on this point of law. One reason for suspicion was the doubt whether there were relevant exchange control regulations in Iran at the material time. The court concluded that there was “just sufficient in… the Bretton Woods point” to prevent judgment forthwith for the sum claimed. The court decided to give leave to defend on strict conditions as to the security to be provided by the defendant, notwithstanding the fact that the defense was “shadowy in the extreme.”

An interesting feature of the case is the relationship between Article VIII, Section 2(b) and the private international law of the forum that is implied in the court’s attitude. The decision turned on the conclusion that the law governing the contract under the private international law of the forum was the law of New York, and that for this reason the court had to defer to New York on the meaning of “exchange contracts” in Article VIII, Section 2(b). The Fund’s interpretation of the provision, however, declares that exchange contracts

will be treated as unenforceable notwithstanding that under the private international law of the forum, the law under which the foreign exchange control regulations are maintained or imposed is not the law which governs the exchange contract or its performance.21

According to this passage in the Fund’s interpretation, the court could not have refused to declare the contract unenforceable on the ground that the exchange control regulations were imposed by Iran and not New York. The passage, however, does not deal with the question whether the court should look to the governing law, New York law, to determine whether or how Article VIII, Section 2(b) would be applied under that law.

Nevertheless, the English court should have determined whether Article VIII, Section 2(b) applied in the circumstances of the case, and as part of this determination should have applied its own understanding of the meaning of exchange contracts. To take another view implies acceptance of the propriety of more than one interpretation among contracting states of a provision in a multilateral treaty. The proposition advanced here is that Article VIII, Section 2(b) excludes the application of the private international law of the forum in order to ensure that the policy of the provision will not be rendered ineffective. The risk of defeating the policy of the provision becomes apparent if it is assumed that the governing law is the law of a nonmember, which is not bound to apply Article VIII, Section 2(b).

Another interesting feature of the case is that the court did not preclude the possibility that it might have to recognize the effect of Iran’s exchange control regulations in deciding whether Article VIII, Section 2(b) applied even though the parties had tried by their contract to exclude the effect of exchange control regulations. Judge Meyer, in his dissenting opinion in the Weston case, which is discussed below, makes it explicit that private parties cannot prevent the application of Article VIII, Section 2(b) either by express exclusion of the effect of exchange restrictions or by their choice of the law governing their contract.22 Private parties should not be allowed to defeat the public policy of the provision. A court would not allow private parties to contract out of the exchange control regulations of the lex fori.23 The court should conclude that Article VIII, Section 2(b), when applicable, requires that courts shall pay similar respect to the public policy of other members as expressed in their exchange control regulations.

article viii, section 2(b)and burden of proof

The allocation of the burden of proving that Article VIII, Section 2(b) does or does not apply can determine the outcome of proceedings. A related problem is whether the court itself can assume the burden.

New York courts

In Libra Bank Ltd. et al v. Banco Nacional de Costa Rica S.A.,24 the eight plaintiffs brought an action to recover their share of outstanding principal amounts, together with interest, of a loan of US$ 40 million made by 16 banks to the defendant bank, which was wholly owned by the Government of Costa Rica. The action was on promissory notes issued in connection with the loan. The plaintiffs moved for summary judgment under the Federal Rules of Civil Procedure of the United States and for an order compelling the defendant to return to the jurisdiction and deposit $2.5 million with the Clerk of the Court as partial security for any judgment entered for the plaintiffs. The defendant asserted that it was barred from repayment by an act of the Costa Rican Government and that the doctrine of the Act of State bound the court to reject the relief for which the plaintiffs had moved. The United States District Court for the Southern District of New York held25 that the doctrine applies to confiscation only if the property the foreign legislator purports to confiscate is within the legislator’s territory, but on the facts of this case the plaintiffs’ right to repayment was situated in New York. The court granted the plaintiffs’ motion for summary judgment on the loan agreement, but the motion for an order compelling the defendant to return assets to the jurisdiction was denied.

The court’s opinion and order were delivered on July 11, 1983, and judgment in accordance with them was to be entered not later than July 15, 1983. On that last day, the defendant moved to reargue the motion on the basis of Article VIII, Section 2(b). The court refused the new motion for the reasons set forth below.

(i) The court noted the broad and the narrow view of the meaning of “exchange contracts,” and preferred the narrow view on the basis of consistent U.S. jurisprudence. The court quoted a passage from the opinion of the majority in the New York Court of Appeals in the Banco do Brasil case.26 That opinion, however, confuses the expressions “exchange contracts” and “involve the currency” in Article VIII, Section 2(b). The majority held that “exchange contracts” could not be interpreted to mean contracts that affect a country’s “exchange resources” because the provision refers to the involvement of a country’s “currency.” This confusion would not arise if “exchange contracts” were understood to be contracts that affect the balance of payments of a country while the words “involve the currency” point to the country whose balance of payments, and therefore its currency, is affected.27

On the narrow view endorsed by the court in the Libra Bank case, an international loan is not an exchange contract, which was the view of the English court also in the American Express case discussed above. The New York court seems to have emphasized the fact that repayment was to be made in New York in U.S. dollars, the currency that had been advanced.28 If the currency of repayment were to be, or might be, a different currency, the court would be faced with the embarrassment of making a rational distinction between such a loan arrangement and contracts for the exchange of one currency against another, particularly if a contract were for a future exchange.

(ii) The court stated that, even if the loan agreement was assumed to be an exchange contract, the defendant had submitted no authority for the view that a contract, valid and enforceable when made, may be rendered unenforceable by exchange control regulations adopted subsequently. The court cited dicta from opinions in some of the Cuban insurance cases,29 but in those cases the subsequent events that made Article VIII, Section 2(b) inapplicable were the departure of plaintiffs from Cuba and the withdrawal of Cuba from the Fund. The balance of payments of Cuba would be affected no longer by payments under the contracts to the plaintiffs by nonresident defendants notwithstanding the apparent reach of the exchange control regulations, and Cuba as a nonmember of the Fund had ceased to be entitled to the protection of Article VIII, Section 2(b). The logic of holding that events subsequent to entry into a contract are irrelevant would mean that withdrawal from the Fund was irrelevant. On this basis, an exchange contract, however defined, that was unenforceable under Article VIII, Section 2(b) when made would continue to be unenforceable notwithstanding the withdrawal of the legislating member from the Fund. The result would be inconsistent with the clear intent of the Articles to deny the benefits of the Articles to nonmembers.30 The refusal to apply Article VIII, Section 2(b) to exchange control regulations that affect executory contracts in existence when the regulations are imposed would ignore the economic difficulties that make the regulations necessary.31

(iii) The court cited the view of a distinguished English author that Article VIII, Section 2(b) provides for the original ineffectiveness of an exchange contract, but does not affect a contract that becomes contrary to exchange control regulations after the contract is entered into.32 The view that unenforceability means original ineffectiveness has been rejected by the courts,33 most recently by the English House of Lords in the Glass Fibres case discussed above,34 but the court in the Libra Bank case did not take notice of this development.

(iv) The defendant had not demonstrated that the exchange control regulations of Costa Rica on which he relied were “maintained or imposed consistently” with the Articles. The defendant had merely asserted that the regulations were consistent with the Articles because they fulfilled the express purposes of the Articles to promote exchange stability and to maintain orderly [exchange] arrangements among members of the Fund.

The court cited the opinion of the present author that the burden of proving consistency should be on the defendant that makes this assertion, and that the only safe procedure is to seek the advice of the Fund.35 The court concluded that a simple assertion of consistency was inadequate because of the various provisions that deal with consistency (Article VIII, Section 2(a); Article VII, Section 3(b); Article XIV, Section 2; Article XXX (d)). The distinction between payments and transfers for current international transactions and capital transfers was particularly important for determining the consistency of exchange control regulations with the Articles, but the defendant had not demonstrated how the payments in issue were classified under the Articles. The court refused to alter its previous ruling and denied the motion to reargue.

The court’s approach to the burden of proof was that the defendant should prove consistency with the Articles because the defense of Article VIII, Section 2(b) rested on the assertion of consistency. The court was not willing to make a presumption of consistency (omnia praesumuntur rite et solenniter esse acta).36 That presumption would have imposed the burden of proving inconsistency on the plaintiff. In the Terruzzi case, the lower court was willing to presume consistency:

An English court should not assume without evidence, of which there is none in the present case, that the Italian authorities administer their exchange control regulations in a sense contrary to the obligations of Italy as a member of the I.M.F. In the absence of such evidence, and in relation to legislation of a kind which is internationally fairly commonplace in this field, it seems to me that a court of a member state should not assume without evidence that such legislation is not “maintained or imposed consistently with the I.M.F. agreement.”37

In Weston Banking Corporation v. Turkiye Garanti Bankasi A.S, decided by the New York Court of Appeals on November 16, 1982,38 the plaintiff, a Panamanian bank, brought this action in New York against a Turkish bank on a promissory note that evidenced a loan and designated New York as the jurisdiction for the resolution of disputes. The note, which was signed in Istanbul, bound the defendant to pay a principal sum in Swiss francs, plus interest, at the offices of a New York bank by means of a cable transfer to Switzerland in lawful currency of Switzerland. According to the loan contract, payments were to be made clear of all restrictions of whatsoever character imposed by the Republic of Turkey that were not within the scope of bilateral or multilateral payments or clearing agreements existing at the time of payment.

The note stated that it was issued under Communiqué 164 of the Turkish Ministry of Finance, amending an earlier decree. The communiqué permitted banks in Turkey to open convertible lira deposit accounts (CTLDs) when a bank obtained foreign currency by borrowing or by accepting deposits. The bank transferred the foreign currency obtained in either way to the central bank in return for Turkish lira. The central bank provided the foreign currency necessary for repayment of a loan or withdrawal of a deposit and gave the Turkish bank a guarantee against fluctuations in the exchange rate of the lira.39 The defendant had borrowed the Swiss francs from the plaintiff and had established a CTLD. In July 1979, the defendant refused to repay the principal amount on the ground that Turkish banking regulations then in force and adopted after the date of the note prevented repayment in Swiss francs and permitted only repayment in lira.

The plaintiff moved for the summary judgment that was available under New York law on the basis of an instrument calling only for the payment of money. The defendant moved for dismissal of the motion, relying on various defenses, including the Act of State doctrine and the Fund’s Articles. The court of first instance denied both motions. The Appellate Division granted the plaintiff’s motion,40 holding, on the defense citing Article VIII, Section 2(b), that the note did not involve any use of Turkish currency in violation of Turkish law.

On further appeal, by the defendant, the Court of Appeals held, by a majority of six to one, that the Act of State doctrine required courts in the United States to refrain from inquiring into the validity of the acts of a foreign government within its own territory.41 The court referred to an earlier case in which it had decided that the doctrine did not apply when the debt sought to be enforced was not located within the territory of the state whose acts were said to be dispositive, because that state had no power to enforce or collect the debt.42 The court held that, in the case before it, the doctrine did not apply because the debt was equally capable of being enforced against the defendant’s assets in New York and in Turkey. The state of Turkey would have no power to enforce collection of a judgment delivered in New York.

The court then took up what it described as the question whether or not it was the policy of New York to give extraterritorial effect to the Turkish regulations. The defendant had provided the court with translated and certified copies of all pertinent Turkish laws. The court concluded on a reading of the regulations that there was “no per se ban”43 imposed on Turkish banks that prevented them from paying with foreign currency the kind of promissory note on which the plaintiff was suing. The regulations did not bar payment but established a program under which CTLDs could be restructured through the central bank. The plaintiff denied that it had agreed to have its note included in the program. The defendant had made no assertion and offered no proof to contest this denial. The court concluded that there was nothing to show that the regulations applied to the note in issue. Therefore, no case was made for considering the policy of New York if extraterritorial effect had been intended for the regulations.44

The court held that the same failure of proof affected the defendant’s argument based on the Articles. The court quoted Article I(iv), which declares that a purpose of the Fund is to assist in the establishment of a multilateral system of payments in respect of current transactions between members and in the elimination of foreign exchange restrictions that hamper the growth of world trade. The court also quoted the first sentence of Article VIII, Section 2(b) and then commented as follows:

This article renders unenforceable any agreement involving the currency of a member State which is contrary to “that member’s” currency control regulations. The promissory note involved here obligated the defendant to repay the plaintiff the principal sum loaned in Swiss francs and not Turkish lira.

[2] Were the currency regulations to ban payment in foreign currencies when a CTLD was liquidated, a different case would have been presented. In this case, however, the regulation merely permits a Turkish bank to restructure the debt. As we previously stated, there is no proof, in this record, that if the debt were not restructured, the bank would be barred from repaying the plaintiff in Swiss francs as required by the terms of the note. Therefore, although we recognize the validity of the Bretton Woods Agreement and its potential controlling effect over international currency transactions, on the record before us, we do not find it to be applicable.45

The opinion of the majority was based on its reading of the regulations cited by the defendant and the defendant’s failure to prove that they prevented payment by it. Therefore, the discussion of Article VIII, Section 2(b) is obiter. Nevertheless, it is interesting that the court did not endorse the narrow view that “exchange contracts” are contracts for the exchange of one currency for another. The loan in this case was of Swiss francs and to be repaid in Swiss francs, and, if the regulations had banned repayment in Swiss francs, “a different case would have been presented.”46 This statement was not reconciled, however, with the court’s apparent disposition to regard the currency “involved” for the purpose of Article VIII, Section 2(b) as the currency of payment and not the currency of the member whose balance of payments would be affected by payment.

Judge Meyer delivered a detailed dissenting opinion. In 1953, when he was a practitioner, he wrote one of the pioneering essays on Article VIII, Section 2(b). The essay is still an outstanding contribution to the discussion of the provision.47 He prefaced his opinion with the reflection that the applicability of Article VIII, Section 2(b) presents a question of Federal and not State law, so that the correctness of the court’s determination was subject to further review by the Supreme Court of the United States.

If Article VIII, Section 2(b) applied, neither the Act of State doctrine48 nor the intention of the parties to remain free from Turkish exchange control regulation was relevant, said Judge Meyer. He cited a provision of the New York law of procedure according to which “every court may take judicial notice without request of… the laws of foreign countries” and which requires that “judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it.”

He concluded that the court was bound to take judicial notice, not only of Communiqué 164, but of all Turkish orders and decrees produced by the defendant in support of its affidavit, and that taken as a whole they did establish an exchange control regulation within the meaning of Article VIII, Section 2(6). These legal documents satisfied Judge Meyer that Turkish law forbade the payment of Swiss francs under the note. The plaintiff had submitted no documents or opinions concerning Turkish law that supported a different conclusion. The burden of proof, it will be noted, was a decisive consideration for both the majority and the minority.

The question then, said Judge Meyer, was whether the note was unenforceable under Article VIII, Section 2(b). To reach this conclusion, it was necessary to show that: (1) payment was contrary to a Turkish exchange control regulation; (2) the regulation was maintained consistently with the Articles; (3) the currency of Turkey was involved; and (4) the note was an “exchange contract.”

The documents produced by the defendant satisfied Judge Meyer not only that there was a relevant exchange control regulation but also that it prohibited payment in Swiss francs. The plaintiff had cited Article VIII, Section 2(a) and Article IV, Section l(iii) of the present Articles to support the proposition that the regulation was not consistent with the Articles. Judge Meyer’s response was that the plaintiff had overlooked Article XIV, Section 2, under which a member may maintain and adapt restrictions on payments and transfers for current international transactions that were in effect when a member entered the Fund.49 Even if the restriction was not authorized by Article XIV, Section 2, the plaintiff had failed to present anything to suggest that the restriction had not been approved by the Fund. The crucial issue raised by Judge Meyer’s analysis is whether, when Article VIII, Section 2(b) is in issue, the plaintiff who makes a claim notwithstanding the existence of exchange control regulations must support his claim by showing in the first instance that the regulations are inconsistent with the Articles or whether the defendant must support his defense by proving in the first instance that the regulations are consistent with the Articles.

Judge Meyer was willing to infer that the relevant regulation was consistent with the Articles. In effect, therefore, the burden on the defendant in the first instance was discharged, so that the burden was shifted to the plaintiff, in the second instance as it were, of proving inconsistency with the Articles in order to rebut the defense. The reasons that induced Judge Meyer to draw the inference that favored the defendant seem not to have been advanced by the defendant. The major reason was the absence of action by the Fund against Turkey on the basis of the regulation that was comparable to the action taken by the Fund against Czechoslovakia in 1954 declaring it ineligible to use the Fund’s resources and compelling it to withdraw from the Fund. The other reason was that the plaintiff had not availed itself of the Fund’s offer, in its interpretation of June 10, 1949, to advise whether particular exchange control regulations are maintained or imposed consistently with the Articles.50 These reasons support an inference that is close to the presumption of consistency with the Articles that has been discussed above in connection with the Libra Bank case.

The Fund’s law on exchange control is complex, and its practice, whether in granting or withholding approval when required and its resort to or forbearance from “sanctions,”51 cannot be gleaned from the text of the Articles. The only safe course on the issue of consistency with the Articles is indeed to request the advice of the Fund. The question then is whether the plaintiff or the defendant should make the request because the court will hold that the burden of proof is on him. Judge Meyer’s position, however, shows that the court might infer consistency even though the defendant has not proved it.

The question also arises whether the court should address the Fund with a request for advice, if the court is authorized to make the approach under its procedures, in a case in which neither party has proved consistency or inconsistency with the Articles.52 Courts that have held that they must declare a contract unenforceable when Article VIII, Section 2(b) applies even though the provision has not been relied on as a defense53 may be taking the burden of proof on themselves, and they will be in a serious predicament if they do not apply to the Fund for advice.

A court could raise the issue of Article VIII, Section 2(b), though not raised by a party, without disturbing the allocation of the burden of proof between the parties, and could leave it to the appropriate party to discharge the burden placed on it.54 The court might hold that the contract was not unenforceable if the defendant had failed to prove the consistency of exchange control regulations with the Articles and if under the court’s procedures the defendant had lost the opportunity to adduce further proof. Such a result would be unfortunate if the exchange control regulations were consistent with the Articles. It would be pointless for the court to raise the issue of Article VIII, Section 2(b) in order to respect an international obligation and then to dismiss the issue for lack of proof. The solution might be a presumption of consistency with the Articles, for which there is support in the Terruzzi case.

Judge Meyer rejected the view that the currency of Turkey was not involved because the note was payable in New York in Swiss francs. The note recited that it was issued under Communiqué 164, the title of which was “Communiqué on Decree No. 17 Regarding Protection of the Value of Turkish Currency.” The plaintiff’s deposit order to its Swiss bank recognized that in accordance with Turkey’s regulations the Swiss francs would have to be surrendered to the central bank of Turkey. Judge Meyer explained the involvement of a currency in these terms:

“Involve” carries such connotations as “entangle”, “implicate”, “embroil”, “connect” and “affect”. Because the first sentence of article VIII (§2, subd. [b]) is to protect the limited controls which the agreement permits by reversing the private law doctrines under which such controls had previously been largely circumvented by the courts, involvement of the currency should be read in terms of the interests of the country whose regulation is in issue rather than of the parties.55

A more difficult problem, said Judge Meyer, was whether the note was an exchange contract. He was not persuaded by the narrow views favored in the Zeevi56 and Banco do Brasil57 cases. Judge Meyer pointed out that the narrow views were not supported by other cases decided by courts in the United States and in other countries or by commentators.

Although there are contrary views the majority view reads “exchange contracts” as used in the agreement, in light of the legislative history of the provision, broadly enough to encompass a transaction based in contract which involves exchange or affects the balance of payments or exchange resources of a member nation.58

If the decision of the majority is understood to go beyond questions of the burden of proof in relation to Article VIII, Section 2(b) and to preclude the views of Judge Meyer on the elements of the provision, the consequences could be damaging to the economies of members. The following passage from a comment on the decision illustrates the dangers:

Weston suggests that one consideration may be to make the notes evidencing obligations payable (1) in the United States and (2) in a currency other than that of the borrower. Following the restrictive reading of the court of appeals in Weston, such an obligation would not be within the meaning of Article VIII of the Bretton Woods Agreement. Thus, if a note between two non-U.S. parties is payable in the United States in a foreign currency and the payor has consented to the jurisdiction of New York courts then it appears that a subsequent exchange control restriction in the payor’s home country will not be an event so as to enable the payor to raise the Act of State doctrine or the Bretton Woods Agreement as a defense to payment in the designated currency.59

A striking aspect of the case is that the exchange control regulations were adopted after the contract was entered into, but there is no suggestion in the opinion of the Court of Appeals that for this reason they had no effect under Article VIII, Section 2(b). This conclusion is compatible with the view that the policy of the provision requires the court to look at the current facts and not the facts at the date when the contract was made.60 The proposition is stated succinctly by an author who discusses the choice of forum and of governing law as techniques to insulate a contract from changes in the law of the borrower’s country, but notes that these techniques will not prevail against the effect of Article VIII, Section 2(b):

The object was to establish universal recognition of exchange controls legitimately instituted in the national interest in accordance with IMF canons. The result of this article is that the subsequent imposition by an IMF member of exchange controls consistent with the IMF agreement is to be recognized by the courts of fund member countries in the case of exchange contracts. A hard-pressed state could therefore introduce exchange controls to postpone its foreign debt load and thereby override the insulation of the external governing law.61

Arbitral tribunal

Mark Dallal v. Islamic Republic of Iran, Bank Mellat (formerly International Bank of Iran), decided by Chamber One of the Iran-United States Claims Tribunal on June 10, 1983,62 is another proceeding that involved the issue of the burden of proof, but in this proceeding the tribunal held, by a majority of two to one, that the claimant bore the burden and had not discharged it. The claimant Dallal contended that in January 1979 he received and was the lawful holder of two checks drawn in U.S. dollars by the International Bank of Iran (IBI) on Chase Manhattan Bank, N.A., New York, payable to Dallal’s account at the Chemical Bank of New York. Dallal contended that these checks had been dishonored, and he claimed the face amount together with interest and costs. The checks had been returned to Dallal because of insufficient funds in IBF’s account with Chase. The respondents raised a number of defenses, one of which was that the issuance of the checks by IBI had been prohibited by a binding circular dated November 14,1978 of Bank Markazi Iran, the central bank of Iran. As a result of this prohibition, the respondents considered the checks to be null and void. The respondents further alleged that issuance of the checks was part of a fraudulent operation designed to circumvent Iran’s currency regulations.

Dallal denied that the checks violated any valid circular and argued that a bank should not be permitted to avail itself of its breach of “internal regulations” if issuance of the checks was a breach. He argued also that the law of New York governed payment and entitled him to recover.

The circular cited by the respondents specified the purposes, other than payment for imports, for which Iranian banks were allowed to sell foreign exchange subject to prior approval by Bank Markazi. One of the purposes was payment for services. Dallal claimed that the checks were payable by an alleged Iranian company as compensation in the nature of “finder’s fees” or “commissions” for services that he had performed. The identity of the person who had arranged for the drawing of the checks was obscure. None of the parties alleged that the Bank Markazi had approved the monetary transaction that was in issue.

The tribunal noted that as both Iran and the United States were members of the Fund, it was of interest to take account of the provisions of the Articles, among which the basic provision in this case was Article VIII, Section 2(b). The tribunal noted also that the regulations had been reported to the Fund and were reflected in the Fund’s “Annual Report” for 1979, which probably was a reference to the Fund’s 1979 Annual Report on Exchange Arrangements and Exchange Restrictions.63

The Tribunal concludes that these regulations at least in so far as they apply to mere capital transfers under Article VI Section 3 of the IMF Agreement are valid currency regulations within the meaning of Article VIII, Section 2(b) of that Agreement.

The Claimant has not even contended, [sic] that these currency regulations are inconsistent with the IMF Agreement.64

The tribunal then quoted most of the text of the formal interpretation, of June 10, 1949, of some aspects of Article VIII, Section 2(b).65

The interpretation, continued the tribunal, made the law applicable to the contract and its performance (under private international law) irrelevant for the purpose of honoring the obligation imposed by Article VIII, Section 2(b). A court or administrative authority has the right and duty to refuse enforcement of a contract in accordance with the provision. If the tribunal were to permit Dallal to recover, it would be enforcing the exchange contract.

Such an award would in practice circumvent the currency regulations which, if valid, both Iran and the United States as well as all other member States of the IMF are obliged to respect. Strong reasons suggest that also international tribunals should respect the relevant provisions in the IMF Agreement.66

The phrase “if valid” seems to mean if consistent with the Articles, in accordance with one of the conditions for the application of Article VIII, Section 2(b), but the provision would not apply to proceedings in the courts of Iran involving the exchange control regulations of Iran. Iranian courts apply Iranian regulations whether consistent with the Articles or not.

It is interesting to reflect on what the tribunal thought might be the exchange contract in this case. It might have been the contract between IBI and an alleged third entity under which IBI would provide U.S. dollars to Dallal in return for Iranian rials paid to IBI by the third entity. Alternatively, the exchange contract might have been a contract between Dallal and the alleged third entity for a payment to Dallal that might have been for services rendered by him. Whether Dallal was to be paid for any such services in rials or dollars was not shown in evidence. On the first hypothesis, Dallal was not a party to the exchange contract but was a party to the proceedings. On the second hypothesis, Dallal was a party to the exchange contract, while the alleged third entity was not a party to the proceedings.

The tribunal concentrated not on this aspect of the case but on the question of “the character of the underlying transaction,” that is to say the transaction that gave rise to the checks drawn in favor of Dallal. The majority held that if the true character was, as contended by the respondents, simply an exchange of currencies and transfer to the United States of the U.S. dollars obtained by the exchange, there was no doubt that the transaction was a capital transfer within the meaning of Article VI, Section 3 and authorized by that provision. The tribunal seems to have presumed from Dallal’s silence that prima facie the underlying transaction was contrary to Iran’s exchange control regulations as asserted by the respondents. No satisfactory evidence was submitted by the respondents or by Dallal that would have clarified for the tribunal the character of the underlying transaction either as a disguised capital transfer or as a payment for services rendered. In such circumstances of doubt, the tribunal held that the parties to the underlying transaction were in a position to provide information that would resolve the doubt. The tribunal concluded that, as Dallal had not provided this information, it would have to assume that the checks were issued as part of a capital transfer, and that an award could not be made in favor of Dallal. The tribunal looked to him to clarify the character of the underlying transaction because he was a party to it, while the respondents were not.

It is not clear what the tribunal thought about the burden of proving the status of the exchange control regulations under the Articles if the character of the underlying transaction had been proved. Would the tribunal have held that the claimant in presenting his claim had to prove the inconsistency of the regulations with the Articles or that the claimant could simply present his claim on the basis of a clarified underlying transaction and let the respondents prove, if they could, that the regulations were consistent with the Articles? Nor is it clear whether the issue of Article VIII, Section 2(b) was raised by the tribunal or by a party to the proceedings.

It is apparent that the tribunal did not consider it sufficient for Dallal to rely on the two checks as a basis for his claim. The tribunal required him to prove the character of the underlying transaction. That requirement seems to have been regarded as an essential step toward establishing how the regulations affected his claim. But perhaps, in addition, if it became clear that his claim was contrary to the regulations, the tribunal would have wanted him to prove that the regulations were inconsistent with the Articles.

A possible understanding of the thinking of the majority is that if it had been established that the checks were issued as part of a capital transfer, it would have been demonstrated not only that the transfer required the approval of the Iranian authorities but also that this control was consistent with the Articles under Article VI, Section 3. If Dallal was called on to make this demonstration, it is difficult to see why he should be required to prove that the contract from which his claim derived was unenforceable. If the tribunal had been satisfied that the checks were for services rendered, it would probably have been demonstrated that the approval of the Iranian authorities was necessary for the payment, but it would not have been demonstrated by that fact alone that the regulations requiring approval were consistent with the Articles. Further evidence would have been necessary to prove the consistency of the regulations with the Articles, but it is not apparent whether the tribunal would have required the respondents to prove consistency or Dallal to prove inconsistency.

No party to the proceedings had clarified the character of the transaction that gave rise to the checks. In the absence of proof by Dallal, the majority of the tribunal acted on the presumption, perhaps raised by the facts, that the transaction was a disguised capital transfer. The effect is somewhat similar to the presumption of consistency with the Articles that was mentioned in the Terruzzi case.

The case implies a question of the relationship between private international law and Article VIII, Section 2(b) in addition to the express issue of the burden of proof. When a plaintiff advances a claim based on an exchange contract, is it not reasonable that he should be expected to prove the validity of the contract under the law that governs its validity according to the private international law of the forum? If the plaintiff proves that the contract is valid according to this test, he should not be required to prove as part of his case that the contract is not contrary to the exchange control regulations of a member whose currency may be involved under Article VIII, Section 2(b). Proof that the contract is contrary to such regulations should be the burden that the defendant bears.

To impose a more extensive burden of proof on the plaintiff would rest on a misunderstanding of the provision. Article VIII, Section 2(b) does not require other members to enforce an exchange contract because it accords with the exchange control regulations of a member whose currency is involved and because the regulations are consistent with the Articles. Article VIII, Section 2(b) provides only that the courts of other members must not enforce an exchange contract if it is contrary to the regulations of a member whose currency is involved and if the regulations are consistent with the Articles. This analysis should lead to the conclusion that if a plaintiff proves the validity of his contract under the law governing it according to the private international law of the lex fori, the defendant should prove that the claim is contrary to exchange control regulations, that the regulations are those of the member whose currency is involved, and that the regulations are consistent with the Articles.

The opinion of the dissenting member of the tribunal was based in large part on considerations related to the burden of proof, on which his views are summarized as follows. New York law governed the two checks. Under that law, which was in conformity with the law of Iran and international practice, a bank that draws a check must ensure that sufficient funds are available in the bank on which the check is drawn,67 and the drawer has the burden of proving a defense sufficient to avoid payment. The rules of the tribunal provided for the same allocation of the burden of proof by declaring that each party shall have the burden of proving the facts relied on to support his claim or defense. The majority did not observe this rule in holding that, although the respondents had failed to prove a defense, the burden of proof was on Dallal to demonstrate the regularity of the underlying transaction.

The dissenting opinion goes on to question whether the exchange control regulation in issue was imposed consistently with the Articles and therefore whether it met this condition in Article VIII, Section 2(b). A further question was whether the regulation could be relied on in view of a treaty of amity, economic relations, and consular rights between the United States and Iran.68 These issues of fact and law had not been raised or argued, and, in the circumstances, the tribunal should have refrained from relying on the Fund’s Articles. Even if Article VIII, Section 2(b) were applicable, sufficient evidence had not been submitted to prove that the transaction was contrary to Iran’s exchange control regulations. Nothing in the Articles justifies the application of Article VIII, Section 2(b) on the mere suspicion of a violation of exchange control regulations or a shifting of the usual burden of proof.

The dissent questions the finding of the majority that the payment was a capital transfer, which made it easier to conclude that the regulation was consistent with the Articles because of Article VI, Section 3, than would have been possible if a restriction on payments for current transactions had been involved. The distinction between capital and current transactions, and its application in the circumstances of the case, had not been argued.

The dissent expressed a view on one other aspect of Article VIII, Section 2(b). Bank Mellat, as the successor of IBI, should not be allowed to refuse payment, because it had failed to seek the consent of Bank Markazi for the payment. Article VIII, Section 2(b) did not prevent liability for such a failure. This form of liability is discussed below in the section entitled Unjust Enrichment and Damages.

Kimberly-Clark Corp. v. Bank Markazi Iran, Novzohour Paper Industries, Government of the Islamic Republic of Iran, decided by Chamber Two of the Iran-United States Claims Tribunal on May 25, 1983,69 is in contrast to the case discussed above. Exchange control regulations of Iran were mentioned in the award, but no specific reference was made to Article VIII, Section 2(b) although the question of the burden of proof was a decisive consideration. One claim in this case was for royalty payments that had accrued under a license agreement between Novzohour, an Iranian enterprise, and the claimant. Novzohour had been unable to obtain authorization from Bank Markazi for the transfer of funds to the claimant.

The tribunal held, with respect to the larger proportion of the claim, that Novzohour’s statements showed it owed this amount. Under the license agreement, the amount was to be paid in U.S. dollars at the claimant’s bank in the United States. The tribunal held that even if it was assumed that the agreement did not comply with Iranian exchange control regulations insofar as payments were to be made in U.S. dollars, Novzohour had not proved that such a contractual provision was prohibited by law at the date when the contract was signed. Nor had Novzohour proved that new exchange control regulations, when enacted, had rendered the prior agreement null and void. The existence and amount of the debt could not be seriously disputed even if payment in dollars had been prevented. As a result of the Declaration of Algiers and of the establishment of the Security Account in U.S. dollars, payment had to be made from that account. It was unnecessary “to determine the question of the legality under international law of the Iranian exchange controls,” because the Claims Settlement Declaration provided for payment in dollars from the Security Account of awards for debts owed by entities controlled by the Government of Iran.

If the clause quoted above was a reference to the Articles, the award could be understood to preclude questions of Article VIII, Section 2(b) when satisfactory proof of a debt is offered, at least if the debt arose before exchange control regulations were imposed. The tribunal may have interpreted the Declaration to mean that debtor governments would not rely on Article VIII, Section 2(b) to resist the discharge of such debts. The view that private parties should not be allowed to insulate their contracts from Article VIII, Section 2(b) need not apply to a treaty between governments. An agreement between them that a debtor government will not rely on the provision can be considered a relaxation by that government of its exchange controls or the grant by it of any necessary license.

exchange control regulations of lex fori

At this stage in the history of Article VIII, Section 2(b) it should not be necessary to repeat that the exchange control regulations of “any member” under Article VIII, Section 2(b) do not include the exchange control regulations that are part of the lex fori. The provision relates to the exchange control regulations of other members. A few commentators, however, continue to be confused by the language of the provision, although the courts have not been misled. For example, one commentator has argued that if, under Article VIII, Section 2(b), French courts must declare contracts contrary to the exchange control regulations of members other than France unenforceable rather than invalid, it is indisputable that the same conclusion must be reached by French courts if a contract is contrary to French exchange control regulations, because France also is a member of the Fund.70

A Dutch author, commenting on Kharagjtsingh v. Sewrajsingh,71 a decision of the Supreme Court of the Netherlands, and discussed in Volume II of The Fund Agreement in the Courts,72 has advanced the view that Article VIII, Section 2(b) should have been held to apply in a Dutch court to the exchange control regulations of all parts of the Kingdom of the Netherlands, including Surinam when it was still part of the Kingdom.73 The acceptance of the Articles by the Netherlands implied acceptance of the obligation to safeguard the currencies of all members, including all the currencies of the Kingdom. Moreover, the obligation was a mutual one among the territories of the member, so that in this case the courts of the Netherlands Antilles had been obliged to apply the provision to the exchange control regulations of Surinam. The commentator finds support for this view in the direction that, under Article VIII, Section 2(b), contracts shall be “unenforceable in the territories of any member.”74

Notwithstanding the ambiguity of the word “any,” which has misled these authors, Article VIII, Section 2(b) applies only to the exchange control regulations of members of the Fund (and their dependencies) other than the member in whose territories, whether metropolitan or dependent, judicial proceedings have been instituted. Article VIII, Section 2(b) refers to “the territories” of a member in the plural because the courts in all the member’s territories must apply the provision, and not because the provision reaches the exchange control regulations of the member’s territories.

The courts in which proceedings are brought apply their national law on exchange control when applicable by virtue of the force of that law, and not because of Article VIII, Section 2(b). Similarly, Article VIII, Section 2(b) has no function if the exchange control regulations of one dependent territory of a member are advanced as a defense in the courts of that member or of another of its dependent territories. The Fund does not regard the relationships between a member and its dependencies, or between a member’s dependencies, as international for the purposes of Article VIII, Section 2(a) or (b). The effect of exchange control regulations of the member or its dependencies when these relationships are involved is governed by the law of the forum without reference to the Articles.

Nowhere in the legislative history of Article VIII, Section 2(b) is there a suggestion that the provision applies to what may be called domestic exchange control regulations. There was no need to provide that a member must ensure that its courts will apply its own exchange control regulations or impose a particular kind of sanction when they have not been observed. The Fund has never objected that a member was attaching a sanction other than unenforceability, such as invalidity or illegality, to breaches of its own exchange control law. It should be noted too that the House of Lords in the Glass Fibres case distinguished between the exchange control regulations of other members and those of the United Kingdom. Contracts contrary to the former regulations were unenforceable under the provision, but contracts contrary to the latter regulations could be illegal under English law without reference to the provision.

It might be argued that Article VIII, Section 2(b) could have a useful role if applied to the exchange control regulations of the lex fori whenever those exchange control regulations were not maintained or imposed consistently with the Articles. The argument would rest on the supposition that contracts would be enforced by a member’s courts if the member’s exchange control regulations were inconsistent with the Articles, but the provision does not prescribe enforceability. The courts would decide in these circumstances whether contracts were enforceable or unenforceable, invalid, or illegal according to the lex fori. The courts would observe the dictates of their legislator without regard to the status of domestic exchange control regulations under the Articles.

As long ago as 1949, the Fund arrived at the conclusion that Article VIII, Section 2(b) does not apply to the exchange control regulations of the lex fori. The Fund’s authoritative interpretation declares that the provision applies to the exchange control regulations of “other members.”75

unjust enrichment and damages

The effect of Article VIII, Section 2(b) on claims for unjust enrichment is a question that arises when a payment is made under a contract declared unenforceable by the provision. Article VIII, Section 2(b) mentions only contracts and not claims based on other legal concepts, such as claims for the return of these payments, whether they are described as quasi-contractual or as based on doctrines of unjust enrichment.76 In the Dallal case, the claimant argued that if his claim to the U.S. dollar equivalent were rejected, the bank to which the rials had been paid (or to Bank Mellat as standing in the shoes of IBI) would be “unjustly enriched from its own culpable act.”77 The argument runs together both unjust enrichment and an allegation that the bank was negligent in not taking steps to comply with exchange control regulations by obtaining the necessary authority for the transaction. The question of damages for failure to apply for authorization by the party on whom the duty rests, or to obtain authorization, is another issue that has arisen in connection with Article VIII, Section 2(b) and is considered below.78

Bank Mellat replied in the Dallal case that the rials could be recovered directly from the bank to which they had been paid by the person entitled to them. The majority of the tribunal held, for a reason of procedure, that it could not entertain the claim based on unjust enrichment. The dissenting member of the tribunal disagreed with this conclusion also, on grounds related to both procedure and fairness.

The refusal of restitution may appear unduly harsh. It has induced one author to argue that unenforceability should be taken to mean that the forum must regard the contract as “ineffective, invalid or void” in its inception, so as to permit restitution under English law.79 The interpretation of unenforceability under the provision should not be forced into the doctrines of any particular system of national law. Article VIII, Section 2(b) is turned upside down if it is assumed that a purpose of the provision is to ensure that a party will be able to recover whatever he has paid under a contract that is unenforceable. The purpose of the provision is solely to ensure that judicial assistance will be withheld if a party seeks to get performance of a contract that is contrary to exchange control regulations.

As the sole purpose of Article VIII, Section 2(b) is to prohibit a court from decreeing the performance of contracts, or awarding damages for nonperformance, without declaring the contracts invalid, whatever effects are to follow unenforceability in this sense can be left to the law of the forum, including its private international law. Article VIII, Section 2(b) does not deal with these effects. English courts, for example, have been working out the consequences of unenforceability under the provision without equating it with invalidity. They have implied that restitution of what has been paid under an unenforceable contract may be possible80 and have decided that a contract may be partly enforceable and partly unenforceable.81

Although Article VIII, Section 2(b) does not deal expressly with claims for unjust enrichment, it has been pointed out that recoveries under these claims can undermine the policy of the provision. If a party makes a payment under a contract that is contrary to exchange control regulations and can do so without risk because he will be able to recover what he has paid if enforcement of the contract is refused, the defiance of exchange control regulations may be encouraged. Moreover, restitution under the doctrine of unjust enrichment may have the same practical effect sometimes as enforcement of the contract, and, in certain circumstances, may be even more favorable for the plaintiff than enforcement.82 Courts should be made aware of these considerations in dealing with claims for unjust enrichment.

A party to a contract may advance a claim to damages either because the other party undertook by contract to apply for an exchange license but failed to apply, or because the other party undertook by contract to obtain an exchange license but was refused one by the authorities. If a party were able to give an undertaking to obtain a license, and were made to pay damages for the failure to obtain it, the effect would be comparable to a principle that parties can insulate their contract from exchange control regulations notwithstanding Article VIII, Section 2(b).

The appropriate reaction to a plaintiff’s claim for damages for the defendant’s failure to request an exchange license in accordance with his undertaking may be less obvious because the license might have been granted if the defendant had applied for it, unless the defendant can prove that a license would not have been granted. The plaintiff might formulate his claim as delictual or quasi-delictual in order to forestall the defense of Article VIII, Section 2(b). If the defendant relied on Article VIII, Section 2(b), the plaintiff would probably have to overcome the defendant’s argument that the claim was contractual in substance; the contract was contrary to exchange control regulations; Article VIII, Section 2(b) protects the public interest; the quality of the defendant’s conduct does not set aside the public interest; the award of damages could have the same impact on the balance of payments as performance of the contract; and the Fund has held that damages should not be awarded for nonperformance of exchange contracts.83

foreign judgments and public policy of forum

Article VIII, Section 2(b) does not apply in proceedings to enforce an exchange contract that is contrary to exchange control regulations of the member in whose courts the proceedings are brought. What happens in the following circumstances? A contract is contrary to Patria’s exchange control regulations; an action is brought on the contract in the courts of Terra; the action succeeds because Terra’s courts decide, for example, that the contract is not an exchange contract within the meaning of Article VIII, Section 2(b); and the plaintiff then applies for recognition and execution of the foreign judgment in the courts of Patria. The plaintiff invites the courts to respect the maxim fiat justitia mat coelwn, but the strain on the courts can be imagined.84

The circumstances described above have arisen in two cases entitled Wilson, Smithett & Cope Ltd. v. Terruzzi, in which Patria was Italy and Terra was England. In the English case of that name,85 the Court of Appeal decided in favor of the plaintiff, a resident of England, on contracts it had entered into with Terruzzi, a resident of Italy. Both parties dealt in metals. Under the contracts, Terruzzi was speculating on the future prices of metals, but English law treated these contracts as agreements for delivery of the metals. Terruzzi was mistaken in his forecasts, the plaintiff closed out the contracts, and sued for a substantial amount in sterling, the currency of the contracts. Terruzzi pleaded that the contracts were contrary to Italy’s exchange control regulations and that the contracts were unenforceable under Article VIII, Section 2(b). The Court of Appeal held that the contracts were for merchandise and therefore not exchange contracts.

Terruzzi obviously did not have assets in England from which the plaintiff could compel satisfaction of the judgment. The plaintiff brought proceedings in Italy to have the English judgment declared valid and enforceable under the Italo-British Convention of February 7, 1964 on the Reciprocal Recognition and Execution of Decisions in Civil and Commercial Cases, which had been given the force of law in Italy by Law No. 280 of May 18,1973. Terruzzi resisted on the ground that to comply with the plaintiff’s request was contrary to Italy’s public policy as expressed in its exchange control laws. The specific provision cited to support this contention was Article 2 of Decree-Law No. 476 of June 6, 1956, converted into Law No. 786 of July 25, 1956, the relevant sentences of which were these:

Residents are forbidden to undertake acts likely to create obligations between themselves and nonresidents, other than contracts to sell goods by exportation or to purchase goods by importation, except with ministerial authorization. Residents may not export or import goods without ministerial authorization.

The Convention provided for the reciprocal recognition and execution of the decisions of civil and commercial courts, “provided the decision contains no order contrary to public policy in the State of the respondent court.”

The Milan court decided in favor of Terruzzi.

The cited monetary regulations are intended to safeguard the central pillars of the nation’s economic order, including the national currency, especially by curbing operations tending to impoverish the nation of capital and thus of domestic investment, and speculation ruinous to foreign exchange reserves.

The fact that the English judge had deemed the contract lawful is irrelevant, because what is lawful or neutral for a foreign court is not so for our system when the effectiveness of the foreign law governing the contract cannot be recognized in Italy because the purpose and motive of the contract itself are contrary to public policy.86

The plaintiff argued that certain regulations of the Ministry of Trade had given general authority for entry into a category of contracts that included the contracts in the Terruzzi case, although further and subsequent authorization was required for performance of the contracts. On the basis of this argument, the plaintiff asserted that the contracts were valid in their inception and freed from the objection of public policy. The Milan court did not agree that a general authorization had been granted. The contracts were caught by the first sentence of Article 2 and invalid ab origine in the absence of prior authorization. By contrast, the second sentence did not decree the initial invalidity of contracts for the export or import of goods,87 but ministerial authorization was necessary before these contracts could be performed. It will be observed that the Milan court, unlike the English Court of Appeal, did not treat the contracts entered into by Terruzzi as contracts for the purchase and sale of metals.

An appeal was taken to the Supreme Court (Corte Suprema di Cassazione), and on July 2, 1981, Division I: Civil upheld the decision of the Milan court, noting that the legal issue was one of first impression.88 The Supreme Court cited the provision of the Convention on public policy and held that the principle of the provision could not have been renounced for foreign decisions any more than it could be abandoned when foreign rules of law contrary to the public policy of Italy are relied on.

The Supreme Court rejected the argument that Article 2 was not applicable because the obligation in issue arose under the foreign judgment and not on the original contracts. Public policy required the court to consider the original obligations on which the judgment was based. Those obligations were contrary to Article 2 because the contracts were for speculation, giving rise only to transfers of foreign exchange, and were not for trade in metals. Article 2 nullified the contracts.89 An Italian court could examine the compatibility of a foreign judgment with Italian public policy even though the court was precluded from examining the reasons on which the foreign judgment was based.

The Supreme Court held that the Italian exchange control regulations were an integral part of Italian public policy. In particular, Article 2 “… is intended, while respecting international monetary cooperation, to safeguard the nation’s economic order in its essential foundations, such as the national currency…”90 The reference to international monetary cooperation is probably a reference to the Fund and its Articles. In the English proceedings, the Queen’s Bench Division, the court of first instance, discussed the consistency of Article 2 with the Fund’s Articles. The court noted that Article 2 provided for the possibility of ministerial authorization and that, in the absence of evidence that Italy administered Article 2 in a manner contrary to Italy’s obligations under the Fund’s Articles, consistency should be assumed.91

In the English proceedings, once the court held that Article VIII, Section 2(b) did not apply, it was not contested that the contract was governed by English law. The public policy of Italy was then irrelevant under English law. The Italian Supreme Court decided that in its proceedings Italian public policy was relevant and could not be set aside, provided, apparently, that the exchange control regulations respected “international monetary cooperation.” Subject to this proviso, “every question concerning the lawfulness, validity, or efficacy of contracts that are subject to restrictions under public law, such as contracts entailing monetary transfers unaccompanied by transfers of goods and services, is resolved separately, by each legal system involved on the basis of its own laws.”92 There is no reason to assume that an English court would reject this principle, even if in United City Merchants (Investments) Ltd. v. Royal Bank of Canada the House of Lords93 did not examine precisely what was prohibited by Peru’s exchange control regulations. But the principle as stated by the Italian court does not determine whether the legal system of which the exchange control regulations are part (Italy) governs the contract or whether the decision of a foreign court (England) negating the application of the legal system (Italy), including its public policy, is entitled to recognition and execution in the courts of the legal system (Italy).

The plaintiff in the Italian proceedings drew a distinction between domestic public policy and international public policy: even if Italian law dictated the prohibition of the contracts as a matter of domestic public policy, it did not follow that the English decision was contrary to international public policy. The Italian Supreme Court held that the English decision would not be recognized and executed whether Article 2 were regarded as an expression of domestic public policy or international public policy. Article 2 eliminated any link to a foreign legal system that would bind an Italian court to recognize and enforce the decisions of that foreign system if they were contrary to Italy’s public policy, whether domestic or international.

The plaintiff advanced an argument that it purported to derive from Article VIII, Section 2(b). That provision, the plaintiff argued, requires members to refrain from enforcing exchange contracts contrary to the exchange control regulations of other members. Exchange contracts deal with international means of payment. The implication of the provision was that other members are required to enforce contracts that are not exchange contracts even if they are contrary to a member’s exchange control regulations. Therefore, courts of the member whose exchange control regulations are in issue cannot interpose international public policy to refuse the recognition and enforcement of decisions of another member’s courts that treat (non-exchange) contracts as enforceable.

The Supreme Court treated the argument as unfounded. The court did not state that there was no implied duty under Article VIII, Section 2(b) to enforce non-exchange contracts, although the provision does not deal in any way with such contracts. The Supreme Court noted only that the Italian foreign exchange system had been fully approved by the Fund and the European Community.94

II. Movements of Capital and Treaty Law

In the Guerrino Casati case,95 the Court of Justice of the European Communities, which will be referred to in the rest of this article as the European Court, delivered, on November 11,1981, an important interpretation of the provisions of the Treaty of Rome on the free movement of capital. During argument in the proceedings, the Government of France cited Article VI, Sections 196 and 397 of the Fund’s Articles in support of its view on the basic issue before the court, but neither the court nor the Advocate General reacted to the citation.

Casati, an Italian national residing in the Federal Republic of Germany, was arraigned before an Italian criminal court on a charge of having attempted to export from Italy to Austria, without the authorization prescribed by Italian exchange control law, amounts of Italian and German currency. Article 67(1) of the Treaty of Rome provides that:

During the transitional period and to the extent necessary to ensure the proper functioning of the common market, Member States shall progressively abolish between themselves all restrictions on the movement of capital belonging to persons resident in Member States and any discrimination based on the nationality or on the place of residence of the parties or on the place where such capital is invested.

Article 69 authorized the Council to issue the necessary directives for the progressive implementation of Article 67. Article 71 requires members to endeavor to avoid the introduction of new restrictions or an increase in the severity of existing rules. The Council has adopted two directives to give effect to Article 67. Safeguards permitting derogations from the obligations of members are provided by Articles 73, 108, and 109, and a further safeguard appears in a third directive of the Council, issued on March 21, 1972.

The Italian court referred a string of questions to the European Court. The crucial question was whether, after the end of the transitional period, the restrictions on the movement of capital referred to in Article 67 must be deemed to be abolished notwithstanding the provisions of Article 69. The court had already interpreted the provisions on the free movement of persons, goods, and services and the right of establishment to mean that limitations or restrictions on these fundamental freedoms of the Common Market must be regarded as abolished after the transitional period, even though the Treaty authorized directives for the implementation of the provisions on these freedoms during the transitional period.

The court held that Article 67(1) differs from the provisions on the other freedoms, because the obligation on members with respect to capital is not absolute. Even after the end of the transitional period, the obligation is to liberalize capital movements only “to the extent necessary to ensure the proper functioning of the Common Market.” The Council must determine the application of the obligation from time to time according to the current requirements of the Common Market. The Council’s directives were determinations of this character, but the Council had not yet taken the view that the exportation of bank notes should be liberalized. It followed that restrictions on the export of bank notes had not been abrogated. The “standstill” provisions of Article 71 were not peremptory, as was apparent from the verb “shall endeavour,” and did not impose an unconditional obligation that private persons could assert against states.

A number of member governments presented collective and individual arguments in favor of the conclusion eventually reached by the court that Article 67 does not impose a directly applicable rule that confers subjective rights on persons. The Government of France presented the argument that Article VI, Section 3 of the Fund’s Articles authorizes members to control capital movements. Moreover, Article VI, Section 1 even permits the Fund to prevent a member from using the Fund’s resources to meet a large or sustained outflow of capital if the member fails to apply appropriate controls. It is not clear from the report of the case whether this argument was that the Treaty of Rome could not legally deprive members of their privileges under the Fund’s Articles or whether the provisions of the Articles were evidence of the intent of the drafters of Article 67(1) of the Treaty of Rome.

There should be no doubt that when the Fund’s Articles confer on members, or recognize, a privilege, an agreement by members to refrain from exercising the privilege is not a violation of the Articles. Nothing in Article VI has prevented members of the Community from agreeing to refrain from applying restrictions on capital transfers. No inconsistency with the Articles would have been created even if the Treaty had imposed peremptory obligations on members of the Community to forbear from applying such restrictions, or if the Council were to issue a directive under Article 69 that imposed such an obligation.

It might be argued that a clash with the Articles would be provoked if the Fund were to call on a member to exercise controls under Article VI, Section 1(a). Under the provision, however, the Fund can “request” but not require a member to impose capital controls. If there is no obligation, noncompliance with a request is not a breach of obligation, even if the Fund declares the member ineligible to use the Fund’s resources. The declaration of ineligibility under Article VI, Section 1(a) seems to be insulated from the charge of a failure to fulfill obligations, that is to say, a violation. Article VI, Section 1(a) does not refer to Article XXVI, Section 2(a), which authorizes the Fund to declare a member ineligible because of a failure to fulfill obligations,98 and Article XXVI, Section 2(a) appears to recognize the autonomous character of declarations of ineligibility under Article VI, Section 1(a).99 Both provisions seem to be drafted in a way that respects the fundamental character of a member’s privilege to decide whether or not to impose capital controls, but without placing an undue strain on the Fund’s resources.

The Treaty of Rome contains no definition of capital,100 but the Fund’s Articles define the concept by providing that “[p]ayments for current transactions means payments which are not for the purpose of transferring capital” and by defining, although without limitation, payments for current transactions.101 The three directives of the Council of the European Community provide guidance, however, in arriving at an understanding of what is considered capital for the purpose of the Treaty of Rome. Nevertheless, it is possible, at least in principle, that a category of payments might be considered payments for current transactions by the Fund but capital transfers by the Community and subject to the softer obligations of Community law on capital. Nothing in Community law on capital resembles Article 4 (“Obligations in existing multilateral international agreements”) of the OECD Code of Liberalization of Capital Movements:

Nothing in this Code shall be regarded as altering the obligations undertaken by a Member as a Signatory of the Articles of Agreement of the International Monetary Fund or other existing multilateral international agreements.102

III. Persistence of Par Values

Legal problems involving the par values of currencies did not disappear with the abrogation of the par value system when the Second Amendment of the Articles became effective on April 1, 1978. Moreover, the relevance of former par values is not confined to circumstances that preceded the Second Amendment. Some problems that continued to exist after that date have been disposed of by official action or by the courts, but other problems persist. It is reasonable to suppose that all problems will disappear in time.

The last par value of a currency has been chosen by some courts as the solution when called upon to apply the Poincare franc as the unit of account in which limits on liability are expressed under the Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, 1929. The last par value of a currency as the basis for calculating the limits is only one of the numerous solutions that courts have resorted to when confronted with the difficulty of applying a unit of account, such as the Poincare franc, that is defined in terms of gold by a treaty.103 The problem arises in present circumstances because gold has been deprived of an official price and is no longer the common denominator for expressing the value of currencies under the Articles.

Some courts in the United States have adopted the last official price for gold, which means the last par value of the U.S. dollar, because it was a direct link between gold and the dollar that received official endorsement.104 The purpose of the Warsaw Convention, it is held in these cases, was to establish an official monetary value on which to base limits of liability, and it cannot be assumed that the Congress of the United States, when approving the Second Amendment, intended to declare the limits obsolete.105 Decisions in other countries also have applied the last par value of the currency in which judgments are expressed.106

Kommanditgesellschaft in Firma Gebruder Glunz v. Hauptzollamt Hamburg-Waltershof, decided by the European Court on February 3,1982,107 is of interest not only because par values were involved at a time when members were not observing them but also because developments in the Articles affected the decision. A common customs tariff for members of the Community in their commercial relations with nonmembers is fundamental for the Common Market, and criteria of valuation that ensure uniform rates of duty at whatever geographical point imports enter the Community are necessary to give effect to the common tariff.108 The case demonstrates, however, that this principle need not be paramount in all circumstances and that the court may give decisive effect to another relevant principle.

The case involved General Rule C.3, which was adopted on June 28, 1968 as part of the rules applicable to the common customs tariff:

The unit of account (u.a.) by reference to which certain specific customs duties are expressed or the scope of certain headings or subheadings is defined has a value of 0.88867088 grams of fine gold. The exchange rate to be used in converting the unit of account into Belgian francs, Dutch guilders, French francs, German marks, Italian lira or Luxembourg francs shall be that corresponding to the par value communicated to and recognized by the International Monetary Fund in respect of these currencies. 109

General Rule C.3 was not amended until regulations of November 23 and 27, 1978 substituted the European unit of account (EUA), which was defined by reference to a basket of currencies, for the gold unit, with effect on January 1, 1979.110

In August 1978, the Glunz enterprise imported some ceramic statuettes from outside the Community and had them cleared through customs at Hamburg. The goods were classified under a heading that made them subject to an ad valorem customs duty of 10 percent. In September 1978, the defendant, the customs authority at Hamburg, reclassified the goods, as a result of which they became subject to a duty of 11 percent but subject also to a minimum specific111 duty of 70 units of account per 100 kilograms gross. The consequence was that the minimum duty applied, on the basis of DM 3.66 per unit in accordance with the par value for the deutsche mark that had been communicated to the Fund.112 The total amount due was DM 72,045.59.113

In the proceedings in Hamburg, Glunz objected to the assessment on various grounds. His principal objection was that it was not legitimate to charge a higher customs duty than the one that would be applicable if the goods had been imported into the territory of the member, Italy, whose currency at the date of importation was most depreciated in relation to the par value communicated to the Fund. Glunz argued that unless this norm applied for all imports into the Community, the customs tariff would be discriminatory and not uniform in its application. On the basis of the par value of Lit 625 declared to the Fund by Italy and the exchange rate in the market on the relevant date, the amount payable if the goods had been imported into Italy would have been equivalent to DM 29,342.30. The Hamburg court asked the European Court to decide whether General Rule C.3 could be interpreted to avoid such differences and whether the rule was valid if it could not be interpreted in this way.

Glunz did not complain that the relevant date in August 1978 was subsequent to the effective date of the Second Amendment. Up to March 31, 1978, par values continued to exist under the law of the Fund, even though they were not being observed by members as the basis for exchange transactions in their territories, but par values were abrogated by the Second Amendment. Glunz did argue that it should not be made to suffer as a result of delay by the Council in amending General Rule C.3 to make it reflect actual exchange rates. The Council replied to this charge by recalling that the Community had begun the process for change as early as October 1976, after the outcome of the meeting of the Fund’s Interim Committee in Jamaica in January 1976, and that the Community had accelerated the process when par values were abrogated. The Commission seemed to argue that delay should not be judged by reference to any date earlier than April 1, 1978.

The court reviewed monetary developments from 1968 to April 1, 1978,114 and noted the efforts within the Community to arrive at a new unit of account. The court agreed that uniform rates of duty were fundamental but rejected the interpretation based on the weakest currency. The mention of individual currencies in General Rule C.3 showed that they could not be discarded except for the one that at any given moment yielded the smallest amount of duty. The literal interpretation did more justice to the fiscal and economic objectives of the Community than the interpretation based on the weakest currency. The level of duties had been calculated with particular regard to the necessities of certain economic sectors of the Community, including the protection of competing Community products.115

On the question whether the disparate effects of the court’s interpretation meant that General Rule C.3 was invalid, the court held that:

At the present stage of integration, where Member States essentially retain their powers in monetary matters, recourse to the mechanism of specific duties in the Common Customs Tariff will inevitably lead to certain differences in the incidence of the duties charged.116

The court was probably referring to the fluctuations of exchange rates, which were not eliminated by the margins of the European Monetary System.117

Moving to the allegation of delay, the court thought it conceivable that the Council had acted contrary to the principles invoked by Glunz if it could be established that the Council had deliberately refrained from introducing a solution that was within its power.

It is not clear from the evidence before the Court that such a proposition can be established in respect of the period from 1974 to 1978, a period characterized by uncertainties as to subsequent monetary developments. In those circumstances, the reluctance of the Council to adapt Community provisions to the new situation may be explained by the difficulty in laying down, not only in the sphere of customs but also in other spheres, criteria enabling stable rates of exchange to be fixed.

It should be remembered that nearly seven years were required before it was possible to reform the Bretton Woods monetary system on 1 April 1978, and that in view of the GATT rules any unilateral change by the Community of the monetary parities to be used in converting specific customs duties118 risked creating difficulties with the Community’s trading partners, in the absence of new parities established within the International Monetary Fund.

In those circumstances, it does not appear that, by awaiting the conclusion of the negotiations within the International Monetary Fund in 1978 before amending General Rule C.3, the Council was in breach of the Treaty.119

The court held that the rule, as interpreted, was valid.

In the Glunz case, the issue involved par values under the Articles as of a time, August 1978, when par values had ceased to exist under the Articles. Yet the abrogation of par values on April 1,1978 seems not to have been raised as an objection, and the decision of the European Court confirmed the continued application of them until General Rule C.3 was amended. In Flamm v. Commission,120 the applicant contended that under the terms of his contract with the Commission the parity under the Articles between the Belgian franc and the Italian lira as of January 1,1965 had to be applied in April 1979. The reply, among others, was that par values had been abrogated by the Second Amendment, and this argument seems to have had some effect on the decision delivered by the European Court on July 1, 1982. Flamm relied on a parity as of a date when legally it did exist, while Glunz relied on a par value as of a date when legally it did not exist, but neither claimant succeeded.

Flamm, an employee of the Commission and stationed in Italy, entered into a contract with the Commission on December 23, 1971 under which he received a loan from the Commission for the construction of a dwelling in Italy. In accordance with administrative decisions of the Commission, the loans were to be expressed in Belgian francs, but advances were to be made in installments in the currency of the country in which the dwelling was to be constructed, on the basis of the parity ruling at the time of the payment. Interest and installments of repayment were to be deducted each month from the official’s remuneration. Article 15 of the contract provided that:

Any transfers by the borrower to the lender by way of early repayment or in payment of monthly installments shall be made in Belgian francs or in the currency of the country in which the property to be financed is situated in which the funds arising from this loan were advanced. The funds in question shall be converted into Belgian francs on the basis of the parity ruling as at the date of the transfer.

Until March 31, 1979, both advances and repayments were made on the basis of the 1965 parity between the Belgian franc and the lira under the Fund’s Articles. Monthly salary, which was expressed in Belgian francs, was paid in lire on this basis also, but it was adjusted according to a formula, which in March 1979 resulted in a weighting of 157.8 for lire against francs. Deductions for repayment were made on the basis of the 1965 parity. Weightings and adjustments in them were made originally to compensate for differences in the cost of living among places of employment, but later were made to offset fluctuations in rates of exchange. The court considered this technique valid in view of the uncertainties about future exchange arrangements after the breakdown of the par value system.

For April 1979, the deduction from Flamm’s remuneration was increased because of changes in administrative decisions under which, for calculations under contracts, including calculations of remuneration and repayments of loans, the EUA, with certain adjustments for the cost of living, had been substituted for parities under the Articles. The rate of exchange on the basis of which the deduction for April 1979 was calculated, as a result of the so-called updated parities and adjustments, was 18.35 lire per Belgian franc.121

Flamm’s main argument was based on the language of a decision of the Commission under which the loan was made and which was incorporated by reference in the Commission’s contract with Flamm:

Loans covered by this provision shall be expressed in Belgian francs. The corresponding payments shall be made in the currency of the country where the property to be financed is situated, on the basis of the parity ruling as at the time of payment.122

According to Flamm, the “corresponding” payments comprehended not only advances under the loan by the Commission but also repayments by the borrower, on the principle that the same parity should apply to both. The court dismissed this argument by referring to Article 15 of the contract, under which the parity at the date of each “transfer” by way of repayment had to be applied. Moreover, it was consonant with the circumstances that the parity referred to by the agreement should be the parity applied for the calculation of remuneration.

One of the arguments of the Commission was presented as follows:

After convertibility of the dollar into gold was discontinued (15 August 1971) nobody could seriously believe in fixed parities. The Jamaica Agreements (January 1976) officially abolished IMF parities and as from March 1973 the de facto position was that currencies floated freely. Consequently, redrafting of Article 63 of the Staff Regulations [on remuneration] and Article 17 of Annex VII [on repayments] no later than 1 January 1978 became not only an economic but also a legal requirement.123

The “Jamaica Agreements” did not officially abolish par values. A communiqué of a committee of the Fund’s Board of Governors could not produce that effect. Par values continued to exist under the law of the Fund until the Second Amendment took effect, but the Commission’s view of the Jamaica communiqué is a common fallacy.

By April 1979, par values had ceased to have legal existence, and perhaps this circumstance is what the European Court was referring to in the first sentence of the following obscure passage:

In consequence of the events in the money markets which occurred in and after 1971, the parity notified to the International Monetary Fund for the lira ceased to be valid. For a time, the lira floated freely. Finally, with the introduction of the European Monetary System, a new exchange rate, which might fluctuate within certain limits, was determined for the currencies of the Member States which participated in the system.124

IV. Some Final Comments

The cases discussed in this article suggest answers to the twelve questions that have been posed in the introductory section. The answers, and some evaluation of them, are summarized in relation to each question:

1. In England, the House of Lords as the final appellate court has endorsed, without further examination, the narrow interpretation of “exchange contracts” as contracts for the exchange of one means of payment against another. The decision is regrettable for various reasons, but the concept of the “monetary transaction in disguise” broadens the interpretation a little by permitting a series of contractual relationships to be run together in some circumstances. The effect can enable a court to discover an exchange contract even though the contractual relationship on the basis of which suit is brought is not itself an exchange contract and even though one of the other contractual relations in the series involves the purchase and sale of merchandise. Furthermore, the House of Lords has held that part of a contract is enforceable as a contract for the purchase and sale of merchandise while the rest of the contract is unenforceable as an exchange contract.

The House of Lords has endorsed the propositions that the court must raise the point of the unenforceability of a contract even if the defendant has not, and that this step does not mean that unenforceability is equivalent to illegality.

2. The relationship between Article VIII, Section 2(b) and the private international law of the forum is complex. One case has raised the question whether a forum should forbear from applying the provision because the forum is unaware whether or how the law governing the contract under the forum’s private international law would apply Article VIII, Section 2(b). It is submitted that the forum should apply the provision and not defer to the law governing the contract under private international law.

3. The question whether the initial burden of proof is to establish the consistency or the inconsistency of exchange control regulations with the Articles has been answered in different ways. In one case, the defendant, relying on Article VIII, Section 2(b) and asserting the consistency with the Articles of the regulations on which his defense rested, was held to bear the burden of proving his assertion. The plaintiff, in presenting his claim, was not required to prove in the first instance that the regulations were inconsistent with the Articles.

In another case, the court held that the defendant had not proved that the regulations it had cited applied to its indebtedness, but the dissenting judge was satisfied that the defendant had discharged the burden of proving the existence of an applicable regulation. Furthermore, he was willing to assume, for reasons that apparently were not advanced by the defendant, that the regulation was consistent with the Articles, so that the burden of rebutting consistency rested on the plaintiff.

Discussion of the award of an arbitral tribunal shows the necessity to distinguish between two principles. First, Article VIII, Section 2(b) provides that a contract shall be unenforceable when it is contrary to exchange control regulations that are consistent with the Articles. Second, the provision does not provide that a contract shall be enforceable when it is in accord with regulations that are consistent with the Articles. A consequence of the failure to observe this distinction can lead to an inappropriate allocation of the burden of proof when Article VIII, Section 2(b) is involved in a case.

4. The narrow view of exchange contracts leads to the conclusion that the currencies “involved” are those that are to be exchanged, but the better view is that exchange contracts are contracts that, if performed, would affect the balance of payments of a member and that the currency “involved” is the currency of the member whose balance of payments would be affected.

5. Article VIII, Section 2(b) should apply to exchange control regulations whether they are in existence when a contract is made or whether they are imposed subsequently. The situation when enforcement is sought should be decisive. This conclusion is consistent with the concept of unenforceability and promotes the policy of the provision.

6. Private parties to an exchange contract should not be permitted to nullify the application of Article VIII, Section 2(b) by the terms of their contract, by providing, for example, that the contract is to be performed notwithstanding exchange control regulations. This prohibition should not apply to a governmental debtor that agrees by treaty not to resist payment by relying on the provision.

7. Article VIII, Section 2(b) applies to the exchange control regulations of other members and not to the regulations of the lex fori.

8. Article VIII, Section 2(b) does not deal with claims to recover payments under unenforceable contracts on the basis of unjust enrichment. These claims are governed by the lex fori, including its private international law, without reference to the provision. Allowance of the claims, however, may have effects similar to enforcement and may encourage attempts to defy exchange control regulations.

9. Article VIII, Section 2(b) should be understood to negate claims to damages for nonperformance of the contractual undertaking of a party to obtain an exchange license if the party’s request for a license is refused. Claims to damages for failure to apply for an exchange license might involve more complex considerations, but these claims also might be rejected.

10. If a court rejects the application of Article VIII, Section 2(b) and gives judgment in favor of a plaintiff notwithstanding the exchange control regulations that are part of the law of another member, it is possible that the courts of that other member will refuse to enforce the judgment as contrary to their public policy.

11. There is no legal inconsistency between the provisions of the Articles on the control of capital movements and the provisions of other treaties, such as the Treaty of Rome, under which members agree not to control capital movements, provided that the other treaties apply the same definitions of capital and current transactions as are applied by the Fund.

12. The courts have been, and are still being, called upon to deal with the effects of former par values on various issues. The Second Amendment did not result in the immediate cessation of the relevance of former par values under other legal instruments, but it is reasonable to suppose that by official or judicial action all the legal effects of former par values will disappear in time. Some of the cases decided by the European Court discuss the question of legal liability for delay in official action to substitute actual exchange rates for former par values.

SUMMARIES

Current Account Imbalances and Capital Formation in Industrial Countries, 1949–81—alessandro penati and michael dooley (pages 1–24)

This paper studies the role of domestic and foreign savings in financing capital formation in 19 industrial countries during the years after World War II. The authors’ interpretation of the statistical evidence is that there is very little support for the view that, over the medium term, goods and services freed by savings in one industrial country are systematically made available through current account imbalances to finance investment in physical capital in other industrial countries. Instead, there is strong support for the view that both levels and changes in domestic savings are systematically matched by levels and changes in domestic investment. The close relationship between domestic savings and domestic investment over this period suggests that resources did not flow from one country to another in order to equalize rates of return on real capital.

The study also finds little support for the view that the integration of financial capital markets in recent years has altered the relationships among domestic savings, investment, and current account imbalances in industrial countries. The evidence suggests that changes in net foreign assets, and the associated current account imbalances, were no more sensitive to cross-country differences in rates of return on physical capital in the ten years ending in 1981 than they had been in the 1950s, when extensive capital controls and trade restrictions hampered the economic integration of the industrial countries.

The Private SDR: An Assessment of Its Risk and Return—pierre van den boogaerde (pages 25–61)

This paper reviews the relative attractiveness, in terms of both total return and risk, of SDR-denominated investments during 1977–82. It simulates investments by sequentially using each of the component currencies and the SDR itself as a base currency and investing alternatively in the domestic base currency, in the four other component currencies, and in SDRs.

The starting point is that if the correlation coefficients between the returns on the different currencies included in the SDR basket are lower than one, the standard deviation of the SDR will be less than the weighted average of the individual standard deviations. The outcome fully meets the expectation: the standard deviation of the total return on the SDR is lower than the standard deviations of the returns on each of its component currencies, whichever currency is used as a unit of account, with the exception of the pairwise relationship between the deutsche mark and the French franc owing to both currencies’ inclusion in the European Monetary System (EMS). The study also demonstrates that an assessment of the volatility of the SDR and its component currencies, as measured by the beta coefficient, does not provide an adequate measure of riskiness for the non-dollar currencies, because of the relatively low correlation between these currencies and the SDR during the study period. Finally, and for whichever currency is used as a unit of account, the SDR had an above-average total return during the period studied.

An investment in SDRs thus produced above-average yields and represented a much lower risk than investments in any of its constituent currencies in the study period, which encompasses both a period of weakness and a period of strength of the dollar. Consequently, a number of international market operators could be attracted to the idea of using the SDR as a unit of account.

A Test of the Efficacy of Exchange Rate Adjustments in Indonesia—g. russell kincaid (pages 62–92)

This paper analyzes the impact of relative prices on the non-oil trade account in Indonesia, with special emphasis on the effectiveness of the exchange rate adjustment of November 1978. An exchange rate adjustment can successfully redirect resources into export and import-competing activities only if the more favorable cost-price relationship established immediately following the devaluation is not subsequently reversed by domestic price increases. During the first year following the Indonesian devaluation, tight fiscal and monetary policies were successful in sustaining the improvement in relative prices stemming from the devaluation. In response, the growth in non-oil export volume accelerated sharply, and growth in imports slowed markedly. With the additional foreign resources made available by the second round of oil price increases in 1979–80, domestic expenditure outstripped domestic productive capacity. Relative prices of domestic to foreign goods, in domestic-currency terms, returned to the level existing prior to the devaluation; growth in non-oil export volume virtually ceased, and import volume expanded rapidly. This experience indicates the importance of fiscal and monetary policies in supporting an exchange rate action.

To disentangle the impact of various factors on the non-oil trade account, the import-demand and export-supply functions were econometrically estimated. Import demand was found to be positively related to real income and to excess supply of money, but negatively related to relative price. The supply response of exports was positive for both relative prices and the capacity variable. In both equations, the long-run elasticities were larger than the short-run elasticities; the long-run elasticities for export supply were substantially higher than the short-run elasticities. The estimated equations were employed to simulate the impact of alternative exchange rate scenarios on the non-oil trade account. The results of these simulations, which should be interpreted with due caution, indicate that the non-oil trade deficit was substantially lessened by the exchange rate adjustment of November 1978.

The 1981–82 Recession and Non-Oil Primary Commodity Prices—ke-young chu and thomas k. morrison (pages 93–140)

This paper analyzes the underlying causes of movements in non-oil primary commodity prices. The paper focuses on the large commodity price decline in 1981–82, but investigates this recent experience in light of the major postwar developments in primary commodity markets. An econometric model confirms that from 1957 to 1982, primary commodity prices, in terms of dollars, were positively related to economic activity in the industrial countries and to world inflation, and inversely related to the appreciation of the dollar exchange rate against other major currencies and to supply shocks. Evidence also suggests that commodity prices are inversely related to changes in the real rate of interest.

The cumulative decline in 1981–82 of 25 percent in commodity prices (in nominal dollar terms) is shown to be the largest and most protracted decline in more than three decades. Commodity prices deflated by manufactures prices fell by 20 percent in 1981–82 to a postwar low. The sharp decline in commodity prices during 1981–82 is shown to follow from a more unstable pattern that was first visible in the early 1970s. During 1972–82, primary commodity prices were more than three times as unstable as they were during 1957–71, and fluctuations in economic activity, inflation, exchange rates, and interest rates were also more pronounced.

Commodity prices appear to have responded more strongly to economic activity in the last decade than they did during the preceding 15 years. Although movements in economic activity were influential in both the 1975 and 1981–82 price declines, the 1981–82 decline is shown to have been caused relatively more by exchange rate movements (and possibly interest rate movements) and relatively less by movements in economic activity than was the 1975 decline.

Expectations of Inflation and Interest Rate Determination—rüşdü saracoglu (pages 141–78)

In recent years, there has been considerable dispute concerning the underlying causes of both the high levels and the variability of interest rates. In this paper, the determination of interest rates in five industrial countries (the United States, France, the Federal Republic of Germany, Japan, and the United Kingdom) is studied, with particular attention paid to the roles of monetary factors and expectations of inflation.

The theoretical discussion centers on Fisher’s hypothesis that relates interest rates to expected rates of inflation. It is argued that much of the earlier research on this issue is flawed, because it is based on microeconomic partial-equilibrium analysis and assumes an implausible expectations-formation mechanism. This paper, by contrast, follows recent developments in economic theory in suggesting that the formulation of expectations—and, therefore, the determination of interest rates—is influenced not only by past rates of inflation but also by a host of other variables, such as changes in the money supply or in economic activity. Moreover, variables that influence expected rates of inflation are, themselves, likely to be influenced by these expectations. Consequently, the methodology developed in this paper is intended to reflect the simultaneities and dynamic patterns of feedback that characterize the macroeconomic data, as well as accounting for the fact that market participants utilize data other than past rates of inflation in forming their expectations of inflation. Market participants’ subjective expectations of inflation are proxied by forecasts of inflation that are optimal in the sense of minimizing the variance of forecast errors conditional on information available to market participants. These forecasts are then used to compute ex ante real-interest-rate series for each country and to test several hypotheses regarding interest rates.

The empirical results of the paper indicate that twice during 1968–82, real interest rates underwent substantial changes. These changes had a substantial macroeconomic impact, particularly with respect to inflation. It is argued that the expansionary impact of negative real interest rates following the first oil shock led to the intensification of the inflationary process, whereas the emergence of positive real interest rates following the second oil shock was instrumental in bringing inflation rapidly under control.

Other results suggest that systematic, and thus predictable, changes in the money supply that lead to systematic shifts in the time path of inflation leave real interest rates unchanged, thus supporting a variant of Fisher’s hypothesis. Consequently, it is argued that a relaxation of monetary policy cannot, necessarily, be expected to reduce real interest rates, particularly in the medium run and long run, if such a relaxation causes an upward revision in expected rates of inflation.

The Fund Agreement in the Courts—XIX—joseph gold (pages 179–234)

The present installment in the series of articles on the effects of the law of the International Monetary Fund on litigation discusses decisions by courts in England, the United States, the Netherlands, and Italy, as well as decisions by the Court of Justice of the European Communities and by an arbitral tribunal. The following questions are among the issues affected by the Fund’s Articles of Agreement that are raised by these cases:

(1) What is the meaning of “exchange contracts” in Article VIII, Section 2(b) of the Articles?

(2) What is the relationship between Article VIII, Section 2(b) and the private international law of the forum?

(3) On whom does the burden rest of proving that the conditions of Article VIII, Section 2(b) are met or are not met, and what is the effect on the allocation of the burden of proof between the parties if the court itself introduces the question of applying Article VIII, Section 2(b)?

(4) What is the currency “involved” under Article VIII, Section 2(b)?

(5) Does Article VIII, Section 2(b) apply to an exchange contract if the exchange control regulations that are in issue were adopted after the contract was entered into?

(6) Should the parties to an exchange contract be allowed to negate the effect of exchange control regulations?

(7) Does Article VIII, Section 2(b) apply to exchange control regulations if they are part of the law of the forum?

(8) If a payment is made under an exchange contract that is unenforceable under Article VIII, Section 2(b), can the amount paid be recovered as an unjust enrichment of the payee?

(9) Should a party be awarded damages if the other party undertook to apply for or to obtain an exchange license and failed to perform the undertaking?

(10) If a court rejects the application of Article VIII, Section 2(b) and gives judgment in favor of a plaintiff notwithstanding the exchange control regulations that are part of the law of another member of the Fund, will that member’s court recognize and execute the judgment?

(11) What is the relationship between the provisions of the Articles and the provisions of the Treaty of Rome on movements of capital?

(12) Are the former par values of currencies still relevant in issues that courts are called upon to resolve?

RESUMES

Déséquilibres des transactions courantes et formation de capital dans les pays industrialisés, 1949–81—alessandro penati et michael dooley (pages 1–24)

La présente étude porte sur le rôle de l’épargne intérieure et extérieure dans le financement de la formation de capital dans 19 pays industrialisés depuis la fin de la deuxième guerre mondiale. Selon l’interprétation que les auteurs donnent des statistiques disponibles, il y a très peu d’éléments en faveur de la thèse selon laquelle, dans le moyen terme, les biens et services libérés par l’épargne dans un pays industrialisé sont systématiquement offerts, par le biais des déséquilibres des transactions courantes, pour financer les investissements en capital matériel dans d’autres pays industrialisés. Il existe en revanche de nombreuses indications qui corroborent la thèse selon laquelle les niveaux et variations de l’épargne intérieure ont systématiquement pour contrepartie les niveaux et variations de l’investissement intérieur. La relation étroite entre l’épargne intérieure et l’investissement intérieur pendant la période considérée donne à penser qu’il n’y a pas eu de flux de ressources d’un pays à l’autre ayant pour effet d’égaliser les taux de rendement du capital réel.

Les auteurs de l’étude ont également trouvé peu d’éléments qui justifient la thèse selon laquelle l’intégration des marchés des capitaux financiers au cours des dernières années a modifié les relations entre l’épargne intérieure, les investissements et les déséquilibres des transactions courantes dans les pays industrialisés. Les faits observés semblent indiquer que les variations des avoirs extérieurs nets et les déséquilibres des transactions courantes dont elles ont été accompagnées n’ont pas été plus sensibles aux différences entre les taux de rendement du capital matériel d’un pays à l’autre durant la décennie qui s’est achevée en 1981 que pendant les années 50, où les mesures étendues de contrôle des mouvements de capitaux et les restrictions commerciales faisaient obstacle à l’intégration économique des pays industrialisés.

Le DTS privé: risques et rendement —pierre van den boogaerde (pages 25–61)

L’auteur analyse l’attrait relatif, sous forme à la fois de rendement total et de risques, des placements libellés en DTS pendant la période 1977–82. Il procède à une simulation des placements en prenant, successivement, les diverses monnaies du panier puis le DTS lui-même comme monnaie de base et en effectuant tour à tour des placements dans la monnaie de base intérieure, dans les quatre autres monnaies du panier et en DTS.

L’auteur pose au départ que, si les coefficients de corrélation entre les rendements des différentes monnaies incluses dans le panier du DTS sont inférieurs à l’unité, l’écart type du DTS sera inférieur à la moyenne pondérée des divers écarts types. Les résultats confirment pleinement cette hypothèse: l’écart type du rendement total du DTS est inférieur aux écarts types des rendements de chacune des monnaies qui composent le panier, quelle que soit la monnaie retenue comme unité de compte, sauf dans le cas de la relation entre le deutsche mark et le franc français, en raison de l’appartenance de ces deux monnaies au Système monétaire européen (SME). L’étude démontre également qu’une évaluation de la volatilité du DTS et de ses composantes, exprimée par le coefficient beta, ne permet pas de mesurer de manière satisfaisante le degré de risque des placements en monnaies autres que le dollar, en raison de la corrélation relativement faible constatée entre ces monnaies et le DTS au cours de la période considérée. Enfin, et ce, quelle que soit la monnaie retenue comme unité de compte, le rendement total du DTS a été supérieur à la moyenne pendant cette même période.

Les placements en DTS ont donc eu un rendement plus élevé que la moyenne et ont été beaucoup moins risqués que les placements dans l’une quelconque des monnaies du panier pendant la période étudiée, c’est-à-dire à une époque où le dollar a connu, tour à tour, une période de faiblesse et une période de fermeté. En conséquence, un certain nombre d’opérateurs sur le marché international pourraient juger attractive l’idée d’utiliser le DTS comme unité de compte.

Détermination de l’efficacité de l’ajustement du taux de change opéré en Indonésie—g. russell kincaid (pages 62–92)

L’auteur analyse l’impact des prix relatifs sur la balance commerciale (pétrole non compris) de l’Indonésie, en étudiant tout particulièrement l’efficacité de l’ajustement du taux de change effectué en novembre 1978. Un ajustement du taux de change ne peut permettre de réorienter avec succès des ressources vers des activités qui concurrencent les exportations et les importations que si l’amélioration du rapport coûts/prix qui suit immédiatement la dévaluation n’est pas renversée par la suite du fait de la hausse des prix intérieurs. En Indonésie, au cours de la première année qui a suivi la dévaluation, des politiques budgétaire et monétaire rigoureuses ont permis d’étayer l’amélioration des prix relatifs découlant de la dévaluation. En conséquence, la croissance en volume des exportations non pétrolières s’est accélérée fortement, et la croissance des importations s’est ralentie de façon marquée. La deuxième série de relèvements des prix du pétrole en 1979–80 ayant dégagé des ressources extérieures supplémentaires, les dépenses intérieures ont dépassé la capacité de production intérieure. Le rapport entre les prix des biens produits dans le pays et ceux des biens étrangers, exprimés en monnaie nationale, a retrouvé son niveau d’avant la dévaluation; la croissance en volume des exportations non pétrolières s’est pratiquement arrêtée et le volume des importations s’est gonflé rapidement. Cette situation montre l’importance des politiques budgétaire et monétaire en tant que mesures d’accompagnement d’un ajustement de taux de change.

Afin d’isoler l’impact qu’exercent divers facteurs sur la balance commerciale non pétrolière, l’auteur estime par des méthodes économétriques la fonction de demande d’importations et celle d’offre d’exportations. Il constate que la demande d’importations présente une relation positive avec le revenu réel et avec l’offre excédentaire de monnaie, mais une relation négative avec les prix relatifs.

L’offre de produits d’exportation réagit d’une manière positive aux variations des prix relatifs et à la capacité. Dans l’une et l’autre équation, les élasticités à long terme sont plus fortes que les élasticités à court terme; les élasticités à long terme relatives à l’offre d’exportations sont sensiblement plus élevées que les élasticités à court terme. Les équations estimées sont utilisées pour simuler l’effet d’autres scénarios de taux de change sur la balance commerciale non pétrolière. Les résultats de ces simulations, qui doivent être interprétés avec la prudence qui s’impose, indique que le déficit du commerce non pétrolier a été sensiblement amoindri par l’ajustement du taux de change de novembre 1978.

La récession de 1981–82 et les cours des produits primaires non pétroliers—ke-young chu et thomas k. morrison (pages 93–140)

Les auteurs analysent les causes profondes des variations des cours des produits primaires non pétroliers. L’étude est axée sur la forte baisse des cours des produits de base en 1981–82, mais l’examen de cet événement récent s’inspire des principaux faits intervenus sur les marchés des produits primaires depuis 1945. Un modèle économétrique le confirme: de 1957 à 1982, il a existé une relation positive entre les cours en dollars des produits primaires et l’activité économique dans les pays industrialisés et l’inflation mondiale, et une relation inverse entre ces cours et la hausse du dollar par rapport aux autres grandes monnaies et les “chocs” subis par l’offre. En outre, l’observation des faits donne à penser qu’il existe une relation inverse entre les cours des produits de base et les variations du taux d’intérêt réel.

Il ressort de l’analyse que la baisse cumulative égale à 25 % qu’ont enregistrée en 1981–82 les cours des produits de base (exprimés en dollars nominaux) a été la plus marquée et la plus longue qu’on ait connue depuis plus de 30 ans. Corrigés au moyen des prix des produits manufacturés, les cours des produits de base ont diminué de 20 % en 1981–82 pour tomber au niveau le plus bas depuis 1945. Les auteurs montrent que la chute des prix des produits de base en 1981–82 s’inscrit dans une tendance au renforcement de l’instabilité qui s’est manifestée pour la première fois au début des années 70. Pendant la période 1972–82, les cours des produits primaires ont été trois fois plus instables que pendant la période 1957–71, et les fluctuations de l’activité économique, de l’inflation, des taux de change et des taux d’intérêt ont également été plus prononcées.

Les cours des produits de base semblent avoir réagi plus fortement à l’activité économique au cours des dix dernières années que pendant les quinze années antérieures. Bien que les variations de l’activité économique aient influé sur les diminutions des prix enregistrées en 1975 et 1981–82, il apparaît que la chute de 1981–82, comparée à la baisse de 1975, résulte relativement plus de l’évolution des taux de change (et sans doute des taux d’intérêt) et relativement moins des mouvements de l’activité économique.

Anticipations inflationnistes et détermination des taux d’intérêt—rù§dù saracoglu (pages 141–78)

La question des causes profondes des niveaux élevés et de la variabilité des taux d’intérêts a été très controversée ces dernières années. L’auteur a étudié la détermination des taux d’intérêt dans cinq pays industrialisés (les Etats-Unis, la France, la République fédérale d’Allemagne, le Japon et le Royaume-Uni) en accordant une attention particulière au rôle des facteurs monétaires et des anticipations inflationnistes.

Le débat théorique est centré sur l’hypothèse de Fisher selon laquelle les taux d’intérêt sont liés aux taux d’inflation attendus. D’après l’auteur, les études précédemment consacrées à cette question sont pour une large part défectueuses dans la mesure où elles reposent sur une analyse microéconomique d’équilibre partiel et sur l’hypothèse d’un mécanisme peu plausible de formation des anticipations. La présente étude suit, en revanche, l’évolution récente de la pensée économique en suggérant que la formulation des anticipations et, par conséquent, la détermination des taux d’intérêt, est influencée non seulement par les taux d’inflation antérieurs mais aussi par une multitude d’autres variables telles que les variations de la masse monétaire ou de l’activité économique. En outre, il est probable que les variables qui influencent les taux d’inflation attendus seront elles-mêmes influencées par ces anticipations. Par conséquent, la méthodologie présentée ici vise à refléter les simultanéités et les schémas dynamiques de feed-back qui caractérisent les données macroéconomiques, tout en tenant compte du fait que les agents économiques fondent leurs anticipations inflationnistes sur des données autres que les taux d’inflation antérieurs. Les anticipations subjectives des agents économiques en matière d’inflation sont remplacées par des prévisions du taux d’inflation qui sont optimales en ce sens qu’elles minimisent la variance des erreurs de prévision dépendant des renseignements dont disposent les agents. On utilise ensuite ces prévisions pour calculer les séries de taux d’intérêt réels ex ante pour chaque pays et tester plusieurs hypothèses relatives aux taux d’intérêt.

Les résultats empiriques de l’étude indiquent qu’à deux reprises durant la période 1968–82, les taux d’intérêt réels ont enregistré de fortes variations. Ces variations ont eu une incidence considérable au niveau macroéconomique, en particulier sur le plan de l’inflation. D’après l’étude, l’incidence expansionniste des taux d’intérêt réels négatifs après le premier choc pétrolier s’est traduite par une intensification du processus inflationniste, tandis que l’apparition de taux d’intérêt réels positifs après le deuxième choc pétrolier a contribué à maîtriser rapidement l’inflation.

D’autres résultats donnent à penser que des variations systématiques, et donc prévisibles, de la masse monétaire qui entraînent des changements systématiques dans l’évolution de l’inflation n’ont pas d’effet sur les taux d’intérêt réels et corroborent ainsi une variante de l’hypothèse de Fisher. Par conséquent, il est soutenu qu’un assouplissement de la politique monétaire ne fera pas nécessairement baisser les taux d’intérêt réels, en particulier dans le moyen et long terme, si cet assouplissement entraîne une révision en hausse des taux d’inflation attendus.

Les Statuts du Fonds et les tribunaux — XIX —joseph gold (pages 179–234)

Dans le présent article, qui fait partie de la série consacrée au rôle joué par le droit du Fonds monétaire international en cas de litiges, l’auteur analyse des décisions rendues par des tribunaux en Grande-Bretagne, aux Etats-Unis, aux Pays-Bas et en Italie ainsi que des décisions de la Cour de Justice des Communautés européennes et d’un tribunal arbitral. Certaines des questions soulevées dans le cadre de ces décisions, à propos des statuts du Fonds, sont énumérées ci-après.

1) Que signifie l’expression “contrats de change” qui figure dans l’article VIII, section 2 b) des Statuts?

2) Quel rapport existe-t-il entre l’article VIII, section 2 b) et le droit international privé du for?

3) A qui incombe-t-il de prouver que les conditions d’application de l’article VIII, section 2 b) sont réunies ou non et, si le tribunal lui-même soulève la question de l’application de l’article VIII, section 2 b), quelles en sont les conséquences pour la répartition de la charge de la preuve entre les parties?

4) Quelle est la monnaie “mise en jeu” selon l’article VIII, section 2 b)l

5) L’article VIII, section 2 b) peut-il s’appliquer à un contrat de change si les réglementations du contrôle des changes en question ont été adoptées après la conclusion du contrat?

6) Les parties à un contrat de change devraient-elles être autorisées à priver d’effets les réglementations du contrôle des changes?

7) L’article VIII, section 2 b) s’applique-t-il aux réglementations du contrôle des changes si ces dernières font partie intégrantes de la loi du for?

8) Si un paiement est effectué dans le cadre d’un contrat de change qui n’est pas exécutoire en vertu de l’article VIII, section 2 b), le montant versé peut-il être recouvré parce qu’il constitue un enrichissement sans cause du bénéficiaire?

9) L’une des parties en présence devrait-elle se voir accorder des dommages et intérêts si l’autre partie s’est engagée à solliciter ou obtenir une autorisation de change mais a fait défaut à cet engagement?

10) Si un tribunal décide que l’article VIII, section 2 b) ne s’applique pas et a statué en faveur d’un demandeur en dépit des réglementations du contrôle des changes qui font partie intégrantes du droit d’un autre pays membre du Fonds, le jugement rendu recevra-t-il exequatur d’un tribunal de ce dernier?

11) Quel rapport existe-t-il entre les dispositions des Statuts et celles du Traité de Rome qui concernent les mouvements de capitaux?

12) Les anciennes parités des monnaies peuvent-elles toujours être prises en considération dans le cadre des questions sur lesquelles doivent statuer les tribunaux?

RESUMENES

Los desequilibrios en cuenta corriente y la formación de capital en los países industriales, 1949–81—alessandro penati y michael dooley (páginas 1–124)

En este estudio se examina la función del ahorro interno y externo en el financiamiento de la formación de capital en 19 países industriales durante los años posteriores a la segunda guerra mundial. Los autores consideran, dada su interpretación de los datos estadísticos, que resulta muy difícil sostener que, a medio plazo, los bienes y servicios liberados por el ahorro de un país industrial quedan sistemáticamente a disposición de otros países industriales mediante los desequilibrios en cuenta corriente, para financiar sus inversiones en capital físico. Por el contrario, hay fuertes razones para pensar que tanto los niveles como las variaciones del ahorro interno se ven sistemáticamente igualados por los niveles y variaciones de la inversión interna. La estrecha relación entre ahorro interno e inversión interna durante el período estudiado indica que los recursos no pasaron de un país a otro para que se equipararan las tasas de rentabilidad del capital real.

El estudio tampoco encuentra sostenible la proposición de que la integración de los mercados de capital financiero durante estos últimos años ha alterado las relaciones entre ahorro interno, inversión y desequilibrios en cuenta corriente en los países industriales. Los datos obtenidos hacen pensar más bien que las variaciones del volumen de activos exteriores netos, y los desequilibrios en cuenta corriente relacionados con ellas, no fueron más sensibles a las diferencias entre países en las tasas de rentabilidad del capital físico durante el decenio finalizado en 1981 que durante el decenio de 1950, cuando la generalización de los controles de capital y las restricciones comerciales obstaculizaron la integración económica de los países industriales.

El DEG privado: Evaluación de su riesgo y rendimiento—pierre van den boogaerde (páginas 25–61)

En el presente trabajo se analiza, desde el punto de vista del rendimiento y el riesgo totales, el grado de atracción que podría haber despertado la inversión denominada en DEG durante el período 1977–82. Para ello se han simulado inversiones utilizando en forma secuencial cada una de las monedas componentes y el propio DEG como monedas de base y se ha supuesto la inversión alternativamente, en la moneda nacional de base, en las otras cuatro monedas componentes y en DEG. El punto de partida es que, si los coeficientes de correlación entre el rendimiento de las diferentes monedas que componen la cesta del DEG son menores que la unidad, la desviación típica del DEG será menor que la media ponderada de las distintas desviaciones típicas. Los resultados confirman plenamente las expectativas: La desviación típica del rendimiento total de la inversión en DEG es menor que las desviaciones típicas del rendimiento de la inversión en cada una de las monedas que lo componen, cualquiera que sea la moneda que se utilice como unidad de cuenta, con excepción de una relación paritaria entre el marco alemán y el franco francés, debido a la inclusión de ambas monedas en el Sistema Monetario Europeo (SME). El estudio demuestra también que una evaluación de la volatilidad del DEG y de las monedas que lo componen, medida por el coeficiente beta, no permite determinar con precisión el riesgo de las monedas distintas del dólar debido a la correlación relativamente baja entre esas monedas y el DEG durante el período del estudio. Por último, e independientemente de la moneda que se utilice como unidad de cuenta, el DEG acusó un rendimiento total superior al promedio durante el período analizado.

De manera que en el período estudiado, que comprende un período de debilidad y otro de firmeza del dólar, la inversión en DEG produjo un rendimiento superior a los promedios y fue mucho menos arriegada que la inversión en cualesquiera de las monedas que lo componen. En consecuencia, la idea de utilizar el DEG como unidad de cuenta podría resultar atractiva para muchos de quienes operan en el mercado internacional.

Una prueba de la eficacia de los ajustes del tipo de cambio en Indonesia—g. russell kincaid (páginas 62–92)

En este trabajo se analiza el efecto de los precios relativos en la balanza comercial no petrolera de Indonesia, haciendo hincapié en la eficacia del ajuste del tipo de cambio efectuado en noviembre de 1978. Un ajuste cambiarlo puede reencauzar los recursos hacia actividades de exportación y competitivas con la importación, únicamente si la relación costo/precio más favorable establecida a raíz de la devaluación no se vuelve desfavorable posteriormente con el aumento de los precios internos. En el primer año transcurrido desde la devaluación, gracias a la política fiscal y monetaria restrictiva aplicada, Indonesia consiguió mantener la mejora de los precios relativos originada por la devaluación. Como consecuencia de ello se aceleró en forma notable el volumen de exportaciones no petroleras y se redujo marcadamente el aumento de la importación. Con los recursos externos adicionales que le reportó al país la segunda serie de aumentos de precios del petróleo en 1979–80, el gasto interno superó a la capacidad productiva interna. Los precios relativos de los productos nacionales respecto de los productos extranjeros, en moneda nacional, volvieron al nivel que tenían antes de la devaluación; el aumento del volumen de la exportación de productos no petroleros prácticamente se detuvo y el volumen de importación se incrementó rápidamente. Esta experiencia demuestra la importancia que tienen las políticas fiscal y monetaria en respaldo de las medidas cambiarías.

A fin de identificar el efecto de los diversos factores en la balanza comercial no petrolera se estimaron mediante un modelo econométrico las funciones de la demanda de importaciones y de la oferta de exportaciones. Se observó que la demanda de importaciones está relacionada directamente con el ingreso real y con el exceso de oferta monetaria e inversamente con los precios relativos. La reacción de la oferta de exportaciones fue positiva con respecto a los precios relativos y a la variable de la capacidad productiva interna. En ambas ecuadones, las elasticidades a largo plazo fueron mayores que las elasticidades a corto plazo; las elasticidades a largo plazo de la oferta de exportaciones fueron mucho mayores que las elasticidades a corto plazo. Las ecuaciones estimadas se emplearon para simular el efecto de distintas hipótesis relativas al tipo de cambio en la balanza comercial no petrolera. Los resultados de estas simulaciones, que deben interpretarse con la debida cautela, indican que el déficit comercial no petrolero se redujo considerablemente con el ajuste del tipo de cambio de noviembre de 1978.

La recesión de 1981–82 y los precios de los productos básicos excluido el petróleo—ke-young chu y thomas k. morrison (páginas 93–140)

En este trabajo se analizan las causas fundamentales de las fluctuaciones de los precios de los productos básicos excluido el petróleo. El estudio se centra en la notable disminución de los precios de estos productos en 1981–82, pero examina el fenómeno a la luz de los puntos más destacados de la evolución de los mercados de productos básicos en la posguerra. Mediante un modelo econométrico se confirma que, de 1957 a 1982, los precios de los productos básicos —en dólares— estaban relacionados directamente con la actividad económica en los países industriales y con la inflación mundial, e inversamente con la apreciación del tipo de cambio del dólar frente a las demás monedas principales, y con las perturbaciones de la oferta. Hay datos que también hacen pensar que los precios de los productos básicos están inversamente relacionados con las fluctuaciones del tipo de interés real.

En el estudio se demuestra que la disminución acumulativa de 25 por ciento registrada por los precios de los productos básicos (en dólares nominales) en 1981–82 es la más grande y prolongada en más de tres décadas. Los precios de los productos básicos, deflactados según el índice de precios de los bienes manufacturados, disminuyeron en un 20 por ciento en 1981–82, al nivel más bajo de la posguerra. Se explica que la notable disminución de los precios de los productos básicos en 1981–82 es secuela de la mayor inestabilidad que vienen presentando desde los primeros años de la década del setenta. Durante 1972–82, la inestabilidad de los precios de los productos básicos fue tres veces mayor que durante 1957–71 y, las fluctuaciones de la actividad económica, la inflación, los tipos de cambio y los tipos de interés fueron también más pronunciadas.

Los precios de los productos básicos parecen haber sido mucho más sensibles a la actividad económica en la última década que durante los 15 años anteriores. Si bien las fluctuaciones de la actividad económica contribuyeron a la disminución de los precios tanto en 1975 como en 1981–82, se observa que esta última disminución se debió relativamente más a fluctuaciones del tipo de cambio (y posiblemente del tipo de interés) y relativamente menos a las fluctuaciones de la actividad económica, que la disminución registrada en 1975.

Las expectativas inflacionarias y la determinación del tipo de interés—rü§dü saracoglu (páginas 141–78)

Durante estos últimos años se ha mantenido una extensa polémica sobre las causas básicas del alto nivel y de la variabilidad de los tipos de interés. En este artículo se estudia la determinación de los tipos de interés en cinco países industriales (Estados Unidos, Francia, Japón, Reino Unido y República Federal de Alemania), prestando especial atención a las funciones desempeñadas por los factores monetarios y las expectativas sobre la inflación.

La discusión teórica se centra en la hipótesis de Fisher de que los tipos de interés están relacionados con las tasas previstas de inflación. Se afirma que la investigación precedente de esta cuestión en gran parte es deficiente, ya que se basa en un análisis microeconómico de equilibrio parcial y supone un mecanismo no plausible de formación de expectativas. Por el contrario, en este estudio se recogen los últimos aportes de la teoría económica y se sugiere que la formulación de expectativas—y por tanto la determinación de los tipos de interés —está influida no sólo por las tasas anteriores de inflación sino también por muchas otras variables, tales como las variaciones de la oferta monetaria o de la actividad económica. Además, es probable que las propias variables que influyen en las tasas previstas de inflación sean influidas a su vez por estas expectativas. En consecuencia, la metodología desarrollada en este estudio trata de reflejar las simultaneidades y las pautas dinámicas de retroalimentación que caracterizan los datos macroeconómicos, procurando al mismo tiempo explicar que la formación de las expectativas inflacionarias de participantes en el mercado no se basa exclusivamente en las tasas anteriores de inflación, sino también en otros datos. Las expectativas subjetivas de inflación de los participantes en el mercado se aproximan mediante previsiones de inflación que son óptimas en el sentido de que minimizan la varianza de los errores de previsión condicional a la información de que disponen los participantes en el mercado. Estas previsiones se usan luego para construir la serie ex ante de tipos reales de interés de cada país y para verificar diversas hipótesis sobre los tipos de interés.

Los resultados empíricos del estudio indican que en dos diferentes ocasiones durante el período 1968–82 los tipos reales de interés experimentaron variaciones importantes. Estas variaciones tuvieron un efecto macroeconómico considerable, especialmente con respecto a la inflación. Se sostiene que el efecto expansivo de los tipos reales de interés negativos posteriores a la primera crisis del petróleo llevaron a la intensificación del proceso inflacionario, mientras que la aparición de tipos reales de interés positivos después de la segunda crisis del petróleo ayudó a controlar rápidamente la inflación.

Otros resultados indican que las variaciones sistemáticas, y por tanto previsibles, de la oferta monetaria que conducen a cambios sistemáticos en la trayectoria cronológica de la inflación no afectan a los tipos reales de interés, lo que confirma una variante de la hipótesis de Fisher. Por consiguiente, se sostiene que no cabe esperar que una política monetaria más expansiva invariablemente redunde en la reducción de los tipos reales de interés, en especial a medio y a largo plazo, si esa mayor expansión hace que se revise al alza la tasa prevista de inflación.

El Convenio Constitutivo del Fondo ante los tribunales—XIX—joseph gold (páginas 179–234)

En la presente entrega de la serie de artículos sobre los efectos de las normas jurídicas del Fondo Monetario Internacional en los litigios, se examinan fallos emitidos por tribunales de Inglaterra, Estados Unidos, Países Bajos e Italia, así como fallos de la Corte de Justicia de las Comunidades europeas y de un tribunal arbitral. A continuación se presentan algunas de las cuestiones vinculadas al Convenio Constitutivo del Fondo que se han planteado en esos casos:

1) ¿Cuál es el significado de “contratos de cambio” en la Sección 2 b) del Artículo VIII del Convenio?

2) ¿Cuál es la relación entre la Sección 2 b) del Artículo VIII y el derecho internacional privado del foro?

3) ¿Quién tiene que probar si se han cumplido o no las condiciones de la Sección 2 b) del Artículo VIII y qué efecto tiene, en la asignación de la carga de la prueba entre las partes, el hecho de que el propio tribunal decida discutir la aplicación de la Sección 2 b) del Artículo VIII?

4) ¿Cuál es la moneda “implicada” en la Sección 2 b) del Artículo VIII?

5) ¿Se aplica la Sección 2 b) del Artículo VIII a un contrato de cambio si las disposiciones de control de cambios se adoptaron con posterioridad a su celebración?

6) ¿Debe permitirse que las partes en un contrato de cambio acuerden dejar sin efecto las disposiciones de control de cambios?

7) ¿Se aplica la Sección 2 b) del Artículo VIII a las disposiciones de control de cambios si éstas son parte del derecho del foro?

8) Si de conformidad con un contrato de cambio se hace efectivo un pago que no es exigible según la Sección 2 b) del Artículo VIII, ¿se puede demandar por enriquecimiento sin causa a quien recibió el pago?

9) ¿Debe adjudicársele daños y perjuicios a una parte si la otra se comprometió a solicitar u obtener una licencia de cambio y no cumplió con dicho compromiso?

10) Si un tribunal rechaza la aplicación de la Sección 2 b) del Artículo VIII y falla en favor del demandante a pesar de las disposiciones de control de cambios que forman parte de la legislación de otro país miembro del Fondo ¿reconocerá y cumplirá el fallo el tribunal de ese otro país?

11) ¿Cuál es la relación entre las disposiciones del Convenio y las disposiciones del Tratado de Roma sobre movimientos de capital?

12) ¿Sigue siendo pertinente la antigua paridad en asuntos que se someten a la resolución de los tribunales?

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.

International Monetary Fund, Washington, D.C. 20431 U.S.A.

Telephone number: 202 473 7430

Cable address: Interfund

Sir Joseph Gold, Senior Consultant and formerly the General Counsel and Director of the Legal Department of the International Monetary 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.

[1979] 2 Lloyd’s Rep. 498.

[1982] Q.B. 208; [1981] 3 W.L.R. 242; 3 All E.R. 142.

(Washington: International Monetary Fund, 1982), pp. 299–303, 332–53. (The book is cited hereinafter as Gold, Volume II.)

[1982] 2 W.L.R. 1039; [1982] 2 All E.R. 720.

[1976] 1 All E.R. 817; [1976] 1 Q.B. 683; [1976] 1 Q.B. 703.(C.A.); Gold, Volume II, pp. 202–18.

Gold, Volume II, p. 350.

[1982] 2 W.L.R., p. 1050; [1982] 2 All E.R., p. 729.

Ibid.

Court of Appeal (Civil Division) Transcript No. 197B of 1977, C.A.; The Times (London), May 3, 1977, p. 11; Halsbury’s Laws of England: Annual Abridgment, 1977 (London: Butterworth, 1978), p. 453, paragraph 906; Gold, Volume II, pp. 258–65.

[1982] 2 W.L.R., p. 1050; [1982] 2 All E.R., p. 729 (per Lord Diplock).

On the duty of the court, see Gold, Volume II, pp. 118–19, 114–45; on enforceability, see Joseph Gold, The Fund Agreement in the Courts (Washington: International Monetary Fund, 1962) (hereinafter cited as Gold, Volume I), pp. 60–66, 77–78, 148; Gold, Volume II, pp. 140, 152.

[1982] 2 W.L.R., p. 1051; [1982] 2 All E.R., p. 730 (per Lord Diplock, in whose opinion all members of the House of Lords concurred).

The same principle would apply to the obligation of the issuing bank to the buyer.

See Gold, Volume II, pp. 337–40, 348–53.

On running together related contractual arrangements, the case should be compared with Southwestern Shipping Corporation v. National City Bank of New York, 173 N.Y.S. 2d 509 (1958), 178 N.Y.S. 2d 1019 (1958), 190 N.Y.S. 2d 352 (1959), 80 S. Ct. 198,361 U.S. 895 (1959), Gold, Volume I, pp. 97–100,102–108, and with Sharif v. Azad [1967] 1 Q.B. 605, [1966] 3 W.L.R. 1285, [1966] 3 All E.R. 785, C.A., Gold, Volume II, pp. 107–16, 158–59 (fn. 48), 266–67.

The decision has provoked much comment on both aspects of the case. See, for example, C.C. Hodgekiss, “Commercial Law Note,” Australian Law Journal (Sydney), Vol. 56 (November 1982), pp. 606–608; J.G. Collier, Case Note, Cambridge Law Journal, Vol. 42 (April 1983), pp. 49–51; Michael Goldsmith, Droit etpratique du commerce international/International Trade Law and Practice (Paris), Vol. 9 (1983), pp. 184–86; Anthony Walker, “American Accord—Third party fraud and letters of credit,” International Financial Law Review (London), July 1982, pp. 4–6; Stuart Isaacs, “American Accord—English courts and exchange contracts,” id., pp. 7–10; Clive M. Schmitthoff, Case Note, Journal of Business Law (London), July 1982, pp. 319–21; F.A. Mann, “Documentary Credits and Bretton Woods,” Law Quarterly Review (London), Vol. 98 (1982), pp. 526–32; Guy W. Lewin, “Irrevocable Letters of Credit and Third Party Fraud: The American Accord,” Virginia Journal of International Law (Charlottesville), Vol. 24 (1983), pp. 55–96; David R. Stack, “The Conflicts of Law in International Letters of Credit,” id., pp. 171–200.

Gold, Volume I, p. 108. The “exchange contract” was not solely the result of the scheme to evade Peru’s exchange control regulations, because all the other relationships, including Royal’s contractual obligation, were treated by the House of Lords as part of the “exchange contract.”

Selected Decisions of the International Monetary Fund and Selected Documents, 10th Issue (Washington, April 30, 1983)(hereinafter cited as Selected Decisions), pp. 233–34.

Unreported, but noted in European Law Letter (August 1980), pp. 7–8.

Banco do Brasil, S.A. v. A.C. Israel Commodity Co. Inc., 216 N.Y.S. 2d 669 (1961), 2 N.Y. 2d 371,190 N.E. 2d 235,239 N.Y.S. 2d 872 (1963), 376 U.S. 906, 84 S. Ct. 657 (1964). Gold, Volume I, pp. 135–39; Volume II, pp. 22–27, 197–202.

Selected Decisions, p. 234.

The lower court in Weston Banking Corporation v. Turkiye Garanti Bankasi A.S., 446 N.Y. 2d 67, p. 69, took a different view.

See La Semaine Juridique (Paris), Vol. 57, No. 39 (September 28,1983), case 20045 (Société civile immobilière ‘Les Jardins de Grimaua’ and another v. Société d’Etudes Juridique Fiscales et Financières).

Libra Bank Limited, Libra International Bank, S.A., Banco de la Provincia de Buenos Aires, Banco Espirito Santo e Comercial de Lisboa, Banco de Vizcaya, S.A., Banque Internationale a Luxembourg, S.A., Banque Rothschild, and the National Bank of Washington v. Banco Nacional de Costa Rica, S.A., 570 F. Supp. 870, 896 (U.S. Dist. Ct., S.D.N.Y., July 6 and August 12, 1983).

Id., 570 F. Supp. 870 (U.S. Dist. Ct., S.D.N.Y., July 6,1983); See David R. Lindskog, “Act of state or act of desperation,” International Financial Law Review (London), December 1983, pp. 4–8.

See footnote 20.

The court in the Libra Bank case (see footnote 24) relied on some of the Cuban insurance cases (Gold, Volume II, pp. 43–94). In the cases in which the courts refused to recognize the relevance of Cuba’s exchange controls, payments by the defendants to the plaintiffs would not have affected Cuba’s balance of payments because of changes in circumstances between the dates of the contracts of insurance and the dates of judicial proceedings in courts in the United States.

“The court declines to depart from the interpretation of exchange contracts consistently propounded by the courts that have directly addressed the issue. The court holds that a contract to borrow United States currency, which requires repayment in United States currency, and which designates New York as the situs of repayment, is not an exchange contract within the meaning of Article VIII, section 2(b). The Bretton Woods Agreement is therefore inapplicable to this case.” (570 F. Supp. 900)

See footnote 27.

See, for example, Article XI.

For a discussion of the necessity for the immediate effect of exchange controls on existing executory contracts, see Jean-Paul Chaumeton, La Semaine Juridique (Paris), Vol. 56 (October 6,1982), in commenting on 19856, a case in which Article VIII, Section 2(b) was not involved.

F.A. Mann, The Legal Aspect of Money, 4th ed. (Oxford: Clarendon Press, 1982) (hereinafter cited as Mann, Legal Aspect), pp. 377, 379.

Sharif v. Azad [1966] 3 W.L.R. 1285; Federal Supreme Court of Federal Republic of Germany, Decision of April 12,1970, Neue Juristische Wochenschrift (Munich), Vol. 23 (August 20, 1970), pp. 1507–1508 (Gold, Volume II, p. 144). See also Gold, Volume I, pp. 60–66.

United City Merchants (Investments) Ltd. et al. v. Royal Bank of Canada et al. [1982] 2 W.L.R. 1039; [1982] 2 All E.R. 720.

Gold, Volume II, pp. 334, 358.

All acts are presumed to have been done rightly and properly.

[1976] 1 Q.B., p. 696; Gold, Volume II, p. 205.

456 N.Y.S. 2d 684.

See Joseph Gold, SDRs, Currencies, and Gold: Fourth Survey of New Legal Developments, IMF Pamphlet Series, No. 33 (Washington: International Monetary Fund, 1980), p. 68.

86 A.D. 2d 511, 446 N.Y.S. 2d 67.

For a case involving exchange control regulations (of Cuba) in which the New York Court of Appeals held that the doctrine of the Act of State applied, see French v. Banco Nacional de Cuba, 295 N.Y.S. 2d 433, 23 N.Y. 2d 46 (1968) (discussed in Gold, Volume II, pp. 131–39).

J. Zeevi and Sons, Ltd. et al. v. Grindlay’s Bank (Uganda) Limited, 37 N.Y. 2d 220, 371 N.Y.S. 2d 892, 333 N.E. 2d 168, cert. den. 423 U.S. 866, 96 S. Ct. 126. On the issue involving the Articles in that case, see Gold, Volume II, pp. 219–21.

456 N.Y.S. 2d, p. 688.

The court did not consider whether the claim was for the purpose of transferring capital or for payment in respect of a current transaction. Article XXX(d) includes within the definition of payments for current transactions “(2) payments due as interest on loans…” and “(3) payments of moderate amount for amortization of loans…” The claim was for repayment of the full debt. The difference between an apparent capital transfer and a possible payment for a current transaction may have affected the outcome in the two awards of the arbitral tribunal that are discussed later in this article.

456 N.Y.S. 2d, p. 689.

Ibid.

Bernard S. Meyer, “Recognition of Exchange Controls After the International Monetary Agreement, Yale Law Journal (New Haven), Vol. 62 (May 1953), pp. 867–910.

For the view that the defense of Article VIII, Section 2(b) takes precedence over the defense of the Act of State, see John Williams, “Act of State and Transnational Monetary Obligations,” International Practitioner’s Notebook (New York), No. 24 (1983), pp. 2–4.

Judge Meyer drew attention also to Article XIV, Section 4, under which the Fund can make representations to a member that it should withdraw restrictions and can compel withdrawal if the member persists in maintaining the restrictions. An issue of interpretation arises in connection with withdrawal. The reference should be to Article XIV, Section 3 of the present Articles. That provision refers to “Article XXVI, Section 2(a)” and not to “Article XXVI, Section 2.” Section 2(a) provides for ineligibility to use the Fund’s resources. The issue is whether ineligibility under Section 2(a) can lead in all cases to action by the Fund under Section 2(b), which provides for compulsory withdrawal from membership in the Fund.

Selected Decisions, p. 234.

Joseph Gold, Legal and Institutional Aspects of the International Monetary System: Selected Essays (Washington: International Monetary Fund, 1979), pp. 148–216.

Gold, Volume II, pp. 116–20. The Regional Court of Hamburg, Division 12 for Commercial Matters, approached the Fund in October 1979, through the Embassy of the Federal Republic of Germany in Washington, D.C., with a request for advice on whether certain exchange control regulations of Ethiopia in issue in Domex S.A. v. Schluter & Maack were consistent with the Articles.

Gold, Volume II, p. 261.

Gold, Volume II, pp. 144, 259–60. See also United City Merchants (Investments) Ltd. et al. v. Royal Bank of Canada et al. [1982] 2 W.L.R., p. 1050; [1982] 2 All E.R., p. 729.

456 N.Y.S. 2d, p. 692.

See footnote 42.

See footnote 20.

456 N.Y.S. 2d, p. 693.

Robert E. Bostrom, “Enforcement of Foreign Exchange Regulations,” International Practitioner’s Notebook (New York), No. 22 (1983), pp. 6–8, at p. 8.

Gold, Volume I, pp. 62–66, 77–78; Volume II, pp. 16–17, 88, 140–43, 150–53,160, 262,276–77, 298, 355. Mann, Legal Aspect, has advanced the view that a contract not contrary to exchange control regulations when entered into is not affected by the provision if the contract is contrary to regulations when performance is sought, but that a contract originally unenforceable can later become enforceable if the circumstances have changed (p. 379). The explanation offered is that in the latter case there is no longer “any need or legislative rationale for construing the provision so as to maintain a consequence not required by the law of the member State concerned.” This explanation is unsatisfactory because the member’s concern induces it to control the performance of executory contracts by regulations adopted after the contracts were made. The test of the balance of payments applies to both cases, because the balance of payments is the concern of both the Fund and the legislating member.

Philip R. Wood, “External governing law—either a fortress or a paper-house,” International Financial Law Review (London), July 1982, pp. 11–14, at p. 13. See also the arbitral tribunal’s statement of the argument of counsel as cited in Congimex Companhia Geral de Comercio Importadora e Exportadora, S.A.R.L. v. Tradax Export S.A. [1981] 2 Lloyd’s Rep. 687 (Queen’s Bench Division (Commercial Court), England, June 11, 1981): “Mr. Buckley recognized that by a decision of the Court of Appeal binding on me supervening illegality is only a defence if (1) it arises by the proper law of the contract, or (2) it arises by the law of the place of performance. In the case of exchange contracts, there is a third category by virtue of the Bretton Woods Order in Council. That is not said to be relevant here.”

Case No. 149, Chamber One, Award No. 53–149–1. Iranian Assets Litigation Reporter (Edgemont, Pennsylvania), July 1, 1983 (hereinafter cited as IAL Reporter), p. 6819. For articles on the tribunal, see Robert B. von Mehren, “The Iran-U.S.A. Arbitral Tribunal,” American Journal of Comparative Law (Berkeley, California), Vol. 31 (Fall 1983), pp. 713–30; and David P. Steward and Laura B. Sherman, “Developments at the Iran-United States Claims Tribunal,” Virginia Journal of International Law (Charlottesville), Vol. 24 (Fall 1983), pp. 1–53.

(Washington, 1979). The report contains information on the trade and payments aspects of a member’s restrictive system, as well as on the member’s exchange arrangements. Publication of this information is neutral on the question whether the restrictions on payments and transfers applied by a member are consistent with the Articles.

IAL Reporter, p. 6821.

See footnote 18.

IAL Reporter, p. 6822. The tribunal, in using the phrase “should respect,” may or may not have meant “must respect.” Article VIII, Section 2(b) imposes an obligation on members. Article V of the Claims Settlement Declaration provides that: “The Tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.” See “Article VIII, Section 2(b), Governments, Private Parties, and Arbitration,” Appendix D in Gold, Volume II, pp. 462–64.

The question whether or not this treaty is still in force is the subject of dispute between Iran and the United States. See Congressional Record, daily ed., November 14, 1983, S. 16055–16060; International Law Perspective, Vol. 9 (November 1983), p. 2.

On this principle, the drawee of the checks need not prove the underlying transaction that gave rise to the checks.

Case No. 57, Chamber Two, Award No. 46-57-2. The award was signed by only two of the three members of the tribunal.

La Semaine Juridique (Paris), Vol. 56 (October 6, 1982), Case No. 19856, observations by Jean-Paul Chaumeton, last paragraph and footnote 10.

Revue critique de droit international privé (Paris), Vol. 69 (January-March 1980), p. 68.

Gold, Volume II, pp. 353–58.

H.U. Jessurun d’Oliveira, “Eigen huis is vreemde valuta waard,” Ars Aequi, Vol. 29 (April 1980), pp. 254–62, at pp. 261–62.

He argued also that unenforceability is determined as of the date of entry into a contract, and that an unenforceable contract remains unenforceable notwithstanding subsequent changes in facts. Therefore, the subsequent independence of Surinam, becoming Suriname, should not have affected the outcome of the case. Indeed, he continued, if the countries had to respect each other’s exchange control regulations within the context of the Kingdom, the obligation was strengthened as a result of independence. Neither commentator asks why it was necessary to provide, by means of Article VIII, Section 2(b), that courts shall apply their own exchange control law.

Selected Decisions, pp. 233–34.

Gold, Volume I, pp. 87–94; Volume II, pp. 157–59.

IAL Reporter, p. 6820.

Gold, Volume II, pp. 23, 190–97, 280–81. Toprak Mahsulleri Ofisi v. Finagrain Compagnie Commerciale Agricole et Financiere S.A. [1979] 2 Lloyd’s Rep. 98, decided by the English Court of Appeal, dealt with the question, among other issues, of responsibility for obtaining an exchange license. The exchange control regulations of Turkey were involved in the case, but Article VIII, Section 2(b) was not raised as a defense, no doubt because of the restrictive interpretation of “exchange contracts” by English courts. The case demonstrates that if Article VIII, Section 2(b) does not apply, a contract is not unenforceable under English law because the contract is illegal under the law of a party’s residence unless the contract is governed by that law or is to be performed only in that country.

Mann, Legal Aspect, pp. 397–400.

Batra v. Ebrahim, see footnote 9, and the dictum of Lord Denning quoted by Mann, Legal Aspect, p. 399.

See footnote 34.

Gold, Volume II, pp. 157–58. Note, however, the sweeping statement by the Iran-United States Claims Tribunal in Benjamin R. Isaiah v. Bank Mellat (Case No. 219, Chamber Two, Award No. 35-219-2): “In any event, exchange regulations are not relevant to a claim for unjust enrichment.” Article VIII, Section 2(b) was not mentioned in the case.

Selected Decisions, p. 233.

Different situations, but involving similar strain, are discussed in Gold, Volume II, pp. 267–72, 417–18.

See footnote 5.

Pp. 6–7 of the record (translation). The English rule, as stated by Dicey and Moris in The Conflict of Laws (10th edition, London, 1980), Vol. 2, p. 1086, is as follows: “Rule 188—A foreign judgment (other than a Scottish or Northern Irish judgment extended to England under the Judgments Extension Act, 1868) is impeachable on the ground that its enforcement or, as the case may be, recognition, would be contrary to public policy.” See Israel Discount Bank of New York v. Hadjipateras and another [1983] 3 All E.R. 129 (CA).

A consequence would be that related contracts, such as indemnities, could be deemed lawful.

“Giurisprudenza Italiana,” Rivista di diritto Internationale privato e processuale (1981)(hereinafter cited as Rivista), pp. 107–15.

On July 7, 1981, a few days after the Supreme Court’s decision in the Terruzzi case, the Italian Supreme Court took a decision on exchange control by the special procedure of Sezioni Riunite, the purpose of which is to give a final interpretation of law when conflicting decisions have been rendered by various divisions of the Supreme Court. The decision of July 7, 1981, in a case not involving the export or import of goods, affirms that contracts between residents and nonresidents entered into in violation of Italy’s exchange control laws are null and void. (Francesco de Luca, “Italian exchange controls and non-residents,” International Financial Law Review (London), May 1982, pp. 31–32). A subsequent decision, of July 21, 1981, makes the distinction between contracts for the export and import of goods and other contracts that is made in the Terruzzi case. It seems, however, that a resident who acts in bad faith in entering into a contract without authorization is subject to criminal penalties and may be liable in damages to the other party. Furthermore, the contracts that are null and void according to the decision of July 7,1981 are not contrary to morals, so that a nonresident who has made a payment under the contract is entitled to recover the amount paid. (Mario Romita, “Nullity of Transactions Violating Exchange Control Laws of Italy: Consequences for Non-Residents in Italy and Possible Remedies,” International Practitioner’s Notebook (New York), No. 22 (1983), pp. 2–3).

Rivista, p. 112 (translation).

[1976] 1 Q.B., p. 696 (per Kerr, J., as he then was).

Rivista, loc. cit. (translation).

See footnote 2.

An issue of Community law ruled on by the Supreme Court is not discussed here.

Case 230/80, [1981] E.C.R. 2595; [1982] 1 C.M.L.R. 365. On the Casati case, see J. Kodwo Bentil, “Free Movement of Capital in the Common Market,” New Law Journal (London), Vol. 132 (October 14 and November 11, 1982), pp. 963–65, 1049–50; Michael Petersen, “Capital Movements and Payments under the EEC Treaty after Casati,” European Law Review (London), Vol. 7 (1982), pp. 167–82; Philippe Chappatte, “Free movement of capital in Europe,” International Financial Law Review (London), May 1982, pp. 35–36. See also Martin Seidel, “Escape Clauses in European Community Law,” Common Market Law Review (Leyden), Vol. 15 (1978), pp. 283–308.

“Use of the Funa’s general resources for capital transfers

(a) A member may not use the Fund’s general resources to meet a large or sustained outflow of capital except as provided in Section 2 of this Article, and the Fund may request a member to exercise controls to prevent such use of the general resources of the Fund. If, after receiving such a request, a member fails to exercise appropriate controls, the Fund may declare the member ineligible to use the general resources of the Fund.

(b) Nothing in this Section shall be deemed:

  • (i) to prevent the use of the general resources of the Fund for capital transactions of reasonable amount required for the expansion ot exports of in the ordinary course of trade, banking, or other business; or

  • (ii) to affect capital movements which are met out of a member’s own resources, but members undertake that such capital movements will be in accordance with the purposes of the Fund.”

“Controls of capital transfers

Members may exercise such controls as are necessary to regulate international capital movements, but no member may exercise these controls in a manner which will restrict payments for current transactions or which will unduly delay transfers of funds in settlement of commitments, except as provided in Article VII, Section 3(b) and in Article XIV, Section 2.”

“Compulsory withdrawal

(a) If a member fails to fulfill any of its obligations under this Agreement, the Fund may declare the member ineligible to use the general resources of the Fund. Nothing in this Section shall be deemed to limit the provisions of Article V, Section 5 or Article VI, Section 1.”

The question of interpretation is similar to the one discussed in footnote 46.

For a discussion of the concept, see Regina v. Ernest George Thompson et al. Case 7/78 [1979] 1 C.M.L.R. 47.

Article XXX(d).

Compare also Section 5.3 of the Resolution of the European Council of December 5,1978 on the establishment of the European Monetary System and related matters: “The EMS is and will remain fully compatible with the relevant articles of the IMF Agreement.” See Commission of the European Communities, European Economy (Brussels), No. 3 (July 1979), p. 96.

See Gold, Volume II, pp. 439–57.

In Re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 535 F. Suppl. 833 (1982). (Discussed in Joseph Gold, “The Fund Agreement in the Courts—XVIII: The SDR in the Courts,” Staff Papers, International Monetary Fund (Washington), Vol. 29 (December 1982), pp. 665–67).

Maschinenfabrik Kern, A.G. v. Northwest Airlines Inc., 562 F. Supp. 232 (N.D. 111. 1983); Deere & Co. v. Deutsche Lufthansa A. G., No. 81C 4726 (N.D. 111., December 30, 1982); Electronic Memories & Magnetics Corp. v. The Flying Tiger Line, Inc., Index No. 784512 (Cal. Super. Ct., San Francisco, August 25, 1982).

See the cases cited in footnote 28, p. 22 of the brief dated August 29,1983, of Trans World Airlines in Trans World Airlines, Inc. v. Franklin Mint et al. in the October Term of the Supreme Court of the United States. The judgment in one of the cases Costell v. Iberia, Lineas Aereas de Espana, S.A. (Court of Appeal of Valencia, Spain) is reproduced in translation at pp. BA6-BA12 of the brief.

Case 248/80, [1982] E.C.R. 197.

See J.A. Usher, “Uniform External Protection—EEC Customs Legislation before the Court of Justice,” Common Market Law Review (Leyden), Vol. 19 (1982), pp. 389–412.

Part I, Section I of the Annex to Regulation No. 950/68 of the Council of June 28, 1968 on the Common Customs Tariff (Official Journal, English Special Edition 1968 (I), p. 275).

Regulation No. 2779/78 of November 23, 1978 (Official Journal L 333, p. 5); Regulation No. 2800/78 of November 27, 1978 (Official Journal L 335, p. 1).

That is, a fixed sum expressed in money or in some other accounting unit and applied to weight, size, or number but not value.

The par value was the one established under the Articles on October 27, 1969. The central rate (DM 3.2225) communicated to the Fund on December 21, 1971 was not a par value.

DM 18,386.19 would have been due if the duty of 11 percent had applied.

The court made the strange statement that it was only on April 1,1978 that the Second Amendment entered into force “and it was only in that way that the international monetary system found a new point of reference, namely the new special drawing rights” ([1982] E.C.R., p. 211).

The interpretation advocated would have the effect of reducing, to an extent not justified on economic grounds, specific duties fixed originally at a level giving competing Community products a particular degree of protection, and thus would reduce the desired level of protection.” ([1982] E.C.R., p. 213).

Ibid.

See the argument of the Commission at pp. 203–205.

See Joseph Gold, SDRs, Currencies, and Gold: Fifth Survey of New Legal Developments, IMF Pamphlet Series, No. 36 (Washington: International Monetary Fund, 1981), pp. 71–77, 100–101.

[1982] E.C.R., p. 214. Nevertheless, the EUA was first introduced as early as 1975 for expressing the amounts of aid mentioned in Article 42 of the Lome Convention and for the accounts of the European Investment Bank and the European Coal and Steel Community. It was adopted for use in the Community’s budget in December 1977. The Commission had proposed adoption of the EUA for all purposes of the Community in 1976. The Advocate General, in an opinion of September 16, 1981, concluded that the delay by the Community in adopting the most reasonably practicable solution for attaining the objectives of the Treaty was not justified and that, for this reason, General Rule C.3 should be considered invalid, but this conclusion was not accepted.

Case 567/79A, [1982] E.C.R. 2371.

The market rate on the relevant date was more than 26 lire per Belgian franc.

The text of Article 9 is quoted as it appears in the judgment, but in the statement of facts and issues it is quoted as follows: “Loans covered by this provision shall be expressed in Belgian francs. The payments in respect thereof shall be made in the currency of the country in which the property to be financed is situated, on the basis of the parity ruling at the time of the payment.”

[1982] E.C.R. 2378.

[1982] E.C.R., p. 2389. In Grogan v. Commission, Case 127/80 [1982] E.C.R. 869, the European Court decided that inaction by the Council to rectify exchange rates that no longer bore any relation to economic reality had to be taken into account when considering the applicant’s argument that the legitimate expectations of pensioners had not been protected. Numerous cases came before the court in which the validity and consequences of substituting the EUA for former par values were issues. See Buy I v. Commission (Case 817/79), Adam v. Commission (Case 828/79), Battaglia v. Commission (Case 1253/79), DePascale v. Commission (Case 164/80), Curtis v. European Parliament (Case 167/80), Knoeppel v. Commission (Case 1205/79), Battaglia and Bevilaequa v. Commission (Joined Cases 5 and 18/80); [1982] E.C.R. 245, 269, 297, 909, 931, 2407, 2431, and 2449. See also Airola v. Commission [1981] E.C.R. 2717.

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