The Fund Agreement in the Courts— IV*
- Joseph Gold
- Published Date:
- December 1962
ANUMBER OF CASES involving the Articles of Agreement of the International Monetary Fund have been decided by courts in Belgium, Germany, and the United States since the publication of the last installment of this survey. These new cases are discussed here under two headings: gold transactions and the unenforceability of certain exchange contracts.
In National Bank of Belgium v. Bank of the Belgian Congo and National Committee of the Kivu,1 the First Chamber of the Belgian Court of Cassation dealt with the question of the legal price of gold in circumstances of unusual interest. The case involved the consideration of Article IV, Section 2, of the Fund Agreement, which was incorporated into Belgian law by the Law of December 26, 1945 approving the Final Act of the Bretton Woods Conference2
The prices at which the National Bank of Belgium buys and sells gold are determined by the Bank under the authority of the Order of the Council of Ministère No. 6 of May 1, 1944.3 Article 1 of this Order provides that:
The National Bank of Belgium is authorized to buy and sell foreign currencies at the rates fixed by parity, payments, exchange, or compensation agreements, taking into account the expenses incurred in the purchase and sale of these currencies. Taking into account these rates of exchange, the National Bank of Belgium fixes the prices at which it buys and on occasion sells gold in bars or in coins…. The prices fixed by the National Bank of Belgium are submitted to the approval of the Minister of Finance.4
On September 19, 1949, the National Bank’s buying price was 49,145 francs per kilogram. This was based on the par value of 0.0202765 grams of fine gold per franc established by Belgium on December 18, 1946 under the Fund Agreement, which is equivalent to 49,318.0822 francs per kilogram of gold. On September 18, 1949, the Fund concurred in the devaluation of sterling; and on September 19, the quotation of exchange rates was suspended in Belgium. On September 21, the Fund concurred in a change of the par value of the Belgian franc to 0.0177734 grams of fine gold per franc, which is equivalent to 56,263.7994 francs per kilogram of gold. On September 22, the quotation of exchange rates was resumed in Belgium, and on that day the National Bank, with the approval of the Minister of Finance, fixed a new buying price for gold of 56,065 francs per kilogram.5
The National Committee of the Kivu, an association of miners in the Belgian Congo, was required by law to sell the gold it produced to the Bank of the Belgian Congo. The latter Bank delivered such gold to the National Bank of Belgium and, in accordance with a custom that had been accepted by them, any delivery was regarded as an offer of the sale of the gold to the National Bank at its buying price on the delivery day. The acceptance of the National Bank was established by the statement of account that it then sent to the Bank of the Belgian Congo.
The present case involved two bars of gold weighing 25 kilograms. They were no doubt like all other bars of gold passing between the parties, but they happened to be delivered to the National Bank on September 20, 1949. The National Bank’s statement of account, sent to the Bank of the Belgian Congo on the same day, was based on the price of 49,145 francs per kilogram.
The Bank of the Belgian Congo and the National Committee of the Kivu, relying on a number of legal provisions including the Order of May 1, 1944 and Article IV, Section 2, of the Fund Agreement, argued that the delivery on September 20 had not resulted in a contract of sale because of the absence of a price. It had not been possible to establish a price because of the suspension of the quotation of exchange rates. This argument succeeded in the Brussels Court of Appeal, but the judgment of that tribunal was reversed by the Court of Cassation.
The Court of Cassation held that there had been an official buying price for gold on September 20. A price established under the Order of May 1,1944 remained applicable so long as a new one was not substituted for it. Article I of the Order provided that in fixing the price of gold the National Bank must take into account exchange rates for currencies as governed by international agreements. However, the drafters of the Order were only outlining the general principle on which the National Bank was to proceed in fixing the price of gold. They did not intend to establish so direct and necessary a relation between the price of gold and exchange rates that in the absence of the latter the former would cease to exist.
The Court then went on to consider whether Article IV, Section 2, of the Fund Agreement established this direct and necessary relationship:
Gold purchases based on par values.—The Fund shall prescribe a margin above and below par value for transactions in gold by members, and no member shall buy gold at a price above par value plus the prescribed margin, or sell gold at a price below par value minus the prescribed margin.6
The Court concluded that the provision did not have this effect. What it did was to “impose only an upper limit for the buying price of gold; and such price, which can be fixed freely as long as it does not exceed the maximum prescribed, is not necessarily pegged to the par of currencies.”7
The Court of Cassation was able to reach the conclusion that Article IV, Section 2, does not establish a necessary tie between the price of gold and the par values for currencies by concentrating solely on the position of the buyer of gold. It is true that under the provision a member may not buy gold at a premium or sell it at a discount in terms of the par values of currencies, which suggests that it may sell at a premium or buy at a discount. If a member could always purchase at a discount, it would then be true that the prohibition of purchase at a premium means, as the Court of Cassation said, that the provision prescribes only a maximum price in terms of par values but otherwise creates no tie to them. However, a very different picture emerges if the position of the seller of gold is also taken into account. If both seller and buyer are Fund members and therefore subject to Article IV, Section 2, it will not be possible to depart from par values, save for the permitted margins, in gold transactions to which they are both parties. For although the buying member may buy at a discount, the selling member will not be able to sell to the buyer at such a price; and although the selling member may sell at a premium, the buying member will not be able to buy from the seller at that price. Therefore, in transactions between parties to whom Article IV, Section 2, applies, the price of gold is intimately tied to par values. The rationale of the provision then becomes apparent. It is to prevent the undermining of par values for currencies by those gold transactions at nonparity prices that would be most likely to have that effect, i.e., gold transactions between members, and particularly the monetary authorities of members.8
It is submitted with respect that the Court of Cassation’s formulation of the effect of Article IV, Section 2, was too general a proposition and that it was, therefore, a dubious basis for decision. In describing the effect of the provision, the Court appears to have been thinking of all transactions covered by it and not simply the transaction in issue. It would be interesting to speculate whether even in that transaction the parties were free to establish a price unrelated to the par value for the Belgian franc. The question arises because the buyer, the National Bank, is the central bank of Belgium; and in 1949 the seller, the Bank of the Belgian Congo, performed certain central banking functions in the Belgian Congo, a territory in respect of which Belgium has accepted the Fund Agreement under Article XX, Section 2(g).9 However, there is no need to proceed with this inquiry, because it would be pertinent only if the parties had departed from the parity price. It will be seen from the rest of this discussion that they had not.
The doubt that has been expressed as to the Court’s treatment of Article IV, Section 2, must not be understood to imply that a different result should have been reached. The line of reasoning adopted by the Court was that the price of gold is not tied to par values because members have a discretion, subject to a maximum, in fixing the buying price. The reasoning suggested here is that under Article IV, Section 2, the price of gold is tied to par values in the transactions that are most likely to have an effect on par values, but that, whether or not there was a legal discretion to depart from the price based on the par value for the Belgian franc in this case, it had not in fact been departed from. It will be recalled that the price at which the transaction was carried out was baaed on the par value for the Belgian franc which had been agreed with the Fund on December 18, 1946 and not changed until after the gold transaction in question. In its Annual Report, 1951, the Fund declared:
A member of the Fund cannot, within the terms of the Articles of Agreement, abandon a par value that has been agreed with the Fund except by coo-currently proposing to the Fund the establishment of a new par value. What a country can do under the circumstances described above is to inform the Fund that it finds itself unable to maintain rates of exchange within the margins of its par value prescribed by the Fund Agreement, and, accordingly, that it is temporarily unable to carry out its obligations under Sections 3 and 4(b) of Article IV.10
This means, of course, that notwithstanding the suspension of exchange rate quotations on September 19, 1949 the par value for the Belgian franc previously agreed with the Fund remained the par value consistent with the Fund Agreement until the new par value was agreed with the Fund on September 21. In short, it was open to the Court to take the same position with respect to Article IV, Section 2, as it had taken with respect to Order No. 6 of May 1, 1944. Under the Fund Agreement, the par value agreed with the Fund was not displaced until a new one was established, just as under Belgian law the buying price for gold fixed under the Order remained the ruling price until a new one was adopted. Therefore, since the price in the September 20 gold transaction was based on the only par value that had been agreed with the Fund, that price was necessarily consistent with Article IV, Section 2.
Unenforceability of Certain Exchange Contracts
There have been five cases since mid-1953 in which courts in the United States, Belgium, and Germany have dealt with Article VIII, Section 2(b), of the Fund Agreement, and there has also been a decision by a U.S. administrative agency. Article VIII, Section 2(b), is the now famous provision in which the first sentence declares that:
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.11
It will be seen from the discussion of these new cases that the courts are now more willing than they were at one time to unravel the complexities of this novel provision.
All three of the U.S. cases were decided in the courts of New York. The first, de Sayve v. de la Valdene,12 decided by the Supreme Court, the court of first instance in New York, has some bearing on the concept of exchange control regulations. In a contract entered into between Frenchmen in France, the defendant undertook to pay a certain sum in U.S. dollars and another sum in sterling. Part of the defendant’s case was baaed on laws reviving the cours forcé in France which had been adopted after the making of the contract. This legislation had been interpreted by the French courts to mean that clauses in domestic contracts for payment in gold or foreign currency, even though entered into before the enactment of cours forcé legislation, are against public policy and cannot be discharged in the manner contracted for. The New York court had to consider whether it was bound to give effect to this aspect of French law. New York courts will not give effect to certain foreign statutes of a public policy character, such as foreign penal or revenue laws, but will now give effect in some circumstances to foreign exchange control laws. The court inclined to the opinion that the cours forcé legislation was an expression of French public policy that it was not required to enforce, but in the circumstances of the case found it unnecessary to decide this point. What is of particular interest for the present purpose is that no effort seems to have been made to place the French cours forcé legislation in the category of foreign exchange control laws. According to the court, “it is here conceded that the French statutes here involved are not ‘exchange control laws’ of the type which the Bretton Woods Agreements now make enforceable. See Perutz v. Bohemian Discount Bank in Liquidation, 304 N.Y. 533, 537,110 N.E. 2d 6, 7.”13
In the second case, In re Sik’s Estate14 decided by the Surrogate’s Court, D filed a claim in the administration of the New York estate of the deceased S. It was based on an agreement made during the German occupation of Yugoslavia, where they were then both resident. Under the contract S promised to pay dollars from his New York account to D at a specified rate of exchange as soon as possible after the war in return for advances of Yugoslav currency which D had made to S. The New York administrator of S’s estate contended that the contract was in violation of the exchange control laws of Yugoslavia and therefore void.15 These exchange control laws had been in force for about a decade before the occupation, and were not substantially changed during or immediately after the end of the occupation. However, expert witnesses disagreed on whether, at the time of the contract, these laws remained operative or had become inoperative although not repealed. The laws provided that for a contract of the kind between D and S the consent of the Yugoslav Minister of Finance was necessary. This consent had not been sought because the lawful authorities were in exile, and it would have been disastrous for the parties to apply to the occupation authorities.
The Surrogate’s Court held that the basic question was the essential validity of the contract, and this was to be determined by the law which the parties intended to have govern their contract, provided that there was a reasonable connection between that law and the contract. In accordance with this test, the court found that New York law applied, and that under this law the contract was valid. However, this was not sufficient for the purpose of reaching a decision and, notwithstanding the conclusion that the validity of the contract was governed by New York law, the court went on to examine the position under Yugoslav law:
It is argued that because the United States and Yugoslavia are members of the International Monetary Fund established by the Bretton Woods Agreement Act, we must recognize and uphold the foreign exchange régulations. See, Perutz v. Bohemian Discount Bank in Liquidation, 304 N.Y. 533, 537, 110N.E. 2d 6, 7. It is a general rule of law that a bargain, the performance of which involves a violation of the law of a friendly nation, is illegal. (Restatement of Contracts, §592; 6 Williston on Contracts, § 1749.) However, the contract made in Yugoslavia would violate the regulations only if it were made without the license from or permission of the Minister of Finance. Even if the regulations were still in effect, it was impossible to make the appropriate application because the authorities were not able to function. Under such circumstances, failure to obtain a license before making the contract does not render the contract unenforceable. Meade v. Lamarcbe, 150 App. Div, 42, 134 N.Y.S. 479. The objectant [D] is no longer a resident of Yugoslavia. The decedent [S] died during the persecution and his estate is under the supervision of this court. It is not necessary now to obtain permission of the foreign government to pay the claim which is valid under our law.16
This passage represents an extension of principle beyond the Perutz case,17 the leading New York case in this field so far, and a closer approach to the application of the principles of the Fund’s authoritative interpretation of Article VIII, Section 2(b).18 According to that interpretation, if the exchange control regulations of a member fall within the provision, they must be recognized by the judicial or administrative authorities of other members, and recognition does not depend on a finding that the member’s law of which the regulations form part is the governing law under the traditional private international law of the forum. Before the Fund Agreement, a court would be likely to proceed as follows in accordance with its traditional private international law. The effect of the exchange control regulations of another country on a contract that had contacts with other countries was a question of the validity of the contract; and it was to be decided by reference to the law regarded by the private international law of the forum as the governing law. This might be the law of the place where the contract was made, or the law of the place where the contract was to be performed, or the law intended by the parties to be applied, or some other system of law. But whatever the rule with respect to the governing law might be, it would be possible to recognize the effect of the exchange control regulations of another country only if the regulations were part of the law selected by the forum as the governing law. In the Perutz case, the technique followed by the New York court was this familiar one of deciding what was the governing law under New York private international law. The court found that the contract was governed by Czechoslovak law, and hence Czechoslovak exchange control regulations were recognized. Nothing was said as to what the position would have been if Czechoslovak law had not been the governing law under the private international law of New York. It is on this point that the Sik case becomes significant. Having found that New York and not Yugoslav law was the governing law, the Surrogate’s Court was nevertheless willing to consider the effect of the Yugoslav regulations on the contract.
It is true that the court did not proceed, in either the Perutz or the Sik case, on the thesis that within its field Article VIII, Section 2(b), has changed certain pre-existing rules of private international law, so that now the inquiry should be, not whether private international law, but whether the provision requires the recognition of exchange control regulations. In both cases, the approach was via private international law, and the inquiry was whether the exchange control regulations were part of the law regarded by the private international law of the forum as the governing law. In the Perutz case the Fund Agreement was then relied on by the court as authority for the proposition that it could not, on the ground of public policy, withhold recognition of regulations forming part of the governing law. In the Sik case, however, the Fund Agreement was the means by which the inquiry was carried beyond the governing law to the law of another Fund member, a member that had exchange control regulations affecting the contract. Although even this broad approach is not yet the approach of the Fund’s interpretation, theoretically at least the results should be the same.19 That is to say, neither approach would result in the enforcement of an exchange contract that was contrary to exchange control regulations maintained or imposed consistently with the Fund Agreement.
The third New York case, Stephen v. Zivnostenska Banka National Corporation,20 decided by the Supreme Court, involved an attempt by the plaintiffs to throw the assets of the defendant bank into receivership under Section 977-b of the New York Civil Practice Act on the premise that the plaintiffs were the creditors of a foreign nationalized institution. Because of the variety and complexity of the issues, the entire matter had been assigned to a referee for examination and report. The court confirmed the referee’s report except on two points, one of which related to the Fund Agreement and was ruled on by the court as follows:
Regarding the second exception, that relating to the plaintiffs’ standing as creditors, as influenced by the International Monetary Fund Agreement, the referee noted the membership of Czechoslovakia in the International Monetary Fund, and considered particularly that portion of Article VIII, section 2(b), of the Fund Agreement:
“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.”
He therefore concluded that the plaintiffs could not obtain relief in this court. Perutz v. Bohemian Discount Bank in Liquidation, 304 N.Y, 533, 110 N.E. 2d. 6.
However, he did state, and with mindful foresight, that this phase could be reopened if Czechoslovakia ever withdrew, voluntarily or otherwise, from the fund organization. Such circumstances actually occurred on January 5, 1955, when the International Monetary Fund issued a release that Czechoslovakia was no longer a member….
No valid reason currently exists to frustrate our public policy, as expressed in the controlling statute, and thereby allow Czechoslovakia to take advantage of one of the privileges of fund membership when it is no longer a member….
Accordingly, the present status of Czechoslovakia in relation to the International Monetary Fund does not bar the plaintiffs in this action.21
The most significant aspect of this case is its relation to a problem which has been discussed in an earlier contribution.22 In that article, disagreement was expressed with the view, advanced by at least one author, that the date as of which it must be determined whether an exchange contract is contrary to exchange control regulations for the purposes of Article VIII, Section 2(b), is the date of the making of the contract and not the date at which performance is due. It was pointed out that one of the anomalies produced by this view would be that members of the Fund would have to continue to treat a contract as unenforceable even though the exchange control regulations that had not been observed at the time of making were those of a country that had ceased to belong to the Fund before performance. This would be a surprising result and difficult to reconcile with the freedom of action that members have retained under Article XI with respect to nonmembers. The case foreseen has now arisen, and it has been decided in way which is consistent with the view that the facts that determine whether an exchange contract is unenforceable under Article VIII, Section 2(b), are those at the date for performance of the contract and not those at the date of its making.
Another notable feature of the Stephen case is that the referee at least seems to have regarded the Perutz case as decided on the basis of Article VIII, Section 2(b). The decision of the Court of Appeals in the Perutz case did not make this clear but referred only in a general way to the effect of membership of the United States and Czechoslovakia in the Fund. Clarification of the basis of the decision in the Perutz case might have a bearing on the question whether the Fund Agreement has produced two rules for the recognition by members of the exchange control regulations of other members, one express and the other implied. The express rule, of course, would be the one laid down in Article VIII, Section 2(b). It would not depend on any finding that the regulations are part of the governing law under private international law, but it would be confined to cases involving exchange contracts. The implied rule would not be based on Article VIII, Section 2(b), or any other specific provision, but would derive from the Fund Agreement as a whole. This rule would apply whenever the law of which the regulations are part is the governing law as determined by private international law, but there would be no good reason for confining it to contracts, whether of the “exchange” or any other variety. It would apply to any situation, such as the distribution of a decedent’s estate, in which the governing law includes exchange control regulations that affect the issue. In these cases, the implied rule would mean that the regulations are no longer refused recognition on the ground of public policy or some similar consideration.
The decision by the Director of the Office of Alien Property of the U.S. Department of Justice on a petition for review In the Matter of Heady Brecher-Wolff23 is relevant to this question. The Attorney General had found that certain shares in a Montana corporation belonged to E, a citizen and resident of Germany, whereupon the shares were vested in the Attorney General under U.S. enemy property legislation. The claimant B, a U.S. citizen, contested this vesting on the ground that the shares had been sold to her by E in February 1941, at which time B too was resident in Germany. In resisting B’s claim, it was argued that the sale was illegal under German exchange control legislation which had been adopted in 1931 and substantially re-enacted in 1932, 1935, 1938, 1946, and later. It was held that, under private international law, the transaction between E and B was governed by German law. B had argued that, notwithstanding this, German exchange control legislation should be ignored because it was confiscatory, penal, and against U.S. public policy. The Director found that:
International recognition of foreign currency control legislation was assured by the adoption of the International Monetary Fund Agreement in which more than SO nations are now participants. By virtue of the Bretton Woods Agreement Act of 1945… the United States became a party and in 1952 West Germany became a member as weil.
The Director also noted that the Fund’s interpretation of the effect of Article VIII, Section 2(b), on public policy had been upheld in the Perutz case. On the argument that the Fund Agreement did not apply because it was not retroactive, he ruled:
It is not necessary to decide this question. It is sufficient to point out that by adherence to the Agreement, the United States bas taken the position that foreign currency controls are not inherently penal or confiscatory and that recognition of such controls is not offensive to public policy.
Thus, there was nothing offensive in exchange control as such, and there was nothing to show that in this case it had been applied in a discriminatory or confiscatory way. Therefore, its effect must be recognized, and B’s claim failed.24
The decision clearly supports the proposition that the Fund Agreement has produced a second principle of recognition by members of the exchange control regulations of other members. The Director did not decide whether Article VIII, Section 2(b), applied, but held nevertheless that because of the Fund Agreement he must recognize the exchange control legislation of the legal system which was the governing law under private international law.
The Belgian case25 was decided by the Commercial Tribunal of Courtrai. The Belgian plaintiffs had granted the Dutch defendants the exclusive right in the Netherlands to exploit an invention, a method for manufacturing cork soles, against payment of three Belgian francs for each pair of soles. In an action by the plaintiffs for breach of this contract, the defendants relied, in part, on the argument that the contract was void under Dutch exchange control regulations because they had not obtained the license required by those regulations. The court held that Belgian law governed the contract. However, the defendants argued that Article VIII, Section 2(b), was part of Belgian law, and that it required recognition of the Dutch regulations. The court was willing to accept this as a general proposition:
Considering that according to one doctrine and line of jurisprudence such a law is political, having a purely local character without effect abroad, and that according to other opinions euch a law is in conflict with the public policy of other countries; that in the majority of cases foreign tribunals have rejected such legislation and have considered it inapplicable;
Considering, however, that a contractual recognition of such legislation as defendants claim was effected by the Belgian ratification of the Bretton Woods Agreements containing the provision of Article VIII, 2(b) constitutes a deviation from this almost general rule, so that contracts infringing these monetary laws which are a part of the public policy lack any legal validity….26
Two aspects of this statement should be noted. First, the court did not appear to be limiting recognition of exchange control legislation under the provision to those cases in which it is part of the governing law under the private international law of the forum. This becomes more apparent when it is remembered that the court found that the governing law was Belgian but that the effect of Dutch exchange control must be considered. The attitude of the Courtrai court thus resembles that of the New York court in the Sik case. Secondly, the effect of the provision is said to deprive the contract of “any legal validity,” a phrase which on its face value would go beyond unenforceability.27
Having shown its willingness to endorse the general principle of law relied on by the defendants, the court then went on to lay down six reasons why it was prevented “from accepting the absolute voidness of the contract.” These were as follows.
(1) Although the particular regulation of the Netherlands relied on by the defendants provided that the contract should be void, other regulations could not be reconciled with this sanction. For example, a party could apply for a license after the conclusion of the contract, and the Netherlands Bank could grant it,
(2) Article VIII, Section 2(b), dealt with “foreign exchange contracts involving the currency of a member,” but there was no general agreement that this category included “a normal international contract involving commodities and payable in money.”
(3) Article VIII, Section 2(b), established a rule with respect to foreign exchange control regulations maintained or imposed consistently with the Fund Agreement, but the defendants had failed to prove that the Fund had confirmed the Netherlands regulation on which the defendants relied.
(4) The Belgian courts considered foreign law as a fact. The defendants; therefore, had to prove that the law they invoked was the latest foreign legislation, but this also they had failed to do,
(5) The purposes of the Fund Agreement were to promote the stability of currencies, the free flow of capital, and international trade. The Dutch decree conflicted with these purposes and was inspired by Dutch self-interest. Thus, the policy on which it rested could have legal validity only after confirmation by the Fund.
(6) Under the Dutch regulation, all international contracts concluded without prior license were void, and the Netherlands Bank, if subsequently requested to grant a license, could decide in its sole discretion whether or not to grant one according to whether the Dutch resident would lose or gain thereby. This was “in violation of international public policy.”
For these reasons, and also because the defendants had filed an application with the Netherlands Bank in terms which would necessarily encourage the Bank to refuse a license for “egoistic motives,” the court held that the defendants’ argument that the contract was void must fail, and appointed an expert to take an accounting.
Some of the reasons relied on by the court involve basic problems of the interpretation of Article VIII, Section 2(b). The first reason suggests that the application of Article VIII, Section 2(b), depended on a finding that an unlicensed contract was void under the Dutch regulations, and that if it was void under those regulations it would then be treated as void under the provision. However, the provision speaks of exchange contracts that are “contrary to” exchange control regulations, and declares that they shall be “unenforceable.” Neither of these two concepts is the equivalent of voidness.
As for the second reason, the language of the provision, “exchange contracts which involve the currency of any member,” is admittedly obscure. However, there is a strong current of opinion in favor of a liberal interpretation which would readily embrace contracts for the sale of goods for money.28
The third and fourth reasons assume that Article VIII, Section 2(b), will not be given effect unless a defendant pleads and proves the exchange control regulations which his contract has failed to observe29 and also the application of the provision to them. This view rests upon the classical principle that foreign law must be proved as a fact. However, it has been doubted that this principle can work satisfactorily when applied to Article VIII, Section 2(b). The provision was intended to protect the interests of Fund members, and this protection, it has been pointed out, should not be frustrated by the accidental or intentional failure of litigants to prove exchange control regulations.30
In its third and fifth reasons the court held it necessary for the defendants to prove that the Fund had confirmed the Dutch regulations on which they relied. It should be noted that Article VIII, Section 2(b), refers to exchange control regulations that are “maintained or imposed consistently with this Agreement.” The main source of postwar exchange control regulations has been Article XIV of the Fund Agreement, under which members are authorized to “maintain and adapt to changing circumstances (and, in the case of members whose territories have been occupied by the enemy, introduce where necessary) restrictions on payments and transfers for current international transactions.” In other words, in this provision, as well as in some other provisions of the Agreement, there is standing authority for members to have certain exchange control regulations without the necessity for members to get confirmation from the Fund of specific regulations within the scope of that authority.
Much more could be written of this interesting case, but discussion here must cease with one last comment. One of the most difficult aspects of Article VIII, Section 2(b), is the interpretation to be given to the words “involve the currency of any member.” There will be further reference to this problem in connection with the German case, but it should be observed now that the question before the Belgian court was the recognition of Dutch exchange control regulations in connection with a contract providing for Belgian franc payments. If the Belgian court had thought that the currency of the Netherlands was not “involved,” would it have omitted this objection to the defendants’ case from the long list of objections that it did set forth?
The German case31 was decided by Chamber 12 for Commercial Affairs of the Hamburg Landgericht. The defendants, who were Belgian residents, entered into an agreement with the plaintiffs, a Hamburg firm, for the purchase from the latter of 500 tons of sulphate of ammonia at 46 U.S. Clearing Dollars per 1,000 kilograms, payment to be made under Belgian-West German Clearing. The defendants failed to obtain an import license from the Belgian authorities, and the plaintiffs brought this action because of the defendants’ failure to take up the goods. There was some question whether the grant of an import license was a condition of the contract, but the court held that it was unconditional. Nevertheless, it decided that the action must fail. The basis for this decision was Article VIII, Section 2(b), with the niceties of which the court showed a notable familiarity.
The recognition of Belgian controls pursuant to the provision was not preceded by any discussion of the governing law under German private international law. There was thus no finding that Belgian controls would be recognized because Belgian law was the governing law.32 The decision can be regarded, therefore, as the clearest application to date of the statement in the Fund’s authoritative interpretation of the relationship between Article VIII, Section 2(b), and private international law. It is true, as already noted, that theoretically there should be no difference in result between immediate consideration of the exchange control regulations that are relevant under the provision and consideration of them at a later stage after what is, under the provision, an unnecessary determination of the governing law under private international law. Whatever the approach, there would be no enforcement of a contract declared unenforceable by the provision. Nevertheless, it is worth noting, without trying to insist on any moral, that in the Sik and Courtrai cases, in which the second approach was used and the governing law was found to be the lex fori, the results did not give effect to the foreign exchange control regulations; whereas in the Hamburg case, in which the first approach was followed, effect was given to them.
Another feature of the Hamburg decision is that there was no discussion of the question whether the category of “exchange contracts” includes contracts for the sale of commodities for money. It will be remembered that this was thought to be an open question by the Courtrai court, but the Hamburg court had no trouble with it at all. On the other hand, the Courtrai court spent no time on the question whether the currency of the Netherlands was “involved” in a contract for payment in Belgian francs, whereas the Hamburg court expressly found that the foreign exchange holdings or the currency of Belgium was involved. This language is important because, taken with the court’s references to Dr. Mann’s views on other aspects of the provision,33 it suggests an acceptance of his view on the currency involved which he has expressed as follows:
Exchange contracts “which involve the currency of any member” are, it is suggested, contracts which affect the currency resources of any member. It follows from what has been said above that it is not so much the denomination in a particular currency that matters, but the prejudicial effect which a transaction may have upon a member State’s financial position and which, by international cooperation, the members have agreed to preclude. Gold, securities of whatever denomination, even land, movables, or intangibles may be the subject of exchange control and their transfer may “involve the currency” of a member. There is no reason why, in a document of this kind, “currency” should not be construed in the broad sense of economics rather than in a strictly legal sense.34
In this case the contract referred to U.S. dollars but provided that payment was to be made under clearing arrangements, i.e., in accordance with the Payments Agreement between the Federal Republic of Germany and the Belgian-Luxembourg Economic Union which had been entered into pursuant to the European Payments Union (EPU) Agreement. This meant that, if exchange control regulations permitted payment, the defendants, although not allowed even then to pay dollars, could elect to pay either Belgian francs or German marks. It is thus arguable that even on the narrow view that has been advanced of the currency involved, namely the currency payable, Belgian currency was involved.35 On the broad view, there can be no doubt that, as the result of the Payments Agreement and the EPU Agreement, Belgian currency was involved and would have been involved even if the contract had provided for payment in nothing but German marks.
The plaintiffs in this case advanced a new interpretation of the currency involved. It was an ingenious variation of the so-called narrow view. The latter, it has been seen, means that if an exchange contract is contrary to Belgian exchange control regulations, Article VIII, Section 2(b), will apply only if the contract calls for payment in Belgian currency. The plaintiffs, however, argued that, because there must be a “foreign exchange contract” from the standpoint of Belgium, the provision will not apply if the currency of payment is Belgian francs. This, they argued, was the situation here, presumably because they believed that the defendants would have paid in Belgian francs.36 The argument did not succeed.
The court also considered the question whether the Belgian regulations that affected the contract were exchange control regulations. It did not appear to be unduly bothered by the fact that the basic regulation was one requiring the defendants to get an import license for goods coming from East Germany, which in itself sounds more like a trade than an exchange control regulation. What the court relied upon, however, was the fact that the refusal of a license was for the purpose of preventing payment under German-Belgian clearing arrangements. The court thus regarded the contract as contrary to the exchange control regulations which established the clearing arrangements.
This led to the next question. Were those regulations maintained in conformity with the Fund Agreement? Article VIII, Section 2(b), it will be remembered, refers to exchange control regulations “maintained or imposed consistently with this Agreement.” The court did not think, as the Courtrai court had, that this meant that an express approval by the Fund of the particular regulations must be demonstrated. On the other hand, it did not attempt to determine which provision of the Agreement authorized the regulations. In its view, the general character of the regulations must be authorized,37 and that this test was satisfied could be inferred from the fact that similar exchange control regulations existed in almost all countries.
After this analysis, the court concluded that the contract was devoid of effect. It took this to be the meaning of “unenforceable” on the ground that the members of the Fund cannot be presumed to have intended the special meaning of a valid but not enforceable contract which the word has in Anglo-American systems of law. The other reason given by the court for its understanding of “unenforceable” is in strong contrast to the opinion of the Courtrai court that litigants must prove the exchange control regulations of other countries. The Hamburg court objected to the “Anglo-American” view of “unenforceable” because this would mean that it would be left to the discretion of the parties to a contract to invoke regulations that existed in the public interest. There is no need to comment at length on this aspect of the provision, because the issue as to the precise meaning of the word did not affect the outcome of the case, and because there has been a fuller discussion elsewhere.38 It is sufficient to point out that there is no reason why the concept of a contract as a valid one which judicial or administrative authorities will not help to enforce must carry with it the proposition that it is left to contracting parties to plead and prove such unenforceability.
One further problem had to be resolved. If a claim for performance of a contract is excluded by Article VIII, Section 2(b), can the court award damages for non-performance? This question has not been considered in the other cases that have dealt with the provision. The Hamburg court held that the claim for damages also must fail. If damages were awarded, even though the merchandise had not been received in Belgium, the foreign exchange position of that country would be even more adversely affected. Moreover, the contrary conclusion would give full latitude to attempts to circumvent the provision. The court’s position was thus consistent with the Fund’s authoritative interpretation, which declares that “& the obligations of such contracts will not be implemented by the judicial or administrative authorities of member countries, for example, by decreeing performance of the contracts or by awarding damages for their non-performance.”
Originally published in August 1956.
Journal des Tribunaux (Brussels), No. 4076, October 2, 1955, pp. 527–28.
Loi portant approbation de l’Acte final de la Conférence monétaire et financière des Nations unies tenue à Bretton Woods du 1er au 22 Juillet 1944, Moniteur Belge, March 13,1946 (Brussels), pp.2157–58.
See pp. 8–9, supra.
“La Banque Nationale tie Belgique est autorisée à acheter et à vendre des monnaies étrangères aux taux fixés par des accords de parité, de payement, de change ou de compensation, compte tenu des frais inhérents à l’achat et à la veute de ces monnaies. Compte tenu de ces taux de change, la Banque Nationale de Belgique fixe lea prix auxquels elle achète et éventuellement vend de l’or en barre ou en monnaies…. Lea prix fixés par la Banque Nationale de Belgique sont soumis à l’approbation du Ministre des Finances.”
In the report in the Journal des Tribunaux (p. 527), the price is Stated as 56,025 francs. It is believed that this is a typographical error.
The margin is prescribed in Rule F-4 of the Fund’s Rules and Regulations.
Journal des Tribunaux, p. 528.
It is not clear why Article IV, Section 2, is so drafted that certain gold transactions at prices departing from par values are possible under the provision. All nonparity gold transactions between members are caught by the provision; and so, too, are purchases at a premium and sales at a discount by a member in transactions with private parties or nonmembers, However, sales at a premium and purchases at a discount by a member in transactions with private parties or non-members are outside the prohibitions of the provision. (For the legislative history, see the references in n. 25, p. 33, supra.) It is possible that the drafters contemplated that domestic sales at a premium or domestic purchases at a discount by members might again be useful in some countries as connterinflationary or counter-deflationary policies, as they had been during the war. For the Fund’s policies on transactions at premium prices, whether prohibited by Article IV, Section 2, or not, see its Annual Report, 1947, pp. 78–79, and 1950, pp. 70–71 and 90–95.
For a Fund action based on the application of Article IV, Section 2, to a territory covered by Article XX, Section 2(g), see the case of Southern Rhodesia, in respect of which the United Kingdom had accepted the Fund Agreement. The transactions there, however, were between the monetary authorities of the territory and private parties. See International Monetary Fund, Annual Report, 1940, pp. 36–37.
P. 40; see pp. 36–41 of the Annual Report, 1951 for a full discussion,
For diseussions of this provision, see pp. 9–19, 28–32, 50–55, and 60–68, supra.
124 N.Y.S. (2d) 143 (1963).
124 N.Y.S. (2d), p. 153.
205 Misc. 715,129 N.Y.S. (2d) 134 (1954).
It should be made clear that the controversy really involved the question of the appropriate rate of exchange and not whether D should be denied all recovery. If the contract was void, S’s estate would be liable on the basis of unjustified enrichment. The rate of exchange would then be, not the 95 dinars to the dollar provided for in the contract, or the approximately 50 to the dollar prevailing at the time of making the contract, but the approximately 300 to the dollar current at the date of the action.
129 N.Y.S. (2d), pp. 138–39.
Pp. 28–30 and 50–55” supra.
Pp. 12–13, supra.
For an interesting discussion of the Sik case, see Michael H, Cardozo. “International Law in the New York Courts—1954,” Cornell Law Quarterly (Ithaca), Vol.40 (1955), pp. 547–60.
140 N.Y.S. (2d) 323 (1955).
140 N.Y.S. (2d), pp. 326–27.
Pp. 62–66, supra.
Title Claim No. 41668, Docket No. 1698.
Cf. Re Helbert Wagg & Co. Ltd. (1956) 1 All E.R. 129.
Translated from the Flemish original.
See pp. 61–62, supra.
See, for example, B. S. Meyer, “Recognition of Exchange Controle after the International Monetary Fund Agreement,” Yale Law Journal (New Haven), Vol. 62 (1953), pp. 885–88; F. A. Mann, The Legal Aspect of Money (London, 2nd ed., 1953), pp. 381–82.
Cf. Re Mason’s Estate, 194 Misc 308, 86 N.Y.S. (2d) 232 (Surrogate’s Court, New York County, 1948); Roach v. Welles, 127 N.Y.S. (2d) 138, p. 139 (Sup. Ct., 1964).
G. R. Delaume, “De I’élimination des conflicts de lois en matière monétaire réalisée par les statute du Fonds Monétaire International et de ses limites,” Journal du Droit International (Paris), Vol. 81 (1954), pp. 356–60. See also F. A. Mann, op. cit., p. 385.
On the issue of whether there was an unconditional contract, the court held that this was to be decided by German law and that there was no case for taking Belgian law into account.
The express references in the opinion are to F. A, Mann, “Der Internationale Währungsfonds und das Internationale Privatrecht,” Juristenzeitung (Tubingen), Vol.8 (1953), pp. 442–46 (referred to in later footnotes as JZ).
The Legal Aspect of Monty (London, 2nd ed., 1953), p. 382, and JZ, p. 444.
See, for example, A. Nussbaum, Money in the Law, National and International (Brooklyn, 2nd ed., 1950), pp. 543–44.
The court’s opinion does not refer to the plaintiffs’ argument in detail. It is possible that they had also argued that, even if the defendants had intended to pay in marks, they would have had to purchase them with francs.
Cf. F. A. Mann, The Legal Aspect of Money (London, 2nd ed., 1953), p. 384, and JZ, p. 445.
The court relied upon the views of Dr. Mann (JZ, p, 445); these are considered on pp. 61–62, supra.