Chapter

Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective

Abba Kolo

in International Investment Law and Comparative Public Law

Published in print October 2010 | ISBN: 9780199589104
Published online January 2011 | e-ISBN: 9780191595455 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199589104.003.0011
Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective

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This chapter discusses two interpretative questions that are likely to arise in investment treaty arbitration in the context of capital transfer guarantees. First, in the event of conflict between transfer provisions in investment treaties and the IMF Articles of Agreement, which one prevails? Second, where the investment treaty requires that host State exchange restrictions should be consistent with the Fund Agreement, how should a tribunal determine the consistency of an impugned measure? As regards the first question, the chapter suggests that, applying the principle of lex specialis, investment treaties should prevail over the Fund Agreement as the former are more specific than the latter. As regards the second question, the chapter suggests that an arbitral tribunal may seek guidance from the jurisprudence of the WTO and domestic court decisions that interpreted analogous provisions of the GATT and the Fund Agreement, albeit in different contexts.

Keywords: capital transfer restrictions; balance of payments; IMF Articles of Agreement; conflict of rules; lex specialis; arbitration

Chapter.  16778 words. 

Subjects: Constitutional and Administrative Law

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