Subject of International Currency Law
The subject of international currency law is the currency legal relations regulated by it, having a complex legal nature, which N. Sapozhnikov drew attention to.
The mechanism of legal regulation of currency legal relations includes the following elements:
- a set of monetary and financial instruments;
- institutional instruments of cooperation;
- international legal means for regulating currency relations.
The first element includes national and international currencies, international settlements and lending systems, including the regime of payments and settlements between states. The currency in most countries is an independent and integral part of the economy. The concept of currency and includes, on the one hand, the monetary funds of a given country (national currency) established by law, and on the other - reserve world money in the form of one or several currencies of leading powers and international monetary units that are used in multilateral calculations of the members of the IMF and the European currency system.
Institutional instruments of cooperation include the activities of states as organizers and subjects of currency relations, as well as the activities of international organizations (IMF, IBRD, etc.).
The means of regulation include international treaties (agreements, conventions) developed in the process of activity of subjects of international law. The main driving force behind this mechanism is the activities of states to coordinate activities in the relevant field. All tools and forms of their practical implementation used in this sphere are reduced to performing transactions, the subject of which is the currency.
In the legal literature, different points of view on the issue of the essence of currency legal relations are put forward. In general, two approaches to its definition are distinguished: broad and narrow. This is due to the fact that the "legal regulation of currency relations covers three areas: international public law, domestic public law, as well as international and domestic private law".
The norms governing each of these spheres have significant differences. From the narrow approach currency legal relations are identified either only with public, or with private legal relations. This is exactly what H. M. Artemov, which relates currency legal relations to the field of public law. The same point of view is maintained by B. Yu. Dorofeev, . N. Zemtsov, V. N. Pushin.
Based on a broad (complex) approach, currency legal relations represent a combination of public-legal and private-law relations arising over currency values.
Supporters of this point of view recognize that currency relations are of a mixed nature - both publicly-legal and private-law.
They believe that international monetary relations include both certain categories of norms of international public law, and the norms of civil, state, financial and administrative law, the elements of which are currency values, and also that it is useful to combine all the norms regulating relations into a complex industry , connected with foreign currency. Money acts as a currency as an international means of payment, as a measure of value and as a means of accumulation. The monetary nature of currency relations is manifested in the fact that their basis is money or monetary obligations. Supporters of the above point of view believe that it is important that the norms of one legal system promote, and not counteract the other in the process of functioning.
It is precisely these relations that are regulated by the Law on Currency Regulation, in Art. 2 of which it is indicated that it determines the rights and obligations of residents and non-residents with respect to the possession, use and disposal of currency values, rights and obligations of non-residents with respect to the possession, use and disposition of the US currency and domestic securities, the rights and obligations of currency control bodies and foreign exchange agents control.
Since currency legal relations can have international legal, financial-legal and civil-law character, it seems correct to take an integrated approach to assessing the legal nature of currency legal relations arising in the sphere of currency circulation, currency regulation and currency control. But nevertheless, it is necessary to separate the spheres of public-law and private-law regulation of currency relations.
Because of this clearly expressed complex character, in addition to international public currency law, some scholars distinguish international private currency law. Thus, the German scientist VF Ebke pays great attention to the characterization of private international law, which has become the basis of multilateral international legal practice. In his opinion, private international law primarily serves as a legal instrument for the realization of interstate cooperation in the monetary sphere between private individuals. He carefully analyzes the discussion points expressed not only in the scientific literature, but also in judicial law enforcement practice, in particular on the problems of international law of convertibility, on the extent of the extraterritorial effect of restrictions on convertibility, on the correlation of the legal norms governing currency control and the rules governing the national security of states.
Gradually there is a realization by the states that the conflict of laws rules governing the applicable law to regulate currency control issues is necessary, which makes it possible to take into account the interests of individuals and legal entities that carry out foreign exchange operations within the framework of private law relations. Accounting for private interests along with state interests increases the effectiveness of legal regulation of currency relations.
The activation of international cooperation of states in the monetary and financial sphere directly affects the development of international private currency law. The best proof of this is Art. VIII. 2 (b) of the Articles of Agreement on the International Monetary Fund, which fixed the specifics of the regulation of the world monetary and financial system and instructs IMF member countries, under certain conditions, to take into account (observe) the exchange control rules of other IMF member countries if these norms are in accordance with this act.
As we can see, the idea of deepening international cooperation in the monetary sphere also influenced the development of the conflict-of-exchange currency law of the IMF member countries. Thus, after the establishment of the IMF it was possible to positively resolve the issue of the application of foreign exchange control norms of foreign states in the national legal order of states. In the subsequent period, many states began to use conflict rules on the choice of the norms of exchange control of a state.
The above reasons also cause significant changes in international currency law, in which the principle of the expansion of cooperation in the currency sphere and the currency relations of individuals as a special international law is being formed.
The conflict-of-law rules in the field of currency regulation and currency control are gradually brought into line with international treaties governing international monetary relations, which increases the effectiveness of the rules of international public currency law.
International currency law can be defined as follows: it is a system of principles and norms governing the complex of relations between states and other subjects of international public law arising in the process of making currency transactions by residents and non-residents, about currency and currency values regulating methods and methods of currency regulation and currency control. At the same time when we talk about international currency law, we are talking about interstate relations.
The norms of international currency law regulate legal relations within the framework of the modern world monetary system, which is a form of organizing currency relations within the framework of international economic relations, developed as a result of a long evolution and enshrined in interstate agreements.
The world currency system includes: international payment means (currencies); the procedure for exchanging one currency for another; terms of convertibility (convertibility) of currencies; use of foreign currency in settlement relations; regime of world currency markets. Spheres of legal regulation of international currency relations are: servicing the external debt of states; regulation of international and national currency markets; regulation of organizational and legal forms of monetary cooperation between states.
States are forced to place certain issues of currency relations on joint international legal regulation. Increasingly, the objects of such regulation are internal legal regimes.
As it was shown above, in the national law legal regimes for residents and non-residents differ.
In international currency relations, one of the main obstacles in establishing and developing cooperation between states and individuals of these states can be internal law, namely, domestic legal regimes that determine how open to foreigners is the currency system of that state.
The internal legal regime determines the status of foreign currencies in a given state and the types of currency instruments used in it.
The subject of regulation of international currency law are the international currency relations that arise:
- about the establishment of the exchange rate, i.e. determination of the price of the national currency expressed in the currency of a foreign country, since the currency itself becomes a commodity, the subject of sale and purchase in foreign exchange markets;
- about operations with the currency values of the state in order to achieve their goals;
- between entities in the course of their business activities using foreign exchange;
- in the process of state regulation of legal relations with foreign currency, including the procedure for performing transactions with currency values;
- on the implementation of foreign exchange regulation and foreign exchange control.The means by which the organization is organized and cooperation is realized within the framework of the international monetary system are: institutional cooperation mechanisms, a set of currency instruments, international legal means for regulating currency relations.
It is characteristic that in the modern period new currency instruments appeared in the currency market, as the very nature of currency relations became more complicated.
There is a need for these new instruments, since the foreign exchange market is the most opaque of all existing financial markets. To date, there are no universally recognized international legal or national standards that require timely (for example, daily) disclosure of information on the aggregated results of currency trading (volumes, number of transactions) in the world foreign exchange market.
The international currency market continues to remain unregulated and uncontrollable by any of the international financial organizations. The main actors in the international monetary and financial market are the most economically developed states and their national banks.
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