The role of contracts in international currency law
The international treaty is the main source of international public law (international currency law). Among multilateral treaties, multilateral treaties reflect the will and interests of many states.
International treaties in different ways (depending on the nature of their functions) regulate currency relations. In this respect, the following can be distinguished:
- contracts that fix the foundations of currency relations and their general principles. In the writings of scientists, such agreements are often referred to as general treaties.
They establish a unified procedure for the implementation of currency relations by these states, serve as a basis for concluding other such contracts;
- contracts containing individually defined currency norms, calculated for their direct application in practice. The purpose of such agreements is to create favorable conditions for the performance of foreign exchange operations, and therefore the obligations contained therein are individualized in relation to those goals that they expect to achieve through these operations.
It is important to note that before the Second World War there was no multilateral mechanism for the legal regulation of international monetary and settlement relations. In the XIX century. attempts at multilateral cooperation within the framework of payment unions of states have not been successful. Thus, for example, the Latin Monetary Union, established on the basis of the Agreement "On the Latin Monetary Union", concluded between the governments of France, Belgium, Italy, Switzerland, existed just over ten years. This agreement was one of the oldest multilateral treaties on currency regulation, which became one of the first acts regulating currency relations at the international level. The Scandinavian Monetary Union was established by the Agreement between Sweden, Norway and Denmark on May 27, 1873, it had only three states as participants and existed until 1914, as the states did not come to a consensus on their monetary policy.
So, before 1944, there was no universal international monetary order, and regulation of foreign exchange relations was carried out by states at the domestic level. Today, multilateral economic organizations have become the main instruments for the legal regulation of international financial relations. Of particular importance are international agreements that establish interstate credit and financial institutions. The most important universal treaties of this kind are the Agreement on the International Monetary Fund and Articles
Agreement on the International Bank for Reconstruction and Development. These acts consolidated the fundamental provisions for the implementation of international settlement and lending operations, they established the IMF and IBRD as permanent organizations that ensure the creation of favorable conditions for investment, investment of long-term investments, contributing to the development of the countries that are working to maintain balance of payments. The International Monetary Fund was established as a center providing cooperation between member states on the problems of regulation and coordination of monetary and financial activities. On the basis of the above-mentioned treaties, a mechanism was established to regulate monetary and financial relations, ensuring stable interstate relations in the field of settlement and credit relations.
In accordance with the provisions of the Articles of Agreement on the International Monetary Fund, the main objectives of this organization include: determining parity and exchange rates, maintaining their stability; streamlining of currency relations between states; facilitating the reversibility of currencies; the achievement of the lifting of the restriction of currency circulation on current operations; assistance to states on financial and monetary issues. These actions should be aimed at overcoming the balance of payments deficit and contributing to the elimination of imbalances in the monetary sphere.
The mechanism established provided that, with a negative balance of payments, states used their national currency reserves, and then - the IMF reserves (by agreement with it) in the form of special loans issued when certain requirements were met. In case of special necessity, the possibility of devaluation of the national currency was allowed. In the course of fulfilling its functions, the IMF was given a new power to issue a conditional international currency - SDR.
The United States concludes interstate agreements on participation in international financial organizations, multilateral financial agreements and other key aspects of cooperation in the monetary sphere. It should be noted that the international legal regulation of currency relations at the multilateral level is very complex. In the future, their regulation will be carried out at both levels. Multilateral treaties, as a rule, establish the basis for cooperation and are "framework" in relation to bilateral, more closely regulating the issues of monetary cooperation.
Regional treaties are important sources of international currency law. They can be classified into the following groups: treaties establishing European, Asian, African, inter-American international financial organizations and financial cooperation organizations of Arab countries.
Among regional sources of international currency law, it is necessary to name the Treaty establishing the European Economic Community, according to which the currencies of member countries are also convertible against the dollar. In the development of this Agreement in 1979, the European Monetary System was created to ensure monetary stability within the European Community. The next stage was the decision of the European Council of 1988 on the creation of the European Economic and Monetary Union, the objectives of which were to be: free movement of goods, services, capital; joint adoption of the most important decisions in the field of monetary policy; establishment of stable currency parities; complete liberalization of capital markets. In 1992, the leaders of the member states of the European Community signed the Treaty on the European Union, in which they fixed the norm on the creation of both an economic and monetary union.
The developers of this Treaty have realistically approached the prospects for the development of monetary integration. Crises in the monetary and financial sphere did not affect the desire of the countries of the European Community to create a monetary union. Particular emphasis was placed on the ever wider introduction of the Euro currency as a single means of payment. Since January 1, 2003, the countries of the European Community have switched to cash circulation, creating a single currency, the euro.
The European Monetary System has proved its viability in practice, having fulfilled its task to ensure currency stability. The European monetary system has made and is making a positive contribution to the world practice of currency regulation.
The need to move to a qualitatively new level of integration for the countries of the European Union was due to economic reasons. The realization of the goal of creating a single internal market of the European Union required the reform of existing mechanisms for coordinating and making decisions on currency issues, coordinating the monetary policy of the countries of the European Union and moving to a unified monetary and monetary policy.
With the creation of the European Monetary Union, the decision to devalue the currency on the initiative of the state, the limits of currency fluctuations and some other issues have shifted from the internal competence of states to the supranational system of the European Union.
The Agreement on the Formation of the Single Economic Space of September 19, 2003 and the Agreement "On the Establishment of the Payment Union of the Commonwealth of Independent States" is also to be regarded as regional sources of international currency law. " from October 21, 1994
Among the regional agreements can be identified: the Treaty establishing the European Economic Community, under which the European Investment Bank was established; The Agreement Establishing the African Development Bank in 1963, the Agreement Establishing the Inter-American Development Bank in 1959; Agreement on the Establishment of the Asian Development Bank in 1965
Among the subregional agreements, it is necessary to name: the Agreement on the Nordic Investment Bank of 1998, the Agreement on the Northern Development Fund of 1988, the Agreement on the Establishment of the Black Sea Trade and Development Bank in 1994.
So, multilateral interstate agreements regulating settlement (currency) relations can be divided into two large groups:
1) contracts that have a mixed private-public legal nature and regulate business issues;
2) contracts that have a totally public legal nature and regulate the issues of financial (monetary) policies of states and the activities of state bodies.
The importance of such a division of contracts is predetermined, first of all, by differentiation of goals and tasks of regulation that require different approaches to the formation of legal norms.Regulation of monetary (currency) relations between subjects of private law is carried out on the basis of a number of universal conventions: the UN Convention on Independent Guarantees and Stand-by Letters of Credit of 11 December 1995, the UNIDROIT Convention on International Factoring of 7 February 2001, the UN Convention on the assignment of receivables in international trade of December 12, 2001, the Convention aimed at resolving certain conflicts of laws on transfer and promissory notes dated June 7, 1930, the Convention establishing a uniform law on transfer and promissory notes, dated 7 June 1930, of the Convention, with the aim of resolving certain conflicts of checks laws, of March 19, 1931. The dual nature of the nature of the said conventions is, on the one hand, that they perpetuate the international legal obligations of states in the sphere of credit and settlement relations (a public element is reflected here), and on the other hand, that in the final analysis they regulate relations between private entities from different states (private aspect) concerning their settlements in foreign currency with foreign partners. The development of new international legal acts aimed at convergence of the organizational system of national institutions, forming in their totality a single mechanism for regulating the settlement and money relations in the state, would also be a step forward on the path of intensification and enhancement of the effectiveness of cooperation between states in the sphere of monetary and settlement relations.
More quickly, although not always successfully, the process of unification of the norms governing settlement (currency) relations is realized at the regional level within the framework of integration associations. A vivid example of effective standardization of standards in this area is the European Union, within which a single system of monetary and financial institutions operates. Between the countries of the European region was concluded a number of agreements on the order of mutual settlements in the euro.
Within the framework of the CIS, the Treaty on the Establishment of the Economic Union was also signed, which plays an important role in strengthening economic cooperation among the CIS member countries. Among the main goals of the treaty, the coordination of monetary, fiscal, taxation, price, foreign economic and monetary policies is proclaimed, and the creation of a monetary union is the main place in achieving them. However, along with a positive moment, namely, the provision of monetary and financial integration of the CIS member states, the said Treaty has a serious drawback: it requires the development of many additional acts. In 1994, the Agreement "On the Establishment of the Payment Union of the Member States of the Commonwealth of Independent States" was concluded, and on September 19, 2003 the Agreement on the Formation of the Single Economic Space was signed. In accordance with them, the task was set to establish by voluntary union of the parties of the Payment Union of the CIS countries, which would help create conditions for mutual convertibility of national currencies and formulate on this basis a payment system, move to settlements in a collective currency, facilitate liberalization of monetary policy, ensure agreeing the procedure for establishing exchange rates of national currencies of CIS countries.
The European Monetary Union acts more efficiently than the Payment Union of the CIS countries. To create an effectively functioning monetary union, it is necessary to take into account the experience of other regions in which payment unions are currently operating. Such unions of the countries of Europe, Latin America, Asia and Africa unite about a hundred states, they bring together the financial legislation of the member states, establish uniform requirements in the monetary and payment and settlement spheres in the territories of the participating states.
The creation of the Monetary Union is one of the main forms of economic (monetary) integration. The category of absolute monetary stability is used for the monetary union, which is created by introducing a new monetary unit for all countries (in the European Union - the euro) in exchange for national units and the establishment of a central bank for a single monetary policy.
The monetary union is not a separate organization and does not have its own institutional structure.
The zone of absolute currency stability is characterized by the fact that there are no fluctuations between the rates of national currencies.
In practice, the following types of zones of absolute currency stability are possible:
- the use of the national monetary units of the participating States as a legal means of payment in the territory of each of them. Examples of such currency blocks are few: the Latin Monetary Union (1865-1926), which included Belgium, Italy, France, Switzerland and Greece; Union of Belgium and Luxembourg (1921);
- the transition of member states to the monetary unit of one of them. Examples of this type of currency blocks are the Union of Bavaria and Prussia (1837-1838), an alliance between Russia and Belarus, within the framework of which in the future it is planned to switch to settlements in United States rubles;
- the introduction by member states of a new single monetary unit in place of national ones. The classic and only example of this option is the Economic and Monetary Union created within the European Union.
Currently, there is a combination of bilateral and multilateral forms of interstate cooperation in the field of monetary and financial relations. However, the number of bilateral treaties and agreements concluded between states on currency issues is many times greater than multilateral ones. Currently, bilateral international treaties regulate not only the calculations for foreign trade, the issues of providing financial assistance, interstate loans for currency control, but also other types of monetary and financial relations.
The analysis of international legal acts allows us to conclude that at present the regulation of the relations under consideration at the bilateral level develops in two main forms: firstly, it is the international legal regulation of foreign exchange relations servicing various obligations arising from foreign economic and other interstate relations; Secondly, this is an independent regulation of currency relations within the framework of international agreements specifically devoted to currency control issues.
Bilateral agreements on cooperation of states in the monetary sphere by subject composition can be divided into three groups:
- agreements on cooperation between the two states (for example, the Agreement between the Government of the United States and the Government of the Swiss Confederation on technical and financial cooperation of November 28, 1995);
- agreements on cooperation between one state on the one hand and a group of states on the other (for example, the Partnership and Cooperation Agreement establishing a partnership between the United States, on the one hand, and the European Community and its member states, on the other hand , dated June 24, 1994);
- agreements between the state on the one hand and the intergovernmental organization on the other (for example, the Framework Agreement between the United States and the European Investment Bank that regulates the Bank's activities in the United States of December 6, 2002).
Examples of bilateral treaties governing foreign exchange control issues concluded by the United States with foreign countries are: the Agreement between the Government of the United States and the Government of the Republic of Belarus on Cooperation and Mutual Assistance in the Field of Currency and Export Control of July 12, 1995; Agreement between the Government of the United States and the Government of the Republic of Georgia on Cooperation and Mutual Assistance in the Field of Currency and Export Control of September 15, 1995; Protocol between the United States and the Republic of Kazakhstan on the settlement of financial matters dated July 6, 1998; Agreement between the Government of the United States and the Government of the Republic of Armenia on Cooperation and Mutual Assistance in the Field of Currency and Export Control of March 21, 1996; Agreement between the Government of the United States and the Government of the Italian Republic on cooperation and mutual assistance in the field of currency control, control over export-import transactions and in the sphere of combating money laundering or other property acquired illegally from July 29 1996; Agreement between the Government of the Republic of Uzbekistan and the Government of the United States on cooperation and mutual assistance in the field of currency and export control of September 22, 1996; Agreement between the Government of the United States and the Government of the People's Republic of China on Cooperation and Mutual Assistance in the Field of Currency Control dated April 25, 1996; Agreement between the Government of the United States and the Government of the Republic of Azerbaijan on Cooperation and Mutual Assistance in the Field of Currency and Export Control of July 3, 1997
By concluding these agreements, the states sought to raise to a higher level the fight against violations of legislation in the field of currency control. They confirmed that they will act together to achieve this goal. In the agreements, they enshrined the obligation to exchange information: on measures taken by the controlling and law enforcement agencies of the parties to oversee compliance with national legislation in the field of foreign exchange, export-import and other foreign economic transactions; on measures to improve and operate the system for monitoring compliance with the laws of the parties in the field of foreign exchange, export-import and other foreign economic transactions; on violations of national legislation governing foreign exchange, export-import and other foreign economic transactions. They expressed their agreement to strengthen cooperation in the field of joint detection of violations of legislation by legal entities and individuals in the implementation of foreign exchange, export and other foreign economic transactions. The participants in the agreements provided for the development of a unified procedure for exercising currency control. In order to achieve their goals, they committed themselves to assist each other in training specialists in the field of currency control. In order to provide the conditions for the provision of information, the agreements establish a clear procedure for providing information and stipulate that information is exchanged on the basis of requests submitted by the parties in writing. As a form of practical assistance, the parties envisaged assistance in organizing working visits, exchanging representatives, holding consultations and seminars, developing and exchanging methodological recommendations. An important provision of these agreements is the indication of participants that they will cooperate with each other in accordance with national legislation and taking into account international treaties. Various agreements stipulating cooperation and mutual assistance of states in the field of currency control provide for a different volume of control powers of the bodies of the parties in the currency sphere. This is explained by the fact that the states realized the fact that violation of currency legislation poses a danger for foreign economic operations and the successful functioning of foreign exchange markets.
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