Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
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.
Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.
If you think you should have access to this title, please contact your librarian.