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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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

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

Chapter:
(p.345) 11 Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
Source:
International Investment Law and Comparative Public Law
Author(s):

Abba Kolo

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199589104.003.0011

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

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