Unit 14 International Financial Law

1. Unit 14 International Financial Law Text I Law of International Finance-Choice of Law -To understand international principles of choice of law in international finance context Text II Selected Clauses of Agreement of International Monetary Fund -To have an overview of the Agreement Typical Sentence Patterns: Courtroom English

2. Text I Law of International Finance -Choice of Law Useful expressions: bond issue, say (parenthesis), syndicate, country of…, place of…, impinge on / upon, have recourse to, grasp at a straw, apace (adv.), ascertain the law, off-shoot, family of law, be a long way from, tenet for, usury n. (usurious adj.), forfeiture (of loan), given that…, on offer, have an edge in (bargaining power), as opposed to, part (v.) with, arbitral / arbitration tribunal, merits, confer…on…, in suspense, be struck down, evasive adj. (evade v., evasion n.), statutory limitation, devoid of, on ground(s) of/ that…, national prestige, alien law, self-supporting, tacit / implied choice, policy interest Terms: international loan agreement, private international law, conflict of laws, corporate law, proper law, party autonomy, center of gravity, law of the forum Proper names: (Convention establishing) ICSID, EEC Draft Convention on Obligations

3. Questions based on Part I • When does private international law arise in international finance? • What do you know about private international law? • How does the text describe the development of private international law? • Use the two-stage analysis to the 2 examples provided in para.2 and para.5 respectively.

4. Questions based on Part II-end • What is proper law and what law can be proper law? • What are the possible choices of law related to an international loan agreement? • What is party autonomy, when does it apply, what are the advantages of such a principle and what are the limitations on it? • What can the parties resort to in case of dispute if no express choice of the proper law has been made? • What is the status quo of international rule-making in settling financial disputes?

5. Terms private international law 国际私法 -Chinese definition:“That branch of law which regulates civil legal relations (in broad sense: compassing commercial relations) with foreign elements”调整带有涉外因素的民（商）事法律关系的部门法，又称“涉外民法” -By Graveson:“That branch of law which deals with cases in which some relevant fact has a connection with another system of law on either territorial or personal grounds, and may, on that account, raise a question as to the application of one’s own or the appropriate alternative (usu. foreign) law to the determination of the issue, or as to the exercise of jurisdiction by one’s own or foreign courts.”

6. -also known as “conflict of laws”（冲突法）：the situation in which a certain civil legal relation with foreign elements involves the laws of 2 or more different legal units which conflict with each other. The private international law rules will point to which country’s law shall apply to the given dispute. structure of a conflict rule 2 parts: category / class （范围）and attribution（系属包括连接点connecting point / factor和准据法proper law） E.g. Ownership to immovables is governed by the law of the place where the property is situated. 不动产依不动产所在地法。

7. Terms proper law准据法 -the applicable in an agreement party autonomy当事人意思自治 -when concluding a contract, the parties have certain freedom to include in their contract a choice of law clause, by which they choose a law or a legal system to govern their agreement when disputes arise center of gravity最密切联系原则，法律之重心原则 law of the forum法院地法 consumer finance -The most basic sense of the word refers to any kind of lending to consumers including loans from banks and indirect finance such as hire-purchase agreements, and loans by specialist retail finance companies International finance is the branch of economics that studies the dynamics of exchange rates, foreign investment, and how these affect international trade

8. Additional questions 1. What are the sources of private international law? 2. How to solve conflicts between laws? 3. What are the possible formulas of attribution（系属公式）？ 4. Can the contractual parties choose a proper law that has no connection with the contract? 5. Can the contractual parties choose the arbitration tribunal and the arbitration rules in solving the contractual disputes? 6. What are the limitations imposed on party autonomy?

9. 7. Do all the countries recognize contractual parties’ implicit choice of proper law? 8. If contractual parties fail to choose the proper law or their intent is not clear enough, how do courts generally decide on the applicable law to the contract? 9. Do you know any rules governing the application of law to the economic contracts involving foreign interest in China? 10. Do you know any international organizations involved in the private international law and any international commercial arbitration tribunals?

10. Proper names (Convention establishing) ICSID 《（建立）解决投资争端国际中心（公约）》 EEC Draft Convention on Obligations 欧共体义务公约草案

11. Text II Selected Clauses of Agreement of International Monetary Fund Agreement of International Monetary Fund 《国际货币基金组织条约》 -see the full text at http://www.imf.org/external/pubs/ft/aa/index.htm

12. Overview The International Monetary Fund was created in 1945 to help promote the health of the world economy. Headquartered in Washington DC, it is governed by and accountable to the governments of the 185 countries that make up its near-global membership.

13. Historical origin The International Monetary Fund—also known as the “IMF” or the “Fund”—was conceived at a United Nations conference convened in Bretton Woods, New Hampshire, U.S. in July 1944. The 45 governments represented at that conference sought to build a framework for economic cooperation that would avoid a repetition of the disastrous economic policies that had contributed to the Great Depression of the 1930s.

14. Main responsibilities (Art. I of the Agreement): promoting international monetary cooperation; facilitating the expansion and balanced growth of international trade; promoting exchange stability; assisting in the establishment of a multilateral system of payments; and making its resources available (under adequate safeguards) to members experiencing balance of payments difficulties.

15. 国际货币基金组织(简介) 国际货币基金组织是政府间的国际金融组织。它是根据1944年7月在美国新罕布什尔州布雷顿森林召开联合国和联盟国家的国际货币金融会议上通过的《国际货币基金协定》而建立起来的。于1945年12月27日正式成立，1947年3月1日开始办理业务。同年11月15日成为联合国的一个专门机构，但在经营上有其独立性。至今，IMF已有185个成员。 IMF主要业务活动有：向成员提供货款，在货币问题上促进国际合作，研究国际货币制度改革的有关问题，研究扩大基金组织的作用，提供技术援助和加强同其它国际机构的联系。

16. 基金组织设5个地区部门（非洲、亚洲、欧洲、中东、西半球）和12个职能部门（行政管理、中央银行业务、汇兑和贸易关系、对外关系、财政事务、国际货币基金学院、法律事务、研究、秘书、司库、统计、语言服务局）。其宗旨(Art. I)是作为一个常设机构在国际金融问题上进行协商与协作，促进国际货币合作；促进国际贸易的扩大和和平衡发展；促进和保持成员国的就业，生产资源的发展和实际收入的高水平；促进国际汇兑的稳定，在成员国之间保持有秩序的汇价安排，防止竞争性的货币贬值；协助成员国在经常项目交易中建立多边支付制定，消除妨成员国临时提供普通资金，使其纠正国际收支的失调，而不采取危害本国或国际繁荣的措施，缩短成员国国际收支不平衡的时间，减轻不平衡的程度。