Legal constructions "international private currency law" and "international stock law" I.v. Hetman-pavlova

Theme 9

International private monetary law

Boguslavsky, M. M.

Erpyleva, N. Yu. International private law: textbook. M., 2006.

Lunts, L. A. Course of private international law. In 3 vol. M., 2002.

International private law: textbook / ed. G. K. Dmitrieva. M., 2007.

International private law: textbook / ed. N. I. Marysheva. M., 2004.

International private law: Foreign legislation / comp. A. N. Zhiltsov, A. I. Muranov. M., 2001.

International monetary and financial relations / ed. L. R. Krasavina. M., 2002.

The securities market: textbook. allowance for universities / ed. E. F. Zhukova. M., 2004.

General Principles of International Private Monetary Law

Currency law exists as a public and private law, and “public currency law covers the state currency policy, and private currency law is the relationship between individuals associated with the circulation of currency values” (O. Kols). In the domestic PIL doctrine, the term "international private currency law" is practically not used. The concept of "credit and settlement relations with a foreign element" is used. The term "international private monetary law" has a somewhat paradoxical character - it is both private and monetary at the same time. However, the use of this term is quite justified, since we are talking about currency relations in the field of private legal activity.

International private monetary law is an independent institution (sub-branch) of private private partnership, which has a stable character and a special subject of regulation; this is a set of rules governing the financing of international commercial activities, currency, credit settlement relations of a private law nature, associated with a foreign legal order. The concept of "international private monetary law" originated in German jurisprudence; currently accepted by the doctrine and practice of many states.

The subject of regulation of international private monetary law is international monetary relations that develop during the functioning of the currency in the world economy. They represent a kind of monetary relations arising from the functioning of money in international circulation. It is customary to call “currency” only those money that are recognized by the world community as universal equivalents (M. G. Stepanyan).

Under foreign exchange refers to money belonging to the country's currency system, other than the one to which the obligation is subordinated (L. A. Lunts). The English Law of 1882 defines foreign currency as money that is not the currency of Great Britain. Foreign currency is also understood as money other than the currency of the place of payment (J. Falconbridge).

Foreign exchange transactions are carried out through foreign exchange obligations. The amount of a foreign exchange obligation must always be certain or determinable (L. A. Lunts). In foreign exchange obligations are distinguished:

- the monetary unit in which the amount of the obligation is calculated, - the currency of the debt;

- banknotes, which are a means of repaying a monetary obligation, - the currency of payment.

“The currency of the debt and the currency of payment (explicit or implicit) are included in each obligation, calculated in a certain amount. Sometimes they coincide (a £100 bill payable in London - the pound sterling is the currency of the debt and the currency of payment); if, for example, the contract refers to the payment of “100 pounds sterling in US dollars”, then the pound sterling is the currency of the debt, and the dollar is the currency of payment” (L. A. Lunts). In the bill legislation of many countries there is a clause on "effective payment", which implies payment of a bill only in the currency of payment indicated directly in the bill.

The possibility of exchanging the national currency for the currency of any other state is decided by national legislation. The main criterion in these transactions is currency convertibility. Currency convertibility restrictions are legal obstacles related to the peculiarities of national currency regulation.

International monetary units are collective currencies. They differ from national currencies in terms of issuer (issued by international monetary organizations) and in form (non-cash). An international monetary unit is an artificial currency unit, which is a conditional scale used to measure international debt obligations and payments (M. G. Stepanyan). SDR, ECU and Euro are used to serve international economic relations.

SDRs (Special Drawing Rights - SDRs) are issued by the International Monetary Fund for international payments and reserve funds. They were introduced in 1970 and exist in the form of entries in the accounts of the IMF. SDRs are distributed among IMF member countries. The SDR is issued in the form of non-cash transfers by means of entries in the accounts of countries participating in the SDR system. SDRs act as an asset alternative to gold or the US dollar, perform certain functions of world money in regulating the balance of payments, making international settlements with a “multi-currency clause” in SDRs (R. A. Razhkov). The value of the SDR was originally related to gold, but since 1974 has been determined on the basis of a "basket" of currencies (US dollar, euro, pound sterling and yen). Since the rates of these currencies are floating, the rate of the SDR also "floats" (G. Velyaminov). Along with the SDR, in international settlements (especially in the field of international transportation), the international unit of account "golden franc" (GF) is used; between the gold franc and the SDR, there is always a ratio of 1 SDR = 3.061 GF.

Previously, the international unit of account ecu, which was issued by the European Monetary Institute (until 1994 - the European Monetary Cooperation Fund), was widely used. With the introduction of the euro in 1999, the ecu lost its significance.

Since January 1, 1999, a single currency, the euro, has been introduced for the member countries of the European Union. Accession to the euro area requires a country to meet the Maastricht convergence criteria:

– the inflation rate should not exceed by more than 1.5% the average level in the three EU countries with the lowest inflation;

- the budget deficit should be no more than 3% of GDP, public debt - be below 60% of GDP or strive for this value;

- the country must demonstrate the stability of the exchange rate against the euro;

– national legislation must be compatible with the EU Treaty, the statute of the European System of Central Banks, the statute of the European Central Bank.

Currency transactions in the territory of the Russian Federation are regulated by the currency legislation of the Russian Federation, which defines the concepts of foreign currency and currency values. The main regulatory act is the Federal Law of December 10, 2003 No. 173FZ “On Currency Regulation and Currency Control”. currency values is foreign currency, securities in foreign currency, stock values ​​and other debt obligations in foreign currency. Currency values ​​are objects civil rights and may be owned by both residents and non-residents. The norms of the Russian currency legislation are of an administrative-legal nature, but they also have a private-legal effect. These norms also apply to legal relations that, in accordance with Russian conflict of laws, are subject to foreign law. Foreign public law norms of currency law are often recognized in courts and arbitrations if the actual composition of the transaction is related to the law of a foreign state.

Getman-Pavlova I.V., Associate Professor of the Department of Private International Law, Faculty of Law, State University - Higher School of Economics, Candidate of Legal Sciences.

Currency relations arise between various subjects of law in connection with the use of currency values ​​in the process of currency regulation, currency control and currency circulation. Monetary law is a set of rules governing foreign exchange legal relations.

Many representatives of Russian legal science deny the existence of currency law as an independent branch of law and believe that there is only a complex branch of legislation.<1>. At the same time, in the domestic doctrine there is a directly opposite point of view - currency law is positioned as an independent, complex branch of law<2>.

<1>See: Andreev E.P., Tsareva O.E. Fundamentals of currency legislation / Ed. E.P. Andreeva. M., 2003.
<2>See: Dorofeev B.Yu., Zemtsov N.N., Pushin V.A. Currency law of Russia. M., 2005.

Monetary law includes a system of public law and private law regulations and methods of regulation. The German doctrine states that currency law exists as a public and private law, while public currency law covers the state currency policy, and private currency law is the relationship between individuals related to the circulation of currency values. Private monetary law "was born in Germany ... Gradually it appeared in almost all European and many non-European countries"<3>. All institutions of private currency law are based on the dependence of the implementation of civil law principles in the process of financing commercial activities on imperative public law regulations of currency legislation.

<3>

In the domestic doctrine of private international law, the term "international private currency law" is practically not used. The concept of "credit and settlement relations with a foreign element" is used. "International private currency law" is a relatively new term in Russian jurisprudence. It has a somewhat paradoxical character - both private and monetary (currency law is a branch of public law). However, the use of this term is quite justified, since we are talking about currency relations in the field of private law activities.

International private monetary law is an independent institution (sub-branch) of international private law, which has a stable character, a special subject of regulation. International private monetary law is a set of rules governing the financing of international commercial activities, currency, credit and settlement relations of a private law nature associated with a foreign legal order. The concept of "international private monetary law" was first formulated in German jurisprudence.

The most difficult problems of international private monetary law can be identified as:

1. The ratio of the conflict rules of the country of the court, by virtue of which they can apply the rules of foreign law, and the currency rules of the country of the court.
2. To what extent can the norms of the currency legislation of the country of the court limit the effect of its own conflict of laws rules if they refer to a foreign legal order.
3. Possibility of application of public law norms of foreign currency legislation.
4. Correlation of norms of the currency legislation with the obligation statute of the relation.
5. Legal grounds for refusal to apply the norms of foreign currency law.

In the doctrine of German law, original theories have been developed that are currently accepted by the doctrine and practice of most Western states (W. Wengler - the theory of special connection, K. Zweigert - the theory regarding the combination of the subjective element - the "will to act" of any norm - with the territorial criterion )<4>. The main principle of the doctrine of private international currency law was formulated by the German scientist Werner F. Ebke: "The conflict rule, which from the threshold rejects the application of foreign exchange control rules of a foreign state, should be rejected, as well as the conflict rule, which, due to falsely understood goals, gives complete freedom of hands to a foreign currency law"<5>.

<4>See: Zvekov V.P. Private International Law: A Course of Lectures. M., 2000.
<5>Werner F. Ebke. International monetary law. M., 1997.

Until the mid-40s of the XX century. practically all over the world the principle was in force, according to which "the application of foreign exchange law was limited to the territory of the country in which it was adopted"<6>. The turning point was the entry into force in December 1945 of the Bretton Woods Treaty establishing the International Monetary Fund.

<6>There.

In Art. VIII of the Treaty on the IMF, it is established that foreign exchange contracts affecting the currency of any state - a member of the Fund and concluded in violation of the legislation on currency control of this state, are unenforceable in the territory of any state - a member of the IMF. By mutual agreement, the member states of the Fund may cooperate in the application of measures aimed at strengthening the effectiveness of currency control of each of them, if such measures and regulation do not contradict the Treaty<7>.

<7>See: Zvekov V.P. Decree. op.

From the provisions of Art. VIII of the Treaty, it follows that states must comply with the rules of foreign exchange law governing currency control, if these rules do not contradict the Treaty. This establishment forms the legal basis for the application of foreign exchange law. The principle of territoriality and the principle of non-application of foreign public law cannot serve as a justification for derogating from this principle.

The norms of Russian currency legislation are of an administrative and legal nature, but at the same time they also have a private law effect. These norms also apply to legal relations that, in accordance with Russian conflict of laws, are subject to foreign law. Foreign public law norms of currency law are recognized in Russian courts and arbitrations if the actual composition of the transaction is related to the law of such a foreign state.

The rules of Russian currency regulation regarding the opening of accounts by residents in foreign banks are of an extraterritorial nature. In this situation, a conflict arises between the norms of foreign private law and the norms of Russian currency legislation. The rules of Russian currency legislation regarding the opening of accounts in foreign banks are of a private law nature: legal relations regarding the opening and maintenance of bank accounts are governed by civil law. There is a public law element in such rules, but it is not predominant, therefore these rules generally belong to private law.<8>.

<8>See: http://www.cisg-library.org.

Types of relations in private international monetary law (list is indicative):

1. Banking relations related to the legal order of two or more states (international banking law):

• forms of international payments;
• bank guarantees under international commercial contracts.

1. Financial obligations as an integral part of international commercial contracts.
2. Forms and procedure for financing international commercial activities.
3. Forms of currency risk insurance in international commercial contracts.
4. Turnover of securities in international commercial relations.

The specifics of regulatory regulation in international private currency law:

1. The special role of international business practices, banking and trade practices.
2. The special role of documents of international organizations of a monetary and financial nature (IBRD, IMF, IDA, IFC).
3. Influence of national currency legislation (its mandatory public law norms with private law effect).

The subject of regulation of private international monetary law is international monetary relations. International monetary relations are relations that develop during the functioning of the currency in the world economy, a kind of monetary relations that arise during the functioning of money in international circulation. In the system of regulation of foreign exchange relations, the central place is occupied by foreign currency. It is customary to call currency those money that are recognized by the world community as universal equivalents.<9>.

<9>See: Stepanyan M.G. Legal issues of using foreign currency in foreign trade // http://www.cfin.ru/press/black/2001-1/02_02_stepanyan.shtml.

Foreign currency is money belonging to the monetary system of a country other than that to which the obligation is subject.<10>. The English Bill of Exchange Act 1882 defines foreign currency as money that is not the currency of Great Britain. Foreign currency also means money other than the currency of the place of payment.

<10>See: L.A. Lunts. Money and monetary obligations in civil law. M., 2004.

Foreign currency - object currency transactions which are carried out through civil law obligations. The amount of a currency obligation must always be certain or definable: “If the differences between banknotes are determined only by quantity, and this latter is determined by the ratio of each banknote to a single accounting monetary unit, then it is clear that any monetary obligation is always expressed or can be expressed in some amount of monetary units, or, in other words, the amount of banknotes that make up the subject of a monetary obligation is always certain or definable "<11>. The amount of a foreign currency obligation may be expressed either in a specific amount of foreign monetary units, or by specifying a determination procedure that makes it possible to establish a specific amount of foreign monetary units.

<11>There.

In foreign exchange obligations are distinguished:

1. The monetary unit in which the amount of the obligation is calculated is the currency of the debt.
2. Banknotes, which are a means of repaying a monetary obligation, are the currency of payment.

"The currency of the debt and the currency of payment (explicitly or implicitly) are included in each obligation calculated in a certain amount. Sometimes they coincide (for example, in a bill issued in the amount of 100 pounds sterling with payment in London, the pound sterling is the currency of the debt and payment currency); if, for example, the contract refers to the payment of "100 pounds sterling in US dollars", then the pound sterling is the currency of the debt, and the dollar is the currency of payment"<12>. In the bill legislation of many countries there is an effective payment clause, which implies payment of a bill only in the currency of payment indicated directly in the bill.

<12>There.

In German doctrine and jurisprudence, special conflict bindings have been developed to resolve issues that arise regarding the content of monetary obligations - the law of the payment currency and the law of the debt currency. There are no such bindings in Russian law. The domestic PIL doctrine, in principle, negatively evaluates the use of currency pegs, believing that they cannot be considered as conflict principles. In Soviet literature, the point of view was expressed that in international trade there is no place at all for a currency peg. The use of a foreign currency to determine the amount of a debt does not in itself imply a reference to foreign law. Foreign currency from the standpoint of PIL has a value similar to the value of a foreign measure of weight used, for example, to determine the quantity of goods supplied<13>.

<13>Lunts L.A. Course of private international law: In 3 volumes. T. 1. M., 2002.

In foreign doctrine and practice, it is recognized that the law of the payment currency (debt currency) can be successfully applied to determine the currency status of a legal relationship. The essence of the currency peg: if a transaction is concluded in a certain foreign currency, then in all currency matters it is subject to the legal order of the state to which this currency belongs.

The law of the currency of debt (currency of payment) is used to localize the contract, to establish its closest connection with the law of a particular state. The expression of the amount of debt in foreign currency in conjunction with other terms of the transaction (the place of performance is indicated in the state of the debt currency; the transaction is subject to the jurisdiction of this state) may show the intention of the parties to subordinate their transaction as a whole to the legal order of this state.

The legislation of individual states fixes the conflict binding of the law of the currency of payment. The law of Romania in relation to the regulation of relations of international private law of 1992 establishes (Article 126.1): "The currency of payment is determined by the law of the state that issued it"<14>. A similar provision is enshrined in Art. 147.1 of the Swiss Law on Private International Law 1987: "The law of the state of issue applies to the currency"<15>.

<14>International private law: foreign legislation / Comp. A.N. Zhiltsov, A.I. Muranov. M., 2001.
<15>There.

In the United Kingdom, in cases "where the judgment is given in respect of an amount expressed in a currency other than sterling ... the court may direct that the rate of interest applicable to the debt be such rate as the court thinks appropriate" (art. 1 of the UK Private International Law Act 1995)<16>. Thus, issues of the monetary content of an obligation denominated in foreign currency are decided on the basis of judicial discretion (which is directly enshrined in law). The court has the right to apply to this issue not only English law, but also the law of the state in whose currency the obligation is concluded.

<16>There.

The legal regulation of the circulation of securities can be argued as the central institution of private international monetary law. Securities are stock values; the turnover of securities (securities market) is the stock market. The concepts of the stock market and the securities market are the same. In the modern world financial system, the securities market is both a segment of the money market and the capital market. In a civilized market economy, the securities market is the main mechanism for the redistribution of monetary accumulations.

The securities market serves as an additional source of financing for the economy. The functioning of the stock market is realized through the movement of securities (fictitious capital). The securities market is functionally included in the loan capital market. The price of securities is one of the indicators financial condition economy, along with such indicators as state revenues and expenditures, public debt, inflation rate, interest rates, exchange rate, volume money supply <17>.

<17>See: Finance: Textbook / Ed. prof. S.I. Lushina, prof. V.A. Slepova. M., 2000.

The Russian doctrine does not single out the law of securities as an independent branch of law. In foreign doctrine, this concept has been used for a long time and has a clear definition.

The basis of regulatory regulation of relations in the securities market is civil law<18>. The norms of financial law have no less influence on the relations that develop over securities. The financial and legal provisions relating to the regulation of the sphere of the securities market are scattered across various sub-branches of financial law, which indicates the complex nature of the regulation of the stock market.

<18>See: Surkov A.N., Gorodniy V.I. Fundamentals of legal regulation of the securities market in Russian Federation: Proc. allowance / Under the total. ed. IN AND. Patrushev. M., 1998; Ganeev R.R. Fundamentals of legal regulation of the securities market: Nauch.-prakt. allowance. Kazan, 2000.

The sphere of budgetary law includes issues related to the circulation of state and municipal securities. Tax law covers the procedure and features of taxation of transactions with securities. Operations of banks with securities - the object of regulation of banking law. Currency law rules regulate the circulation of securities denominated in foreign currency. The doctrine singles out a system of new financial law, the structural elements of which are budget law, tax law, banking law, insurance law, currency law, investment law, stock law, legislation on the protection of competition in the financial services market, legislation on the securities market, legislation on financial control and audit activities, legislation on countering the laundering of proceeds from crime<19>.

<19>See: Tosunyan G.A., Vikulin A.Yu. Toward a new financial law // Financial law. 2003. N 6.

"The financial system ... includes the following links of financial relations: the state budget, extra-budgetary funds, state credit, insurance funds, the stock market, finances of enterprises of various forms of ownership ... among the links of the financial and credit system, the stock market occupies a significant place. It can be distinguished into an independent link, since the stock market is a special type of financial relations arising from the sale and purchase of special financial assets - securities. It can be argued that the stock market (securities market) is an independent financial institution<20>. In the domestic doctrine, an opinion is expressed about the presence in the modern legal system of an independent institution - stock law. This is explained, in particular, by the fact that "the number of financial instruments for the implementation of financial policy has increased, they have become more diverse. With their simultaneous universalization, instruments of a strictly targeted purpose have arisen. For example, the stock market became in the 90s a new global financial instrument with a clear purpose"<21>(V.K. Senchagov). The main component of stock law is the legislation on the securities market.

<20>See: Finance, money turnover and credit: Textbook / Ed. VC. Senchagova, A.I. Arkhipova. M., 2004.
<21>There.

It seems that stock law is a set of rules governing legal relations regarding the turnover of stock values. In stock law, independent institutions can be distinguished - the law of securities, exchange law. It is necessary to emphasize the complex, ambiguous nature of the norms of stock law - "the specifics of the regulation of financial markets are inherent in their nature, these are markets with" wide participation ", in their functioning, emphasis is placed on the involvement of a wide range of participants, including the population itself, this market through banking, stock, pension, insurance components covers the functioning of the entire economy of the state and at the same time, this market, especially its stock sector, is extremely subject to the influence of even minor political, economic or social events"<22>.

<22>Zlatkis B.I. Regulation of financial markets in the system of current reforms in the field government controlled// Finance. 2003. No. 12.

From the point of view of international private law, it is possible to include in its system the norms of fund law that regulate private relations regarding the circulation of fund values ​​related to the legal order of two or more states. In the PIL system, "international fund law" is an institution of international private monetary law and includes normative complexes aimed at regulating relations between private subjects of law regarding the international circulation of fund values. The term "international" in the context of the proposed concept means the legal connection of a legal relationship with the legal order of two or more states.

The concept of "international stock values" is not universally recognized in legal science, its legal content is not defined and legally regulated. Meanwhile, world practice has long been using this concept, putting different meanings into it. International stock values ​​are negotiable and non-negotiable securities, derivatives, other financial instruments, therefore the central part of international stock law is the law of securities. International stock values ​​are mainly traded on stock exchanges; thus, the norms of exchange law are partly included in the structure of international stock law.

The stable and efficient functioning of the international stock market is currently of particular relevance. This is due to the development of new technologies, the development and implementation of global capital-intensive and science-intensive projects, and the need to create especially large sources of financing. New information technologies have contributed to the emergence and development of electronic trading in stock values. Currently, electronic stock exchanges play a leading role in organizing the global turnover of stock values.

In the last quarter of the XX century. the need for liberalization of legislation regulating the national turnover of stock values, the structure of their market and the activities of national stock exchanges was clearly manifested. There was an urgent need to facilitate the admission of foreign investors and foreign securities to national stock markets, to allow banks and other financial institutions to participate in the internal and external circulation of stock values.

In the 80s of the XX century. in most of the developed countries of the world, cardinal legislative reforms were carried out (the reform of the English securities legislation in 1986 - the "big shake-up"). The reforms of the 1980s were aimed at pursuing a policy of deregulation, weakening state control, liberalization, and strengthening the independent status of self-regulatory organizations - national stock markets. Thanks to the policy of liberalization, the first international markets for stock values ​​and international stock exchanges appeared. Legislative reforms have strengthened the street securities market, which has become a pioneer in the field of organizing electronic trading in stock values.

However, by the end of the XX - beginning of the XXI century. Serious negative consequences of the deregulation policy manifested themselves, expressed in world financial and stock exchange crises (crisis of 1996-1998), major transnational bankruptcies (bankruptcy of Enron, Parmalat) and global financial scams. Significant changes have taken place in the structure of the global stock markets due to the need to develop an effective risk insurance mechanism, protect information, ensure its transparency and minimize the negative consequences of financial crises. The regulatory framework for the functioning of national stock markets in most developed countries at the beginning of the XXI century. again underwent significant changes (2001 - 2006 - the laws of the USA, Japan, Germany, Great Britain), already in the direction of strengthening state regulation relations between private entities regarding the circulation of stock values.

The specificity of international stock values ​​predetermines the originality of the international stock market. The main paradox is that international stock markets and international stock exchanges are not territorially separated from national markets and exchanges. The most famous and largest national stock exchanges are international at the same time (Luxembourg, Singapore, London, New York, Tokyo). At the same time, the activity of, for example, the London Stock Exchange as a secondary national market for stock values ​​is regulated by the relevant legislation of Great Britain, while the activity of the same London Stock Exchange as an international stock market (on which international stock values ​​are traded) is outside the scope of English laws.

This legal paradox gives rise to serious problems: in the same place, transactions are simultaneously made with stock values ​​of different nature - national (local and foreign) and international.

The regulation of international markets for stock values ​​and the activities of international stock exchanges is removed from the scope of national legal regulation. However, at the international level, there is still no convention mechanism that determines legal status world turnover of international stock values. Thus, there is a serious legal gap - one of the main directions of world economic activity (the circulation of stock values) is actually outside the legal field. Within the framework of international organizations, a paralegal system has developed - a set of resolutions-recommendations of various MMPOs and INGOs aimed at regulating the circulation of international stock values. Such regulation is an integral part of the lex mercatoria, the viability of which has been proved by the practice of its long and effective application in world trade.

Separate areas of relations legally connected with the legal order of two or more states form special regulatory complexes and require the use of special methods of regulation. First of all, this applies to the sphere of foreign economic activity, which includes transactions with stock values. The advantages of the lex mercatoria lie in providing maximum freedom of action to the participants in the international commercial turnover, however, the specifics of the turnover of international stock values ​​presumes the application of the imperative prescriptions of international monetary law.

On the this moment The principles of international commercial contracts of 1994/2004, the basic terms of delivery, the codification of international business customs produced by the International Chamber of Commerce (an integral part of the lex mercatoria) are successfully applied as a legal regulator of the world turnover of stock assets, but practice shows that such regulation is insufficient and is unable to ensure the maximum efficiency of international stock circulation. The basic postulates of the lex mercatoria can form the basis of international stock law, but soft law is not intended to regulate public law relations that make up a significant part of all legal relations in the world stock markets. Currency regulation in general and the regulation of stock activities in particular are state-powerful, centralized, mostly imperative regulation. In this regard, the leading role in the legal support of the global circulation of stock values ​​should be played by unified substantive and conflict of laws rules.

At present, there is an urgent need to determine the status of international stock values, to establish special legal parameters for their circulation, to distinguish between the legal regimes of national and international stock markets. This is the main goal of developing the main provisions of international fund law.

International fund law is a complex polysystemic legal institution; its normative structure is made up of public law rules with private law effect, contractual substantive law and conflict rules of private international law, and lex mercatoria prescriptions. It is premature to talk about the presence in the PIL system of a separate stable institution "international fund law", but we can confidently predict its development and formation. At present, within the framework of international private monetary law (part of the PIL system), one can single out the right of international circulation of securities.

The difference between scientific opinions on the relationship between national currency law and international currency law does not affect fundamentally the definition of the essence of international currency law and its connection with other branches of PIL, such as international commercial law, international investment law, international banking law, etc. In any case, regardless From the opinions expressed, we are dealing with systems of legal norms that regulate qualitatively different social relations, firstly, of a public law, and secondly, of a private law nature, i.e. relations various kinds. This circumstance is key in determining the essence international monetary law.

The works of Russian and foreign scientists draw attention to the complex, multidimensional nature of the system of international monetary law, where there are not only primary, but also secondary and other levels of currency regulation regimes, due to the specifics of international currency, credit and investment turnover as a turnover of global financial resources. With regard to international monetary law, the main branches within which the system of norms of currency regulation operates include international public, international private, international commercial, international banking, international investment law.

The very same system of legal norms of international monetary law is not an artificial formation. Its legal norms are united by a common object, which is the stability of the international monetary system. This unifying factor "cements" the interconnection and interdependence of the norms of international and national currency law. The consequence of the formation of international monetary law as a complex industry is the improvement of the norms of foreign exchange regulation and control of both public international law and private international law, their coordination, filling in the gaps in their systems, the introduction of new norms and even separate blocks of norms into the legal fabric of these systems.

The concept, subject and system of international monetary law are determined by the content of the conflict rules of the Articles of Agreement of the International Monetary Fund (Bretton Woods, July 22, 1944), conflict rules of various states, international public law and international private law rules developed by the IMF member states in the process their national rule-making, their judiciary and various international organizations in the monetary and financial sphere.

A conflict rule is such a rule, the binding of which does not name the law of a particular state, but formulates a general feature (rule), using which you can choose the appropriate law. Bilateral conflict rules are most often found in international bilateral agreements on foreign exchange settlements and lending. The binding of a two-sided conflict norm is called the attachment formula. It should be noted that it is the application of the attachment formula to a certain situation that means the choice of the norm of international monetary law, which can regulate the relevant currency legal relations specified in the bilateral conflict of laws rule.

For example, a special place in conflict regulation is given to Art. VIII, sec. 2(a) and sec. 3 Articles of the Agreement. Members of the IMF should not allow resident citizens to transfer "uncontrolled" means of payment in their own currency abroad to a foreign debtor, even if the parties have agreed to denominate the debt in foreign currency and pay in cash in a specially stipulated currency. Article VIII, sect. 2(a) states that "no member shall impose restrictions on the making of payments and transfers for current international transactions without the approval of the Fund".

Article VIII, sect. 3 states that no member participates in any discriminatory exchange rate arrangements or practices of multiple exchange rates, and if such agreements or practices exist, the IMF member concerned shall consult with the IMF on their gradual elimination. That is, Art. VIII of the Agreement, on the one hand, establishes the exchange control of the IMF, and on the other hand, prohibits restrictions on payments and transfers on current international transactions in order to eliminate unjustified difficulties, delay or impossibility of fulfilling international obligations, and also prohibits discrimination by introducing a plurality of exchange rates.

In essence, this article (like many other articles of the Agreement) is of a conflict (referential) nature with attachment either to the “case law of the IMF”, or to international customs of currency settlements, or to the substantive and conflict of laws rules of national currency legislation. Although each state has its own conflict law, the process of international legal unification of the norms, including conflict of laws, applied in currency contracts, has led to the fact that these norms are based on general model rules. These rules are called collision principles, or types of collision bindings.

Content subject and features systems the norms of international monetary law arise from the content of the Agreement, which in world practice is also called the "Code of International Good Faith Monetary Conduct". It is possible to single out the main directions of international legal currency regulation and the legal institutions of international monetary law, which reflect its subject and system.

• 1. Cancellation of currency restrictions by states – members of the IMF. With regard to restrictions on international payments, the members of the IMF assumed the obligation to introduce them only in agreement with the IMF. This obligation is reflected in Art. I (iv) and (y) of the Agreement, which provides for the need for the widest possible abolition of such restrictions. The agreement strongly opposes the practice of regulating international payments through unilateral measures or bilateral agreements.
• 2. Conflict private law regulation of foreign exchange transactions. Although the Agreement as a whole focuses on cooperation at the state level, according to Art. VIII, sec. 2(6), the conflict of laws rules of this article are designed to ensure, within the framework of private obligations relations, the effect of restrictions on the international movement of payments and capital of some IMF member countries to others with the help of administrative measures of currency regulation, provided that such restrictions do not contradict the Agreement. This approach is based on the recognition of the private law nature of the international movement of payments and capital, which the state wants and must influence by imposing restrictions.
• 3. Unification and harmonization of the norms of currency regulation and currency control in the states – members of the IMF for current foreign exchange transactions and foreign exchange transactions related to the movement of capital. The agreement limits the competence of the IMF in regard to foreign exchange controls. According to Art. VI, sec. 2, IMF member countries are free to restrict foreign exchange transactions related to the movement of capital, but should not restrict current transactions and delay the transfer of payments by imposing customs duties on them. The IMF Treaty gives a broad interpretation of the concept of "current transactions", in order to facilitate foreign exchange settlements in trade. However, it is emphasized that one of the "real goals" of the international monetary system is "the creation of framework conditions for stimulating ... the movement of capital between countries."
• 4. Legal regulation of control over the regime of floating exchange rates. In 1978, the IMF member countries abandoned the system of fixed exchange rates and established a system of managed floating rates. Monitoring the operation of the floating rate system was entrusted to the IMF.
• 5. Legal regulation of control over the monetary policy of the IMF member countries and ensuring the financing of balance of payments deficits. IMF members are provided with IMF funds so that they "may solve problems" of their balance of payments in accordance with IMF rules. With its "auxiliary agreements" the IMF contributes to solving the problems of the balance of payments of states, reducing the "danger" of introducing strict currency regulation measures.
• 6. Legal regulation of the regime of "special drawing rights" with external financing of the economies of countries – members of the IMF. Economic growth in developing countries and in a number of capital-importing states relies generally on external financing. Such financing is not only fraught with dependence on foreign creditors, but also makes the economy of capital-importing countries subject to the negative impact of price fluctuations in world markets and changes in the situation in international currency markets.

In the face of an unexpected downturn or a sharp increase in debt burdens, many capital-importing countries resort to tight foreign exchange controls to prevent an unwanted outflow of scarce foreign exchange resources from national economy and make the best use of cash. Measures are being taken to attract foreign currency. These measures are often preceded by futile attempts to find additional sources of external funding or eliminate bottlenecks through bilateral arrangements. Only member countries with strong economic and financial potential can cope with serious balance of payments difficulties without establishing controls on the international movement of payments and capital.

7. Creation by the IMF of an international legal system of multilateral currency settlements. The agreement obliges its members to abandon the discriminatory practice of multiple exchange rates, as protective measures for the stability of the global and national monetary system, IMF member states undertake to "buy balances (surpluses)" of their own currency from other IMF member countries by mutual agreement.

The agreement expressly obliges its participants to keep the objectives of the IMF in mind when conducting their monetary policy and, as far as circumstances permit, to accept all possible measures in order, together with other member countries, in trade and financial transactions to contribute to the establishment of freedom of international payments and to ensure monetary stability. States undertake to achieve the goals of stability of the system of multilateral foreign exchange settlements "to cancel existing restrictions if they are confident that they can achieve a non-deficit balance of payments without introducing foreign exchange restrictions.

8. International legal regime of delimitation and liberalization of international payments and foreign exchange transactions with international capitals. The IMF distinguishes between restrictions on current international payments and on the movement of capital, which is also true of the OECD, which has developed separate codes regarding the liberalization of international payments and international capital. These organizations traditionally focus on the liberalization of current international payments. It should not be surprising that the international legal regulation of currency convertibility in connection with current international payments has been developed more carefully than in relation to the movement of capital.

Basically, in the Russian literature on PIL, the concept of “credit and settlement relations with a foreign element” is used, and not MCHVP. International private currency law is a relatively new concept in domestic jurisprudence. It is worth noting that it has a somewhat paradoxical character, including both private and monetary law (currency law is a branch of public law). At the same time, its use is quite justified, since we are talking about foreign exchange financing of private legal activities.

International private monetary law is an independent branch of international private law, which has a stable character, a special subject of regulation. International private monetary law - ϶ᴛᴏ set of rules governing the financing of international commercial activities. Material published on http: // site
The concept of private international monetary law originated in German legal science and is currently accepted by the doctrine and practice of most states. At the heart of the institutions of the MCHVP is the dependence of the implementation of international settlement and credit relations on the monetary policy of the state.

Russian legislation completely lacks conflict regulation of private currency relations with a foreign element. This is a serious shortcoming of our legislation, since when resolving conflict issues, the need to apply the analogy of law and law constantly arises. Financing of international commercial transactions is carried out on a general basis through the application of the currency legislation of the Russian Federation, the norms of part two of the Civil Code, which regulate the specifics of civil law settlement relations. Excluding the above, the norms of international agreements governing relations in the field of financing foreign trade activities and international settlements are applied. Russia also participates in the 1997 Agreement on the Establishment of the CIS Payments Union.

Forms of financing international commercial activities - non-revolving financing, factoring, forfeiting, financial leasing. Financial (genuine) leasing is characterized by the fact that it covers a complex set of economic relations, the participants of which are three parties: a manufacturing company, a user company (employer), a leasing company (landlord) A leasing company under an agreement with a company- the user acquires the necessary equipment from the manufacturer and leases it to the user company. Leasing operations are carried out mainly by financial companies or companies that are branches of banks, credit and insurance organizations.

As a form of financing commercial contracts, financial leasing is a special kind of agreement that combines elements of a loan agreement and a property lease agreement.
It should be noted that the main goal of the 1988 Ottawa Convention on International Financial Leasing is to remove legal barriers caused by the difference in national regulation on the way of development of international financial leasing. The principles of the Convention are the basis for the legal regulation of financing international transactions through financial leasing.

The main form of commercial financing is ϶ᴛᴏ international factoring. The essence of international factoring is essentially that the financial corporation releases the exporter from the financial burden of the export transaction. The purpose of factoring is to achieve an optimal international division of labor. The financial corporation (factor) acts as an intermediary. The value of international factoring as an intermediary financial transaction lies in the satisfaction of the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the commercial account of the creditor. Violation of the terms of the agreement is a part of the offense, consisting in the acceptance of movable things. At the international level, this method of financing is regulated by the Ottawa Convention on International Factoring.

Forfaiting will be a variation of factoring. Factoring is mainly used to service transactions related to consumer goods, while forfaiting is used to service transactions related to machinery and equipment. The period of payment of obligations by the buyer for factoring is 3-6 months, and for forfaiting - 0.5-5 years. The factor does not take any risks on the transaction, and the forfait takes all the risks. The discount rate for factoring is 10–12%, and for forfaiting – 25–30%. The factor does not have the right to transfer monetary obligations to third parties, while the forfait has such a right.

8.2. International payments, currency and credit relations

International monetary relations - ϶ᴛᴏ relations that develop during the functioning of the currency in the world economy. It is worth noting that they arise in the process of the functioning of money in the international payment turnover. Do not forget that the monetary system is a form of organization and regulation of foreign exchange relations. There are national, regional and world monetary systems. The elements of the monetary system are the national currency unit, the exchange rate regime, the conditions for currency convertibility, the system of the foreign exchange market and the gold market, the procedure for international settlements, the composition and management system of gold and foreign exchange reserves, the status of national currency institutions.

Do not forget that monetary policy is a set of measures and legal norms that regulate at the state level the procedure for performing transactions with foreign exchange values, the exchange rate, the activities of the foreign exchange market and the gold market. It is important to note that one of the most common forms of monetary policy will be currency restrictions, which are government regulation of operations of residents and non-residents with currency values. Do not forget that currency restrictions on current operations of the balance of payments do not apply to freely convertible currencies. Do not forget that currency restrictions are fixed in the currency legislation and will be integral part currency control. Ultimately, currency restrictions adversely affect the development of export-import operations.

Do not forget that the exchange rate will be an important element of the monetary system, since international trade requires measuring the value of national currencies. Do not forget that the exchange rate is necessary for the mutual exchange of currencies in international trade, comparison of world and national prices, for the revaluation of foreign currency accounts. Do not forget that the exchange rate is an additional element of state regulation of the economy.

It is important to know that the majority of foreign exchange transactions take place in the foreign exchange markets. Do not forget that foreign exchange markets are official centers where foreign currency is bought and sold and other foreign exchange transactions are made. Do not forget that the foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions are made in the foreign exchange markets. The world's currency centers are concentrated in the world's financial centers (London, New York, Geneva, etc.). Operations with certain convertible currencies are carried out on regional and national currency markets.

Do not forget that foreign exchange transactions are divided into cash and urgent. Cash foreign exchange transactions (SPOT) - ϶ᴛᴏ cash transactions with immediate delivery of currency. These operations account for up to 90% of the volume of all foreign exchange transactions. Under SPOT transactions, currency is delivered to the accounts specified by the recipient banks. In practice, SPOT interbank foreign exchange transactions predominate, for which the wire transfer rate is applied. Urgent foreign exchange transactions (forward, futures) - foreign exchange transactions, in which the parties agree on the supply of foreign currency after a certain period at the rate fixed at the time of the transaction. Forward - ϶ᴛᴏ a contract for the supply of financial assets in the future. Transactions are concluded in over-the-counter markets; participants expect to receive the goods themselves. Futures - a transaction for the purchase and sale of commodities and financial assets - is concluded on stock and currency exchanges, most often not for the purpose of the final purchase and sale of goods, but to make a profit due to the subsequent resale of the futures. SWAP transactions - a type of foreign exchange transactions that combines elements of both cash and futures transactions (SWOP = SPOT + forward)

Do not forget that currency transactions in Russia are regulated by the currency legislation of the Russian Federation, which defines the concepts of foreign currency and currency values. Do not forget that currency values ​​- ϶ᴛᴏ foreign currency, securities in foreign currency, stock values ​​and other debt obligations in foreign currency, precious metals, natural gems. Do not forget that currency values ​​will be objects of civil rights and may be owned by both residents and non-residents. The right of ownership of currency values ​​is protected in the Russian Federation on a general basis. Residents - ϶ᴛᴏ individuals who have a permanent place of residence in the Russian Federation; legal entities, created under the legislation of the Russian Federation with a location on the territory of the Russian Federation, their branches and representative offices located outside the Russian Federation; official representative offices of the Russian Federation located outside its borders. Non-residents - ϶ᴛᴏ individuals who have a permanent place of residence outside the Russian Federation; foreign legal entities with a permanent location outside the Russian Federation, their branches and representative offices on the territory of the Russian Federation; official representations of foreign states on the territory of the Russian Federation.

Do not forget that foreign exchange transactions in the Russian Federation are divided into current and related to the movement of capital. Note that the current foreign exchange operations - import and export of foreign currency; obtaining and granting financial loans for up to 6 months; international Money transfers trade and non-trade. The list of current currency transactions will be exhaustive. Residents of the Russian Federation carry out current currency transactions without restrictions. Do not forget that foreign exchange transactions associated with the movement of capital are direct and portfolio investments; transfers to pay for the transfer of ownership of real estate; obtaining and granting deferred payment and financial loans for a period of more than 3 months; all other currency transactions that are not current. The list of currency transactions related to the movement of capital will be open. It must be remembered that such operations are carried out by residents in the manner prescribed by the Central Bank of the Russian Federation.

The main body of currency regulation in the Russian Federation will be the Central Bank of the Russian Federation. It is worth noting that it determines the scope and procedure for the circulation of foreign currency and securities in foreign currency in Russia. It is important to know that an important role in the implementation of monetary policy is played by commercial banks. Their main task is to provide financial services for the foreign economic activity of the clients of these banks. The norms of Russian currency legislation are of an administrative and legal nature, but at the same time they also have a civil law effect. These norms also apply to legal relations, which in ϲᴏᴏᴛʙᴇᴛϲᴛʙ and Russian conflict law are subject to foreign law. Foreign public law norms of currency law are very often recognized in courts and arbitrations if the actual composition of the transaction is related to the law of such a foreign state.

In most cases, the issue of applicable law is related to the extent to which national currency restrictions can be extraterritorial in nature, and can a transaction subject to currency restrictions be recognized as valid in another state? Here we are not talking about the application of foreign exchange law as such, but about the recognition (or non-recognition) of its civil law consequences. With regard to currency restrictions, conflict issues arise when the question is raised about the validity of a monetary obligation or the impossibility of its performance due to foreign exchange restrictions. Recognition of foreign exchange prohibitions is enshrined in the Charter of the IMF. Do not forget that currency transactions relating to the currency of a state and prohibited by its currency legislation cannot receive administrative or judicial protection in other states.

International settlements - ϶ᴛᴏ regulation of payments for monetary claims and obligations arising in the field of international civil legal relations; ϶ᴛᴏ payments for foreign trade operations. It is important to know that the scale and specialization of foreign economic activity, the financial position and business reputation of partners, the presence of correspondent banks are of great importance for international settlements. The means of payment for international settlements are the national credit money of the leading countries. National currencies, euros, and SDRs can be used as the basis for settlements. Factors affecting international settlements - currency legislation, international trade rules and customs, banking services, the terms of the contract and the loan agreement, etc. Attempts are being made to unify the regulation of international payments. In 2001, UNCITRAL drafted a Convention on the Assignment of Receivables in International Trade.

International credit relations - ϶ᴛᴏ relations of the parties, in which the creditor undertakes to transfer currency values ​​​​for use to the debtor, and the debtor undertakes to return them or provide the creditor with compensation with payment of interest on time and on the terms stipulated in the agreement. The following forms of international lending are used: on the basis of special interstate agreements, a clearing system of interstate settlements, with the help of commercial banks and banks with foreign participation, loans from international banking consortiums. It is worth saying that consortium agreements, agreements between groups of banks, can be used to formalize international credit relations.

8.3. Forms of international payments

The main forms of international payments will be advance payment, open account, bank transfer, letter of credit, collection. Advance payment - ϶ᴛᴏ advance payment for goods. The essence of the advance is essentially that the exporter receives a loan from the importer. Open account - ϶ᴛᴏ recurring payments upon receipt of goods, traditionally used for regular deliveries.
It is worth noting that the peculiarity of settlements in the form of an open account is that the movement of goods is ahead of the movement of money. Settlements are divorced from commodity deliveries and are connected with commercial credit. It is this form of payment that is especially beneficial for the importer. Bank transfer - an instruction from one bank to another to pay a certain amount to the transferee or to transfer funds from the account and on behalf of the transferor in favor of the transferee.

Letter of credit - ϶ᴛᴏ agreement between the issuing bank (executing bank) and the client (applicant of the letter of credit, beneficiary) Types of letter of credit - revocable, irrevocable, confirmed, unconfirmed, covered, uncovered, revolving, documentary, cash, payment, circular, compensatory. Requirements for letters of credit: all letters of credit must clearly indicate whether they are executed by immediate payment, installment payment, acceptance or negotiation; each letter of credit must specify the executing bank that is authorized to make payment, or acceptance of drafts, or negotiation. A transferable (transferable) letter of credit is a letter of credit, according to which the beneficiary has the right to ask the issuing bank that other persons, the second beneficiaries, could use the letter of credit.

In Russian law, settlements under a letter of credit are regulated by Art. 867–873 of the Civil Code. International relationships for settlements in letters of credit are regulated on the basis of the Uniform Customs and Practice for Documentary Letters of Credit 1993 and the Uniform Rules for Interbank Reimbursement for Documentary Letters of Credit 1996, unofficial codifications of international business usages produced by the ICC. Settlements in the form of documentary letters of credit are abstract. These relationships are legally independent of the underlying contract of sale.

Collection form of payment - ϶ᴛᴏ banking operation, in which the bank, on behalf of the client, receives payment from the importer for goods shipped to him or services rendered and credits this money to the exporter's account. Types of collection operations: net collection and documentary collection. Net collection - ϶ᴛᴏ collection of financial documents not accompanied by commercial documents. Documentary collection - ϶ᴛᴏ collection of financial documents accompanied by commercial documents, and collection of commercial documents not accompanied by financial documents.

Collection operations are regulated on the basis of the 1996 Uniform Collection Rules, an informal codification of international business customs. In Russian law, collection settlements are regulated by Art. 874–876 of the Civil Code.

International settlements are governed primarily by international custom (Uniform Rules for First Demand Guarantees 1992) and UNCITRAL (UNCITRAL Model Law on International Credit Transfers 1992)

8.4. International settlements using a bill of exchange

A bill (draft) is a document containing an unconditional order of the creditor (drawer) to pay a certain amount of money to the person named in the bill (payer) within the period specified in the bill

This is a written promissory note. The acceptor (importer or bank) is responsible for payment of the bill. The bill is an absolutely abstract obligation, completely divorced from the grounds for its occurrence. In essence, the bill has the unconditional ability to act as a universal equivalent (monetary unit)

Types of bills - bill of exchange (draft), simple, nominal, warrant, bearer. Bill of exchange - ϶ᴛᴏ a security containing a written order of the drawer (drawer) given to the drawee (drawer) to pay a certain amount of money to the first bill holder (remitter) A bill of exchange is an unconditional order. This type of bill will be the most common. It is important to note that one of the important features of a bill is endorsement: an endorsement, in ϲᴏᴏᴛʙᴇᴛϲᴛʙii with which a bill can be transferred to any other person. The endorsement gives the bill the property of transferability. An endorsement may be unconditional; any condition limiting it is considered unwritten.

As part of international practice, the bill appeared in the XII-XIII centuries. The wide distribution of the bill throughout the world predetermined the need for unification of bill of exchange law at the international level. The first such attempt was made at the beginning of the 20th century. at the Hague International Conference, culminating in the adoption of the Convention for the Unification of Law Concerning Bills of Exchange and Promissory Notes and the Uniform Charter (the documents did not enter into force)

In 1930, at the Geneva International Conference, three Conventions were signed: on a uniform law on a transferable and promissory note; on the resolution of certain conflict laws on transferable and promissory notes; on stamp duty on bills of exchange and promissory notes. These Conventions are based on bills of exchange legislation of the countries of the continental legal system. Their adoption made it possible to unify bill of exchange law not only in Europe, but also in some states of Asia, Africa and Latin America. The Geneva Convention on Promissory Notes and Bills of Exchange approved the Uniform Bill of Exchange Law (Annex to the Convention), which the participating States were obliged to enact in their territory.

The norms of the Geneva Conventions are dispositive in nature.
It should be noted that the main content of the Conventions is ϶ᴛᴏ unified conflict of laws rules.
It should be noted that the main goal is to resolve conflicts of bill laws. The system of main conflict bindings according to the Geneva Conventions:

1. the ability of a person to be bound by a bill of exchange and a promissory note is determined by his national law, references of both degrees may be used;
2. a person who does not have the ability to bind on a bill under his national law, is liable if the signature is made in the territory of the country, under the legislation of which ϶ᴛᴏ the person has such ability;
3. the form of a promissory note or a bill of exchange is determined by the law of the country where the bill is drawn;
4. the form of obligation under a bill of exchange and promissory note is determined by the law of the country in whose territory the obligation is signed;
5. if the obligation under the bill is not valid under the law of the state of the place of signing, but ϲᴏᴏᴛʙᴇᴛϲᴛʙ conforms to the legislation of the state where the subsequent obligation is signed, then the last obligation is recognized as valid;
6. each State Party has the right to establish that an obligation under a bill accepted by its citizen abroad is valid in respect of another of its citizens in the territory of the ϶ᴛᴏth state, if the obligation is accepted in a form that conforms to national law;
7. the obligations of the acceptor of a bill of exchange or the signatory of a promissory note are subject to the law of the place of payment under these documents;
8. the time limits for filing a claim in recourse are determined for all persons who put ϲʙᴏ and signatures, the law of the place where the document was drawn up;
9. the acquisition by the holder of a bill of exchange of the right to claim, on the basis of which the document was issued, is decided by the law of the place where the document was drawn up;
10. the form and terms of the protest, the forms of other actions necessary for the exercise or preservation of rights under a bill of exchange or a promissory note, are determined by the law of the country in whose territory the protest or ϲᴏᴏᴛʙᴇᴛϲᴛʙ actions are to be committed;
11. the consequences of the loss or theft of a bill are subject to the law of the country where the bill is to be paid.

Great Britain, the USA, other states of the common law system have not joined the Geneva Conventions. Today, there are two types of bills of exchange in international trade - Anglo-American (the English Bills of Exchange Act of 1882 and the Uniform Commercial Code of the United States) and a bill of the Geneva Convention type. Excluding the above, there is a whole group of countries that have not joined any of the existing systems of bill regulation.

For the most complete unification of bill of exchange law and smoothing out the main differences between the prevailing types of bills, UNCITRAL developed a draft Convention on International Bills of Exchange and International Promissory Notes. The convention was approved in 1988 by the UN General Assembly. The subject of regulation of the Convention is an international bill of exchange and an international promissory note, which have a double mark and ϲᴏᴏᴛʙᴇᴛϲᴛʙ are entitled: "International bill of exchange (UNCITRAL Convention)" and "International promissory note (UNCITRAL Convention)".

An international bill of exchange is a ϶ᴛᴏ bill, in which at least two of the five listed places located in different states are named:

1. issuing a bill of exchange;
2. indicated next to the name of the payer;
3. indicated next to the name of the recipient;
4. payment.

It is assumed that the place of issue of the bill or the place of payment is named in the bill and such a place is the territory of a state party to the Convention. An international promissory note is a ϶ᴛᴏ bill, in which at least two of the four listed places located on the territory of different states are named:

1. issuing a bill;
2. indicated next to the drawer's signature;
3. indicated next to the name of the recipient;
4. payment.

It is assumed that the place of payment is named in the bill and is located in the territory of the State Party. It is worth saying that the provisions of the UNCITRAL Convention are of a compromise nature: they take into account either the provisions of the Geneva Conventions, or the Anglo-American bill regulation, or the Convention introduces novelties into the law of bills. The UNCITRAL Convention does not apply to checks because (following the tradition of civil law) it does not treat a check as a type of bill of exchange (unlike common law)

In Russian legislation, the legal status of a bill is enshrined in Art. 142–149 of the Civil Code. Unfortunately, in domestic law there is no conflict regulation of bill relations. Since Russia will be a party to the Geneva Conventions and the UNCITRAL Convention, it can be concluded that to bill relations with a foreign element in ϲᴏᴏᴛʙᴇᴛϲᴛʙii with Art. 7 of the Civil Code, the norms of these international agreements are directly applied.

8.5. International payments using a check

A check is one of the types of securities and at the same time one of the types of payment documents. Check - ϶ᴛᴏ a security containing an unconditional order of the drawer to the bank to pay the amount specified in it to the holder of the check (clause 1 of article 877 of the Civil Code) Check drawer - ϶ᴛᴏ the owner of the bank account. Usually a check is drawn to a bank, where the drawer has funds that he can dispose of by means of a check. The check is paid at the expense of the drawer and cannot be accepted by the payer. The inscription on acceptance made on the check is considered non-existent. The check refers to monetary documents of a strictly established form (in the Russian Federation, a check sample is approved by the Central Bank of the Russian Federation)

The check must have a number of necessary details, the absence of which may lead to the recognition of the check as invalid and not payable, since the check is a strictly formal document. Details of the check - the name of the document "check" (check mark); a simple and unconditional offer to pay a certain amount to the bearer of a check (check order); the check order must be unconditional (the holder of the check is not obliged to present any documents or fulfill any obligations under the threat of invalidating the check); an indication of the payer (bank) who must make the payment, and an indication of the account from which the payment is made; check amount; the date and place of its compilation; signature of the drawer.

Since the check is already in the XIX century. began to play the role of one of the main means of international settlements, then in the first half of the XX century. an attempt was made to unify check law: in 1931, the Geneva check conventions were adopted (Convention establishing a uniform law on checks; Convention aiming to resolve certain conflicts of laws on checks; Convention on stamp duty in relation to checks) and Uniform check law (Appendix to Convention on a Uniform Law on Checks)
It is worth noting that the main content of these Conventions is unified conflict of laws rules that establish a system of conflict of laws regulation of check law:

1. the right of a person to be bound by a check is determined by his national law, it is possible to use deductions of both degrees;
2. if a person is not entitled to be bound by a check under his national law, he may be bound by a check abroad, if the law of that foreign state permits;
3. the circle of persons on whom a check can be issued is determined by the law of the country where the check must be paid;
4. the form of a check and the procedure for the occurrence of check obligations are determined by the law of the country where the check was signed, if it is sufficient to comply with the form required by the legislation of the country of the place of payment;
5. the time limit for presenting a check for payment shall be governed by the law of the place of payment;
6. the possibility of paying a check at sight, the right to accept a check and receive partial payment, the right to withdraw a check are determined by the law of the place of payment;
7. the consequences of the loss or theft of a check are governed by the law of the place of payment;
8. the forms and terms of the protest and other actions necessary for the exercise or maintenance of rights under the check are determined by the law of the state in whose territory the protest and ϲᴏᴏᴛʙᴇᴛϲᴛʙ actions are to be made.

The Geneva Check Conventions failed to completely unify check law - they, like the Geneva Conventions, do not involve common law countries.
It is worth noting that the main contradiction between continental and Anglo-American check regulation: Anglo-American law - a check will be a kind of bill, continental law - a check is independent view securities and negotiable documents. It is important to note that at the same time as the draft Convention on the international bill of exchange, UNCITRAL developed the draft Convention on the international check. In 1988, the International Check Convention was approved by the UN General Assembly. It is worth saying that the provisions of the ϶ᴛᴏth Convention are of a compromise nature. It is worth noting that they represent an attempt to unify the norms of continental and Anglo-American check law. The very understanding of a check ϲᴏᴏᴛʙᴇᴛϲᴛʙ corresponds to continental law: a check is not considered a type of bill.
It is worth noting that the main conflict bindings of a check in ϲᴏᴏᴛʙᴇᴛϲᴛʙ and with the Convention are personal law and the law of the place of registration of the act (act form)

In Russian legislation, settlements using a check are regulated by Art. 877–885 of the Civil Code. It is worth saying that there is no conflict regulation of check law issues. Since Russia does not participate in the Geneva check conventions (although the provisions of the Civil Code on settlements by checks fully comply with the norms of the Conventions), apparently, conflict regulation of these problems is possible based on the application of the analogy of the law - the Geneva bill conventions.

8.6. Legal specifics of monetary obligations

Almost all legal relations in private international law (with the exception of personal non-property, and even then not always) are accompanied by monetary obligations. For this reason, the currency status of the transaction is singled out - a set of issues that determine the legal status of monetary obligations in a legal relationship. In the legislation of many states there is a special, special conflict "currency" peg - the law of the debt currency (in Russian law there is no such peg). on the issue of inflation) is subject to the law of the state in whose currency the obligation is concluded (Introductory Law in the GGU) Except for the above, the currency peg in conjunction with other terms of the transaction is used to localize the contract - to establish the intention of the parties to subordinate the transaction as a whole to the legal order of the state, in the currency of which the deal is done.

Indicative in this respect will be court decisions issued in some states in connection with settlements on government bonded loans denominated in gold dollars. In the 1937 decision in the case of the International Association of Holders of British Crown Loans, the English House of Lords recognized that debts on British government bonds issued in New York in gold dollars were subject to American law. Similar judgments have been issued by the courts of Sweden and Norway.

The main issue of the content of monetary obligations is the question of the impact on them of changes in the purchasing power of money. In Great Britain in 1604 and in the Federal Civil Code the principle of "nominalism" was formulated: monetary obligations expressed in a certain amount are unchanged in terms of this amount, regardless of changes in the purchasing power of money. Initially, the ϶ᴛᴏt principle was applied only in internal calculations, but later its application was extended to monetary relations with a foreign element. The principle of nominalism will be a universally recognized principle; it is enshrined in national and international law. For example, the English Bill of Exchange Act of 1882, the Geneva Bills of Exchange Conventions of 1930 and the Geneva Check Conventions of 1931 establish that a bill and a check drawn in a foreign currency provide for payment at the rate on the date of maturity, and not at exchange rate on the day the bill or cheque. These acts provide for the calculation at face value. With any changes in foreign currency, the amount of a bill or check remains unchanged.

The principle of nominalism leads to the uncertainty of the value content of monetary obligations and does not meet the needs of international trade. The application of the ϶ᴛᴏth principle endangers the interests of the creditor and stimulates the conclusion of transactions in "weak" currencies. Today, the principle of nominalism will be optional and refers to the "implied" terms of the contract, it applies if there are no special protective clauses in the contract. The development of foreign economic activity implies the need to stabilize the value content of obligations, especially considering inflationary processes and their impact on the content of monetary obligations. For these purposes, numerous protective clauses and the concept of "conventional unit" have appeared.

The first type of safeguard clause was the golden clause. Its types:

1. a clause on the payment of some part of the debt in a certain gold coin (for example, payment of 100 US dollars in a US gold coin of standard weight and fineness at the time of the conclusion of the contract);
2. a clause on payment in banknotes, which will be in circulation on the day of payment, but in an amount equivalent to a certain weight of gold (for example, payment in US dollars in an amount equivalent to 5 g of standard gold at the time of conclusion of the contract)

The golden clause failed to become effective way guarantees of the value content of monetary obligations. Many states unilaterally declared this clause null and void for all concluded obligations (Germany in 1918, Great Britain in 1923, USA in 1933). The cancellation of the gold clause is associated with the transition from the gold exchange standard to paper money circulation. The State's right to annul the gold clause would be generally recognized; it is enshrined in international law, and in national legislation, and in judicial practice.

Today, monetary and financial conditions, which are a requisite of any foreign trade contract, can be used as a safety mechanism against inflationary processes. Do not forget that currency conditions include the establishment of: the currency of the price and the method of its determination, the currency of payment, the procedure for converting currencies in case of a mismatch between the currency of the price and the currency of payment, protective clauses.

Do not forget that the currency of the price is ϶ᴛᴏ the currency in which prices for goods (services) are determined. The price in the contract can be set in any currency: one of the participants in the transaction or a third country. Preference is given to freely convertible currencies of developed countries as the most stable. At the same time, such currencies are also subject to inflation, and fluctuations in their rates can reach 20-30%. Do not forget that the payment currency is ϶ᴛᴏ the currency in which the importer's obligation must be settled. It is appropriate to note that the best option is the coincidence of the currency of the price and the currency of payment. In this case, there is no need for any conversions, however, any currency can in principle be chosen as the payment currency. In case of instability of exchange rates, the price currency is set in the most stable currency, and the payment currency - in the currency of the importer. In case of a currency mismatch, it becomes necessary to recalculate the price and payment. The contracts indicate at what rate ϶ᴛᴏt will be recalculated.

If during the period between the signing of the contract and the payment on it, the exchange rate of the payment currency changes, then one party incurs losses, and the other makes a profit. The choice of the price currency itself can protect against currency risks, since the mismatch between the price currency and the payment currency simplest way currency risk insurance. The exporter bears the risk of price currency decrease, the importer bears the risk of its increase. It is worth saying that it is more profitable for the exporter to set the price in a "strong" currency, then by the time of payment, his revenue will be higher than that which was at the time of the transaction. It is worth saying that it is more profitable for the importer to set the price in a "weak" currency, then when paying, he will have to pay less than at the time of the conclusion of the contract. At the same time, it is difficult to use this protective measure: for some goods, the price is set in certain currencies, it is difficult to calculate the dynamics of exchange rates, the interests of the importer and exporter are opposite, and it is difficult to reach an agreement.

Another protective measure would be the simultaneous conclusion of export and import contracts in the same currency with approximately the same payment terms. In this case, export losses are offset by import profits, and vice versa. At the same time, it is practically impossible to achieve a complete balance between receipts of goods and payments. Apart from the above, under the conditions of the international division of labor, enterprises are dominated by either exports or imports. It is possible to reduce currency risks by concluding a contract in different currencies with opposite trends in exchange rates.

These methods of protection are of an auxiliary nature and in modern practice can be used as subsidiary measures. A more reliable way to protect against currency risks would be special protective clauses and hedging. Today, in general, special safeguard clauses can be used.

1. Do not forget that the currency clause. Do not forget that the payment currency is tied to a more stable currency, and the payment amount depends on the change in its exchange rate. It is worth saying that the term “conditional unit” is used to denote a more stable currency. Direct currency clause - the currency of the price and the currency of payment are the same, and another, stronger currency is used as a peg. A direct currency clause can be bilateral (the payment amount changes with any change in the exchange rate: both with an increase and a decrease) and unilateral (the payment amount changes only with a decrease in the exchange rate) Indirect currency clause - the currencies of the price and payment do not match. The price is fixed in a stronger currency, and the payment currency, as a weaker one, is tied to the price currency, i.e. the payment amount depends on the change in the exchange rate of both currencies.

2. A multi-currency clause is a more reliable way to insure currency risks. Do not forget that the payment currency is linked to several currencies, i.e. to the "basket of currencies". Accordingly, the payment amount varies depending on the change in the exchange rate of the payment currency in relation to the average exchange rate of several currencies. By the way, this clause is rarely used, since the calculation method is characterized by increased complexity. Much more often, conventional international units of account (SDR, ECU, euro) are used instead of a currency basket. SDRs were established by the IMF in 1967 as a safety mechanism to protect the creditor from the effects of inflation. Russian law (Article 317 of the Civil Code) provides for the possibility of using both currency and multicurrency clauses.

3. Escalator clause (sliding price clause) The contract includes a condition that the prices of the goods may be revised due to changes in the costs of its production.

4. Index clause (price revision clause) Prices for goods may be revised depending on the movement of market prices for the goods. Escalator and index protection clauses not only limit foreign exchange losses associated with changes in the exchange rate, but also protect against a fall in the purchasing power of national currencies due to inflation and rising prices.