Dispute Settlement Over Exchange Measures Affecting Trade and Investments: IMF, WTO, ICSID and Today’s Relevance of Safeguard Clauses

One of the risks that international economic law is facing is the inability to give consistent answers to actual needs. Coherence, consistency and predictability of international law rules are particularly relevant in a global world and market, where private actors are increasingly gaining importance. All the fields of international economic law are so intertwined that reaching consistent interpretations is particularly difficult. The overlapping of areas of competence among the main organizations can lead to disruptive conflicts of norms, as well as to excessive fragmentation or sectoralisation. This is clearly observable in international monetary law, where litigations over monetary measures have been brought before other fora because the IMF does not provide for a mechanism to settle international disputes. To ensure coherence and to avoid the coming into existence of conflicting rights and obligations for States which have ratified both the IMF Articles and trade and investment treaties, substantial and procedural linkages have been inserted in a number of provisions. Table of contents: 1. The relationship among international economic institutions as envisioned after World War II. – 2. Types of exchange measures. – 3. Exchange measures under the IMF Articles of Agreement. – 3.1. The limited scope of the IMF regulation. – 3.2. IMF safeguard provisions for balance-of-payments and security reasons. – 3.3. Legal effects of exchange measures inconsistent with the IMF Articles. – 4. Exchange measures and the WTO legal framework. – 4.1. Substantial links (regime borrowing) between the WTO and the IMF. – 4.2. Procedural links: the IMF’s expertise and interpretation power. – 5. Exchange measures and international investment law. – 5.1. The free transfer of funds provision. – 5.2. The current status of the balance-of-payments safeguard clauses in international investment agreements. – 5.3. Today’s relevance of the safeguard clauses in investment treaties: safeguard clauses vs. economic state of necessity.