International private law. Currency relations in private international law Currency relations in private international law

Basically, in the Russian literature on private private partnership, the concept of “credit and settlement relations with a foreign element” is used, rather than private private enterprise. International private currency law is a relatively new concept in domestic jurisprudence. It is worth noting that it has a somewhat paradoxical nature, including both private and currency law (currency law is a branch of public law). Moreover, its use is quite justified, since we are talking about currency financing of private law activities.

International private currency law is an independent branch of international private law, which has a stable character and a special subject of regulation. International private monetary law is a set of rules governing the financing of international commercial activities. The material was 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. The basis of the institutions of private foreign exchange is the dependence of the implementation of international settlement and credit relations on the foreign exchange policy of the state.

Russian legislation completely lacks conflict of laws regulation of private currency relations with a foreign element. This is a serious drawback of our legislation, since when resolving conflict of laws 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, regulating the specifics of civil settlement relations. Except for the above, the norms of international agreements governing relations in the field of financing foreign trade activities and international payments apply. Russia also participates in the Agreement on the Establishment of the CIS Payments Union of 1997.

Forms of financing international commercial activities - non-recourse financing, factoring, forfaiting, 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: the manufacturer company, the user company (tenant), the leasing company (lessor) The leasing company under an agreement with the company The user acquires the necessary equipment from the manufacturer and rents it out 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 is worth noting that the main goal of the Ottawa Convention on International Financial Leasing of 1988 is to eliminate legal barriers caused by differences in national regulation to the development of international financial leasing. The principles of the Convention are the basis for the legal regulation of the financing of international transactions through financial leasing.

The main form of commercial financing is international factoring. The essence of international factoring is essentially that the financial corporation relieves the exporter of 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 significance of international factoring as an intermediary financial transaction lies in the satisfaction by the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the creditor's commercial account. Violation of the terms of the agreement constitutes an offense consisting of the taking of movable things. At the international level, this method of financing is regulated in the Ottawa Convention on International Factoring.

Forfaiting will be a type 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 for payment of obligations by the buyer under factoring is 3–6 months, and for forfaiting – 0.5–5 years. The factor does not take on any risks in the transaction, while the forfait takes on all the risks. The discount rate for factoring is 10–12%, and for forfeiting – 25–30%. The factor does not have the right to transfer monetary obligations to third parties, but the forfeit has such a right.

8.2. International payments, currency and credit relations

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

We should not forget that foreign exchange policy is a set of measures and legal norms regulating at the state level the procedure for carrying out transactions with foreign currency 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 foreign exchange policy will be foreign exchange restrictions, which represent state regulation of transactions of residents and non-residents with foreign currency values. Do not forget that currency restrictions on current balance of payments transactions do not apply to freely convertible currencies. Do not forget that currency restrictions are enshrined in currency legislation and will be an integral part of currency control. Ultimately, currency restrictions negatively affect the development of export-import transactions.

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, and for the revaluation of accounts in foreign currency. Do not forget that the exchange rate is an additional element of state regulation of the economy.

It is important to know that most foreign exchange transactions take place in the foreign exchange markets. Do not forget that foreign exchange markets are official centers where the purchase and sale of foreign currency and other foreign exchange transactions are carried out. Do not forget that foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions are carried out in foreign exchange markets. World currency centers are concentrated in world financial centers (London, New York, Geneva, etc.) Transactions with certain convertible currencies are carried out in regional and national foreign exchange markets.

Do not forget that foreign exchange transactions are divided into cash and urgent. Cash foreign exchange transactions (CFOT) – ϶ᴛᴏ cash transactions with immediate delivery of currency. These transactions account for up to 90% of the volume of all foreign exchange transactions. Under SPOT transactions, currency is delivered to accounts specified by the receiving banks. In practice, interbank foreign exchange transactions SPOT predominate, for which the telegraphic transfer rate is applied. Urgent foreign exchange transactions (forward, futures) are foreign exchange transactions in which the parties agree on the delivery of foreign currency after a certain period at the rate fixed at the time of the transaction. Forward is a contract for the delivery of financial assets in the future. Transactions are concluded on over-the-counter markets; participants expect to receive the product itself. Futures - a transaction for the purchase and sale of commodities and financial assets - are concluded on stock and currency exchanges most often not for the purpose of final purchase and sale of goods, but to make a profit through the subsequent resale of the futures. SWAP transactions are a type of foreign exchange transactions that combine elements of both cash and forward transactions (SWAP = 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 precious stones. Do not forget that currency values will be objects of civil rights and can be owned by both residents and non-residents. The right of ownership of currency valuables is protected in the Russian Federation on a general basis. Residents – ϶ᴛᴏ individuals who have permanent 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 representative offices 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 current foreign exchange transactions are the import and export of foreign currency; obtaining and providing financial loans for a period of up to 6 months; international money transfers of trade and non-trade nature. 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 related to the movement of capital are direct and portfolio investments; transfers to pay for the transfer of ownership of real estate; obtaining and providing deferred payment and financial loans for a period of more than 3 months; all other currency transactions that are not current. The list of foreign exchange transactions related to capital movements will be open. It must be remembered that such operations are carried out by residents in the manner established by the Central Bank of the Russian Federation.

The main currency regulation body 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 commercial banks play a large role in the implementation of monetary policy. Their main task is financial services for foreign economic activities of 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 legal effect. The effect of these rules also extends to legal relations that, in connection with Russian conflict of 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 problem of applicable law is related to the extent to which national currency restrictions can have an extraterritorial 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 consequences. In relation to currency restrictions, conflict of laws issues arise when the question is raised about the validity of a monetary obligation or the impossibility of its fulfillment due to foreign currency restrictions. Recognition of foreign currency prohibitions is enshrined in the IMF Charter. 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 relations; ϶ᴛᴏ payments for foreign trade transactions. It is important to know that the scale and specialization of foreign economic activity, the financial situation and business reputation of partners, and the presence of correspondent banks are of great importance for international payments. The means of payment for international payments are national credit money of leading countries. National currencies, the euro, and SDRs can be used as the basis for calculations. Factors influencing international payments are currency legislation, international trade rules and customs, banking services, contract and loan agreement terms, etc. Attempts are being made to unify international payments. In 2001, UNCITRAL drafted a Convention on the Assignment of Receivables in International Trade.

International credit relations are relations between the parties, in which the creditor undertakes to transfer currency values to the debtor for use, and the debtor undertakes to return them or provide the creditor with compensation with payment of interest on the terms and conditions stipulated in the agreement. The following forms of international lending are used: on the basis of special interstate agreements, the clearing system of interstate settlements, with the help of commercial banks and banks with foreign participation, loans from international banking consortia. 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 – ϶ᴛᴏ advance payment for goods. The essence of an advance is essentially that the exporter receives a loan from the importer. Open account - periodic payments after 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. Payments are separated from commodity deliveries and are associated with commercial credit. It is this form of payment that is especially beneficial for the importer. Bank transfer is an order from one bank to another to pay the transfer recipient a certain amount or to transfer funds from the account and, on behalf of the transferor, in favor of the transfer recipient.

Letter of credit - an agreement between the issuing bank (executive 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 to be fulfilled by immediate payment, installment payment, acceptance or negotiation; Each letter of credit must indicate the executing bank that is authorized to make payment, or accept drafts, or negotiate. Transferable (transferable) letter of credit is a letter of credit under which the beneficiary has the right to ask the issuing bank to allow other persons, the second beneficiaries, to 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 relations for settlements in letter of credit form are regulated on the basis of the Uniform Rules and Customs for Documentary Letters of Credit 1993 and the Uniform Rules for Interbank Reimbursement under Documentary Letters of Credit 1996 - informal codifications of international business customs produced by the ICC. Settlements in the form of documentary letters of credit are of an abstract nature. These relationships are legally independent of the underlying sales contract.

Collection form of payment is a banking operation in which the bank, on behalf of the client, receives payment from the importer for goods shipped to him or services provided and credits this money to the exporter’s account. Types of collection operations: pure collection and documentary collection. Pure collection is the 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 transactions are governed by the 1996 Uniform Collection Regulations, an informal codification of international business customs. In Russian law, collection payments are regulated by Art. 874–876 of the Civil Code.

International settlements are regulated primarily by international custom (Uniform Rules for Demand Guarantees, 1992) and the ITUC (UNCITRAL Model Law on International Credit Transfers, 1992).

8.4. International payments using bills of exchange

Bill (draft) - a document containing an unconditional order of the creditor (drawer) to pay, within the period specified in the bill, a certain amount of money to the person named in the bill (remitee)

This is a written promissory note. The acceptor (importer or bank) is responsible for paying the bill. The necessary properties of the bill, which determine its specificity, will be abstractness, indisputability, and negotiability. A bill of exchange is an absolutely abstract obligation, completely divorced from the reasons for its occurrence. Essentially, the bill has the unconditional ability to act as a universal equivalent (monetary unit)

Types of bills – transferable (draft), simple, registered, order, present. A bill of exchange is a security containing a written order from the drawer (drawee) given to the payer (drawee) to pay a certain amount of money to the first holder of the bill (remitee). 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 of exchange is an endorsement: an endorsement, with which the bill of exchange can be transferred to any other person. Endorsement gives the bill of exchange the property of transferability. The endorsement may be unconditional; any condition limiting it is considered unwritten.

Within the framework of international practice, the bill of exchange appeared in the 12th–13th centuries. The widespread use of bills of exchange throughout the world predetermined the need to unify 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, which ended with the adoption of the Convention on the Unification of the Law Relating to 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 bills of exchange and promissory notes; on the resolution of certain conflict of laws regarding bills of exchange and promissory notes; on stamp duty on bills of exchange and promissory notes. These Conventions are based on the bill of exchange legislation of the countries of the continental legal system. Their adoption made it possible to unify bill law not only in Europe, but also in some countries in Asia, Africa and Latin America. The Geneva Convention on Promissory Notes and Bills of Exchange adopted the Uniform Bill of Exchange Law (Annex to the Convention), which member states were obliged to put into effect on their territory.

The norms of the Geneva Conventions are of a dispositive nature.
It is worth noting that the main content of the Conventions is unified conflict of laws rules.
It is worth noting that the main goal is to resolve conflicts of bill of exchange laws. System of basic conflict of laws provisions under the Geneva Conventions:

the ability of a person to be obligated under a bill of exchange and a promissory note is determined by his national law, references of both degrees may be used;
a person who does not have the capacity to be bound by a bill on the basis of his national law is liable if the signature is made in the territory of a country under the legislation of which the person has such capacity;
the form of a promissory note or a bill of exchange is determined by the law of the country where the bill is issued;
the form of obligation under a bill of exchange and a promissory note is determined by the law of the country in whose territory the obligation was signed;
if the obligation under a bill is not valid under the law of the state of the place of signing, but is valid under the law of the state where the subsequent obligation is signed, then the last obligation is recognized as valid;
Each participating state has the right to establish that the obligation on a bill of exchange accepted by its citizen abroad is valid in relation to another citizen of it in the territory of that state, if the obligation is accepted in a form consistent with national legislation;
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 for these documents;
the deadlines for filing a claim by way of recourse are determined for all persons who put their signatures by the law of the place where the document was drawn up;
the acquisition by the holder of a bill of exchange of the right of claim, on the basis of which the document was issued, is decided by the law of the place where the document was drawn up;
the form and timing of the protest, the forms of other actions necessary to exercise or maintain rights under a bill of exchange or promissory note, are determined by the law of the country in whose territory the protest or ϲᴏᴏᴛʙᴇᴛϲᴛʙ actions must be made;
the consequences of the loss or theft of a bill of exchange are subject to the law of the country where the bill of exchange must be paid.

Great Britain, the USA and other states of the common law system have not joined the Geneva Conventions. Today in international trade there are two types of bills of exchange - Anglo-American (English Bills Act of 1882 and the US Uniform Commercial Code) and a bill of exchange of the Geneva Convention type. Except for 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 existing types of bills of exchange, within the framework of UNCITRAL, a draft Convention on International Bills of Exchange and International Promissory Notes was developed. The Convention was approved in 1988 by the UN General Assembly. The subject of regulation of the Convention is international bills of exchange and international promissory notes, which have a double mark and are specifically entitled: “International bill of exchange (UNCITRAL Convention)” and “International promissory note (UNCITRAL Convention)”.

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

issuing a bill of exchange;
indicated next to the name of the payer;
indicated next to the name of the recipient;
payment.

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

issuing a bill;
indicated next to the signature of the drawer;
indicated next to the name of the recipient;
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 innovations into bill law. The UNCITRAL Convention does not apply to checks because (following the traditions of civil law) it does not consider a check to be a type of bill of exchange (unlike common law)

In Russian legislation, the legal status of a bill of exchange is enshrined in Art. 142–149 of the Civil Code. Unfortunately, in domestic law there is a complete absence of conflict of laws regulation of bill relations. Since Russia will be a party to the Geneva Conventions and the UNCITRAL Convention, we can conclude that to bill relations with a foreign element in accordance with Art. 7 of the Civil Code directly applies the norms of these international agreements.

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. A check is a security document containing an unconditional order from the drawer to the bank to pay the amount specified in it to the check holder (clause 1 of Article 877 of the Civil Code). The drawer is the owner of the bank account. Typically, a check is drawn on a bank where the drawer has funds that he can dispose of through the check. The check is paid at the expense of the drawer and cannot be accepted by the payer. An acceptance note placed on a check is considered non-existent. A check refers to monetary documents of a strictly established form (in the Russian Federation, a sample check is approved by the Central Bank of the Russian Federation)

A check must have a number of necessary details, the absence of which may lead to the check being declared invalid and not payable, since a check is a strictly formal document. Check details – 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 invalidation of 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; date and place of its preparation; drawer's signature.

Since the check is already in the 19th century. began to play the role of one of the main means of international payments, then in the first half of the 20th 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 aimed at resolving certain conflicts of laws on checks; Convention on Stamp Duty in relation to checks) and the 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:

the right of a person to be obligated by a check is determined by his national law, it is possible to apply exceptions of both degrees;
if a person does not have the right to be obligated by a check under his national law, he may be obligated by a check abroad if the legislation of that foreign state allows;
the circle of persons to whom a check can be issued is determined by the law of the country where the check must be paid;
the form of the check and the procedure for the occurrence of check obligations are determined by the law of the country where the check was signed, while it is sufficient to comply with the form required by the legislation of the country of the place of payment;
the period for presenting a check for payment is governed by the law of the place of payment;
the possibility of paying a check upon presentation, 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;
the consequences of the loss or theft of a check are regulated by the law of the place of payment;
the forms and timing of the protest and other actions necessary to exercise or preserve the rights under the check are determined by the law of the state in whose territory the protest and ϲᴏᴏᴛʙᴇᴛϲᴛʙ actions must be carried out.

The Geneva Check Conventions were unable 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 type of bill of exchange, continental law - a check is an independent type of securities and negotiable documents. It is important to note that simultaneously with the draft Convention on the International Bill of Exchange, a draft Convention on the International Bill of Exchange was developed within the framework of UNCITRAL. In 1988, the Convention on International Checks 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 rules of continental and Anglo-American check law. The very understanding of a check is inconsistent with continental law: a check is not considered a type of bill.
It is worth noting that the main conflict of laws links between a check and the Convention are personal law and the law of the place of registration of the act (form of the act)

In Russian legislation, settlements using a check are regulated by Art. 877–885 of the Civil Code. It is worth saying that there is a complete lack of conflict of laws regulation of check law issues. Since Russia does not participate in the Geneva Check Conventions (however, the provisions of the Civil Code on settlements by checks are completely ϲᴏᴏᴛʙᴇᴛϲᴛʙ the norms of the Conventions), apparently, conflict of laws regulation of these problems is possible on the basis of the application of an analogy of the law - the Geneva Bill of Exchange Conventions.

8.6. Legal specifics of monetary obligations

Almost all legal relations in private international law (with the exception of personal non-property ones, and even then not always) are accompanied by monetary obligations. For this reason, the currency statute of the transaction is highlighted - 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 of laws “currency” peg - the law of the currency of debt (in Russian law there is no such peg). The idea of this peg is essentially that an obligation expressed in foreign currency on all monetary issues (primarily 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 whose currency the deal is done.

Indicative in this regard will be court decisions made in some states in connection with settlements of government bond issues denominated in gold dollars. In the 1937 decision in the case of the International Association of Loan Holders against the British Crown, 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 decisions were made by the courts of Sweden and Norway.

The main issue of the content of monetary obligations is the issue 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 that amount, regardless of changes in the purchasing power of money. Initially, this principle was applied only in domestic settlements, but subsequently its application was extended to monetary relations with a foreign element. The principle of nominalism will be a generally recognized principle, it is enshrined in national and international law. For example, the English Bill of Exchange Act of 1882, the Geneva Bill of Exchange Conventions of 1930 and the Geneva Check Conventions of 1931 establish that a bill of exchange and a check drawn in a foreign currency provide for payment at the rate on the day of payment, and not at exchange rate on the day the bill or check was issued. These acts provide for settlement at par. With any changes in foreign currency, the amount of the bill or check remains unchanged.

The principle of nominalism leads to uncertainty in the value content of monetary obligations and does not meet the needs of international trade turnover. The application of this principle jeopardizes the interests of the creditor and stimulates the conclusion of transactions in “weak” currencies. Today, the principle of nominalism will be dispositive 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 taking into account 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 security clause was the “golden” clause. Its types:

a clause requiring payment of some portion of the debt in a specified gold coin (for example, payment of $100 in US gold coin of standard weight and fineness at the time of conclusion of the contract);
a clause on payment in banknotes that 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 gold clause failed to become an effective way to guarantee the value content of monetary obligations. Many states unilaterally declared this clause 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 right of the State to annul the gold clause will 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 an insurance mechanism against inflationary processes. Do not forget that currency conditions include establishing: the currency of the price and the method of determining it, the currency of payment, the procedure for converting currencies if the currency of the price and the currency of payment do not match, protective clauses.

Do not forget that the price currency is the currency in which prices for goods (services) are determined. The price in the contract can be set in any currency: one of the parties to the transaction or a third country. Preference is given to the easily convertible currencies of developed countries as the most stable. At the same time, such currencies are subject to inflation, and fluctuations in their exchange rates can reach 20–30%. Do not forget that the payment currency is the currency in which the importer’s obligation must be repaid. It is appropriate to note that the optimal option is the same price currency and payment currency. In this case, there is no need for any recalculation, however, in principle, any currency can be chosen as the payment currency. If exchange rates are unstable, the price currency is set in the most stable currency, and the payment currency is set in the importer’s currency. If the currencies do not match, it becomes necessary to recalculate the price and payment. The contracts indicate at what rate the conversion will be made.

If the exchange rate of the payment currency changes during the period between signing the contract and payment, one party incurs losses and the other makes a profit. The choice of price currency itself can protect against currency risks, since a discrepancy between the price currency and the payment currency is the simplest way to insure currency risk. The risk of a decrease in currency prices is borne by the exporter, and the risk of its increase is borne by the importer. 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 what it 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 upon payment he will have to pay less than at the time of concluding 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, losses on exports are offset by profits on imports, and vice versa. At the same time, it is almost impossible to achieve a complete balance between goods receipts and payments. Except for the above, in the conditions of the international division of labor, either exports or imports predominate among enterprises. Currency risks can be reduced by concluding a contract in different currencies that have 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, special protective clauses can generally be used.

1. Do not forget that the currency clause. Do not forget that the payment currency is pegged to a more stable currency, and the payment amount depends on changes in its exchange rate. It is worth saying that the term “conventional unit” is used to denote a more stable currency. Direct currency clause – the price currency and the payment currency are the same, and another, stronger currency is used as a peg. A direct currency clause can be two-sided (the payment amount changes with any change in the exchange rate: both an increase and a decrease) and one-sided (the payment amount changes only if the exchange rate decreases) Indirect currency clause - the currencies of price and payment do not match. The price is fixed in the stronger currency, and the payment currency, as the weaker one, is tied to the price currency, i.e., the payment amount depends on changes in the exchange rates 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 a “basket of currencies”. Accordingly, the payment amount changes depending on the change in the exchange rate of the payment currency in relation to the average rate of several currencies. By the way, this clause is rarely used, since the calculation methodology is highly complex. Much more often, instead of a currency basket, conventional international units of account (SDR, ECU, Euro) are used. SDRs were established by the IMF in 1967 as an insurance mechanism to protect the creditor from the consequences of inflation. Russian law (Article 317 of the Civil Code) provides for the possibility of using both currency and multi-currency clauses.

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

4. Index clause (price revision clause) Prices for goods can 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 exchange rates, but also protect against a decrease in the purchasing power of national currencies due to inflation and rising prices.

The main forms of organizing sea transportation are linear (regular) and tramp (irregular). International liner transportation is documented by a bill of lading. A bill of lading is a special receipt certifying the carrier’s acceptance of cargo for transportation by sea. The first attempt to define the international status of a bill of lading was made in the Brussels Convention for the Unification of Certain Rules Relating to Bills of Lading of 1924 (adopted under the auspices of the International Maritime Committee). The Convention came into force in 1931 under the name The Hague Rules 1924. These rules represent one of the main existing sources of unified rules governing property relations in the field of merchant shipping.
The key provisions of the Hague Rules are the rules on carrier liability. The rules establish a mandatory minimum of liability for the carrier and at the same time protect his interests: exceptions to the rules on liability are provided and the grounds are listed that exempt the ship and the carrier from liability. The Hague Rules are based on the principle of presumption of guilt of the carrier.
The Hague Rules are dispositive in nature and have a narrow scope of application. They contain a limited range of unified standards governing transportation. The problems of cabotage, charter, loading and unloading remained outside the scope of the Rules.
In 1968, the Visby Rules were adopted, an additional protocol to the Brussels Convention of 1924. The Visby Rules expanded the scope of the Hague Rules, providing for their application to any bill of lading. The Rules of 1968 established rules on strengthening the carrier’s liability, on increasing the limits of its liability, and on increasing the negotiability of the bill of lading. In 1979, a Protocol amending the 1924 Brussels Convention was adopted.
The UN Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules) has a wider scope than the Hague Rules (covering the carriage of animals, deck cargo and dangerous goods). The Hamburg Rules established an additional 13 mandatory elements of a bill of lading. All provisions of the Rules are mandatory in nature. The principle of presumption of guilt of the sea carrier, formulated in a general form (not in the form of a list of grounds excluding liability), has been established, and the limits of its liability have been expanded. The provisions on exemption from liability in case of navigation error have been excluded from the Hamburg Rules. Compared to the Hague Rules, the limitation period for claims against the carrier has been increased. The Hamburg Rules contain a whole conglomerate of rules on arbitration and jurisdiction: the rule on multiple jurisdictions, the possibility of jurisdiction at the choice of the plaintiff, the refusal of the practice of resolving the issue of jurisdiction on the basis of a prorogative agreement of the parties, the possibility of arbitration of a dispute in the presence of an arbitration clause.
The carriage of passengers by sea is regulated by the Athens Convention on the Carriage of Passengers and Their Luggage by Sea, 1974. The Convention defines the concept of international carriage of passengers. The Athens Convention adopted many of the rules of the Brussels Convention - the carrier's liability for damage, the principle of presumed guilt of the carrier, establishing the limits of his liability and exemption from liability in the event of the passenger's guilty behavior. The burden of proof lies with the carrier. The Athens Convention provides for the possibility of increasing the limits of the carrier's liability on the basis of an express written agreement between the passenger and the carrier. The provisions of the Convention introduce a new concept of “cabin baggage”. Currently, the IMO Legal Committee is developing a draft Protocol on Financial Security to the Athens Convention, which provides for changes in the procedure for calculating the limits of carrier liability.

7.6. Relationships related to the risk of navigation

General average is one of the most ancient institutions of maritime law (8th century BC). This concept is based on the definition of general average losses and the idea that expenses incurred reasonably and intentionally for the general salvation of all participants in maritime transport (i.e., the maritime enterprise), regardless of who incurred them, should be distributed among the “vessel” , cargo and freight" in proportion to the value of each property. General average (general average losses) are losses incurred by any of the participants in the maritime enterprise as a result of the throwing of part of the cargo overboard, etc. and are subject to distribution among all participants in the maritime enterprise.
Regulation of relations under general average involves the refusal to apply conflict of laws rules. The main role here is played by a private unofficial codification of uniform customs of merchant shipping and navigation - the York-Antwerp Rules of 1949 on General Average (as amended in 1950, 1974 or 1994). The York-Antwerp Rules are a set of international customs regarding what damages can be considered general averages and how their distribution is determined.
The application of the York-Antwerp Rules depends on a special agreement between the parties to the contract of carriage. Such an agreement is recorded in the terms of the charter party or bill of lading. The parties have the right, based on an agreement, to make changes and additions to the York-Antwerp Rules and apply them in any edition. Most of the provisions of national laws on general average are of a dispositive nature, which makes it possible to practically unlimitedly apply the York-Antwerp Rules. The legislation of some states provides for the subsidiary application of these rules.
The dispositive nature of national laws is the basis of the legal force of the York-Antwerp Rules on the interpretation of rules on general average. Their application excludes the effect of any laws or customs that contradict the Rules. The Jackson clause is an example of a change in the York-Antwerp Rules (a share of general average losses can be attributed to the cargo owner even when the cause of general average was a navigation error). The York-Antwerp Rules have a limited scope and do not regulate all issues of general average.
The absence of agreement between the parties on the application of the York-Antwerp Rules constitutes the basis for determining general average under national law. In this case, the need for conflict of laws regulation arises. The conflict principles used in general average differ in their content from the traditional conflict principles. For example, a special conflict of laws concept has been established “the port in which the ship ends its voyage” - this is the port in which the transportation of cargo by a foreign ship ceased, because this port is the port of destination, or because the ship was unable to continue transportation and forced to disembark at this port. The law of the port of unloading is the dominant conflict of law when determining the type of accident and the distribution of general average losses, since there is a close connection between the content of legal relations under general average and the port of unloading.
Relations regarding general average are also regulated at the conventional level: for example, according to the Montevideo Agreement on the Law Applicable to International Merchant Shipping, 1940, general average is established and distributed at the port of destination, and if it is not achieved, then at the port of discharge. An exception to this principle is the application of the national law of the ship, i.e. the law of the flag. It is possible to apply two different national laws to the same legal relationship under general average (Italian law, Bustamante Code). In global judicial practice, multiple qualifications of the law of the port of unloading cargo after an accident have been adopted: the law of the location of the thing, the law of unjust enrichment, the law of the place of execution of the contract.
Ship collisions and maritime rescue are regulated through multilateral international agreements. One of the oldest is the Brussels International Convention for the Unification of Certain Rules Regarding Collisions of Ships of 1910. The main content of the Convention consists of rules defining the conditions of property liability for the consequences of a collision of ships. Responsibility is based on the principle of fault. Victims may suffer losses. The Convention introduces the concept of “proportionate degree of guilt”. It has been established that in different cases of ship collision it is necessary to apply different conflict of laws (law of the place of collision, law of the flag, law of the court, law of the flag of the injured vessel). The Brussels International Convention for the Consolidation of Certain Rules Relating to Assistance and Rescue at Sea, 1910 (and its 1967 Protocol, expanding the scope of the Convention) contains unified substantive and conflict of law rules defining actions that constitute rescue. Collision bindings are the same as in case of a collision between ships. The application of the law of the flag of the vessel that provided assistance is provided. The general conflict of laws rule during rescue is the law of the flag of the ship that carried out the rescue.
The institution of limiting the liability of the shipowner is a specific institution of maritime law, due to the risk of navigation. The goal is to limit and reasonably distribute the consequences of such risk. The shipowner has the right to limit his liability to certain limits for all major obligations related to navigation. The Brussels International Convention for the Unification of Certain Rules for the Limitation of Liability of Owners of Seagoing Vessels, 1924, enshrines the principle of limiting the liability of a shipowner. However, the International Convention on the Limitation of Liability of Shipowners of 1957 expands the range of requirements for which the shipowner is not entitled to limit liability. This provision is related to the rules on rescue at sea and compensation for losses under general average.

Topic 8. PRIVATE INTERNATIONAL MONETARY LAW

8.1. Financing international business transactions

Basically, in the Russian literature on private private partnership, the concept of “credit and settlement relations with a foreign element” is used, rather than private private enterprise. MCVP is a relatively new concept in domestic jurisprudence. It has a somewhat paradoxical nature, including both private and currency law (currency law is a branch of public law). However, its use is quite justified, since we are talking about foreign currency financing of private legal activities.
Private private enterprise is an independent branch of private private enterprise, which has a stable character and a special subject of regulation. IPP is a set of rules governing the financing of international commercial activities. The concept of private legal practice originated in German legal science and is currently accepted by the doctrine and practice of most states. The basis of the institutions of private foreign exchange is the dependence of the implementation of international settlement and credit relations on the foreign exchange policy of the state.
Russian legislation completely lacks conflict of laws regulation of private currency relations with a foreign element. This is a serious drawback of our legislation, since when resolving conflict of laws 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, regulating the specifics of civil settlement relations. In addition, the norms of international agreements governing relations in the field of financing foreign trade activities and international payments are applied. Russia also participates in the Agreement on the Establishment of the CIS Payments Union of 1997.
Forms of financing international commercial activities - non-recourse financing, factoring, forfaiting, 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: the manufacturer company, the user company (tenant), and the leasing company (lessor). The leasing company, under an agreement with the user company, 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. The main purpose of the Ottawa Convention on International Financial Leasing of 1988 is to eliminate legal barriers caused by differences in national regulation to the development of international financial leasing. The principles of the Convention are the basis for the legal regulation of the financing of international transactions through financial leasing.
The main form of commercial financing is international factoring. The essence of international factoring is that a financial corporation relieves the exporter of the financial burden of an export transaction. The purpose of factoring is to achieve an optimal international division of labor. The financial corporation (factor) acts as an intermediary. The significance of international factoring as an intermediary financial transaction lies in the satisfaction by the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the creditor's commercial account. Violation of the terms of the agreement constitutes an offense of misappropriation of movable things. At the international level, this method of financing is regulated in the Ottawa Convention on International Factoring.
Forfaiting is a type 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 for payment of obligations by the buyer under factoring is 3–6 months, and for forfaiting – 0.5–5 years. The factor does not take on any risks in the transaction, while the forfait takes on all the risks. The discount rate for factoring is 10–12%, and for forfeiting – 25–30%. The factor does not have the right to transfer monetary obligations to third parties, but the forfeit has such a right.

8.2. International payments, currency and credit relations

International monetary relations are the relations that develop during the functioning of currency in the world economy. They arise in the process of the functioning of money in international payment circulation. The currency system is a form of organization and regulation of currency relations. There are national, regional and world monetary systems. Elements of the currency system - the national currency unit, the exchange rate regime, the conditions of currency convertibility, the system of the foreign exchange market and the gold market, the procedure for international payments, the composition and management system of gold and foreign exchange reserves, the status of national currency institutions.
Monetary policy is a set of measures and legal norms that regulate at the state level the procedure for carrying out transactions with foreign currency values, the exchange rate, the activities of the foreign exchange market and the gold market. One of the most common forms of foreign exchange policy is foreign exchange restrictions, which represent government regulation of transactions of residents and non-residents with foreign currency values. Currency restrictions on current account balance transactions do not apply to freely convertible currencies. Currency restrictions are enshrined in currency legislation and are an integral part of currency control. Ultimately, currency restrictions negatively affect the development of export-import transactions.
The exchange rate is an important element of the monetary system, since international trade requires measuring the value of national currencies. The exchange rate is necessary for the mutual exchange of currencies in international trade, comparison of world and national prices, and for the revaluation of accounts in foreign currency. The exchange rate is an additional element of state regulation of the economy.
Most foreign exchange transactions take place in foreign exchange markets. Foreign exchange markets are official centers where the purchase and sale of foreign currency and other foreign exchange transactions are carried out. Foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions take place in foreign exchange markets. World currency centers are concentrated in world financial centers (London, New York, Geneva, etc.) Transactions with certain convertible currencies are carried out in regional and national foreign exchange markets.
Foreign exchange transactions are divided into cash and urgent. Cash foreign exchange transactions (SPOT) are cash transactions with immediate delivery of currency. These transactions account for up to 90% of the volume of all foreign exchange transactions. Under SPOT transactions, currency is delivered to accounts specified by the receiving banks. In practice, SPOT interbank foreign exchange transactions predominate, for which the telegraphic transfer rate is applied. Urgent foreign exchange transactions (forward, futures) are foreign exchange transactions in which the parties agree on the delivery of foreign currency after a certain period at the rate fixed at the time of the transaction. A forward is a contract for the delivery of financial assets in the future. Transactions are concluded on over-the-counter markets; participants expect to receive the product itself. Futures - a transaction for the purchase and sale of commodities and financial assets - are concluded on stock and currency exchanges most often not for the purpose of final purchase and sale of goods, but to make a profit through the subsequent resale of the futures. SWAP transactions are a type of foreign exchange transactions that combine elements of both cash and forward transactions (SWAP = SPOT + forward).
Currency transactions on the territory of Russia are regulated by the currency legislation of the Russian Federation, which defines the concepts of foreign currency and currency values. Currency assets are foreign currency, securities in foreign currency, stock values and other debt obligations in foreign currency, precious metals, natural precious stones. Currency values are objects of civil rights and can be owned by both residents and non-residents. The right of ownership of currency valuables is protected in the Russian Federation on a general basis. Residents are individuals who have permanent 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 are 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 representative offices of foreign states on the territory of the Russian Federation.
Foreign exchange transactions in the Russian Federation are divided into current and related to capital movements. Current foreign exchange transactions – import and export of foreign currency; obtaining and providing financial loans for a period of up to 6 months; international money transfers of trade and non-trade nature. The list of current foreign exchange transactions is exhaustive. Residents of the Russian Federation carry out current currency transactions without restrictions. Foreign exchange transactions related to the movement of capital - direct and portfolio investments; transfers to pay for the transfer of ownership of real estate; obtaining and providing deferred payment and financial loans for a period of more than 3 months; all other currency transactions that are not current. The list of foreign exchange transactions related to capital movements is open. Such operations are carried out by residents in the manner established by the Central Bank of the Russian Federation.
The main body of currency regulation in the Russian Federation is the Central Bank of the Russian Federation. It determines the scope and procedure for the circulation of foreign currency and securities in foreign currency in Russia. Commercial banks play a major role in the implementation of monetary policy. Their main task is financial servicing of foreign economic activities of 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 legal effect. These rules 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 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 problem of applicable law is related to the extent to which national currency restrictions can have an extraterritorial 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 consequences. In relation to currency restrictions, conflict of laws issues arise when the question is raised about the validity of a monetary obligation or the impossibility of its fulfillment due to foreign currency restrictions. Recognition of foreign currency prohibitions is enshrined in the IMF Charter. 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 are the regulation of payments for monetary claims and obligations arising in the field of international civil relations; These are payments for foreign trade transactions. The scale and specialization of foreign economic activity, the financial position and business reputation of partners, and the presence of correspondent banks are of great importance for international payments. The means of payment for international payments are national credit money of leading countries. National currencies, the euro and the SDR, are used as the basis for calculations. Factors influencing international payments are currency legislation, international trade rules and customs, banking services, contract and loan agreement terms, etc. Attempts are being made to unify international payments. In 2001, UNCITRAL drafted a Convention on the Assignment of Receivables in International Trade.
International credit relations are relations between the parties in which the creditor undertakes to transfer currency values to the debtor for use, and the debtor undertakes to return them or provide the creditor with appropriate compensation with the payment of interest on the terms and conditions stipulated in the agreement. The following forms of international lending are used: on the basis of special interstate agreements, the clearing system of interstate settlements, with the help of commercial banks and banks with foreign participation, loans from international banking consortia. To formalize international credit relations, consortium agreements are used - agreements between groups of banks.

8.3. Forms of international payments

The main forms of international payments are advance payment, open account, bank transfer, letter of credit, collection. An advance is an advance payment for goods. The essence of an advance is that the exporter receives a loan from the importer. Open account is periodic payments after receipt of goods, as a rule, used for regular deliveries. The peculiarity of settlements in the form of an open account is that the movement of goods is ahead of the movement of money. Payments are separated from commodity deliveries and are associated with commercial credit. This form of payment is especially beneficial for the importer. A bank transfer is an order from one bank to another to pay the transfer recipient a certain amount or to transfer funds from the account and, on behalf of the transferor, in favor of the transfer recipient.
A letter of credit is an agreement between the issuing bank (executive bank) and the client (applicant of the letter of credit, beneficiary). Types of letters of credit – revocable, irrevocable, confirmed, unconfirmed, covered, uncovered, revolving, documentary, cash, payment, circular, compensation. Requirements for Letters of Credit: All letters of credit must clearly indicate whether they are to be fulfilled by immediate payment, installment payment, acceptance or negotiation; Each letter of credit must indicate the executing bank that is authorized to make payment or accept drafts or negotiate. A transferable letter of credit is a letter of credit under which the beneficiary has the right to ask the issuing bank that the letter of credit can be used by other persons - second beneficiaries.

Monetary policy is a set of measures and legal norms that regulate at the state level the procedure for carrying out transactions with foreign currency values, the exchange rate, the activities of the foreign exchange market and the gold market. One of the most common forms of foreign exchange policy is foreign exchange restrictions, which represent government regulation of transactions of residents and non-residents with foreign currency values. Currency restrictions on current account balance transactions do not apply to freely convertible currencies. Currency restrictions are enshrined in currency legislation and are an integral part of currency control. Ultimately, currency restrictions negatively affect the development of export-import transactions.

The exchange rate is an important element of the monetary system, since international trade requires measuring the value of national currencies. The exchange rate is necessary for the mutual exchange of currencies in international trade, comparison of world and national prices, and for the revaluation of accounts in foreign currency. The exchange rate is an additional element of state regulation of the economy.

Most foreign exchange transactions take place in foreign exchange markets. Foreign exchange markets are official centers where the purchase and sale of foreign currency and other foreign exchange transactions are carried out. Foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions take place in foreign exchange markets. World currency centers are concentrated in world financial centers (London, New York, Geneva, etc.) Transactions with certain convertible currencies are carried out in regional and national foreign exchange markets.

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

Currency transactions on the territory of Russia are regulated by the currency legislation of the Russian Federation, which defines the concepts of foreign currency and currency values. Currency assets are foreign currency, securities in foreign currency, stock values and other debt obligations in foreign currency, precious metals, natural precious stones. Currency values are objects of civil rights and can be owned by both residents and non-residents. The right of ownership of currency valuables is protected in the Russian Federation on a general basis. Residents are individuals who have permanent 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 are 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 representative offices of foreign states on the territory of the Russian Federation.

Foreign exchange transactions in the Russian Federation are divided into current and related to capital movements. Current foreign exchange transactions – import and export of foreign currency; obtaining and providing financial loans for a period of up to 6 months; international money transfers of trade and non-trade nature. The list of current foreign exchange transactions is exhaustive. Residents of the Russian Federation carry out current currency transactions without restrictions. Foreign exchange transactions related to the movement of capital - direct and portfolio investments; transfers to pay for the transfer of ownership of real estate; obtaining and providing deferred payment and financial loans for a period of more than 3 months; all other currency transactions that are not current. The list of foreign exchange transactions related to capital movements is open. Such operations are carried out by residents in the manner established by the Central Bank of the Russian Federation.

The main body of currency regulation in the Russian Federation is the Central Bank of the Russian Federation. It determines the scope and procedure for the circulation of foreign currency and securities in foreign currency in Russia. Commercial banks play a major role in the implementation of monetary policy. Their main task is financial servicing of foreign economic activities of 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 legal effect. These rules 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 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 problem of applicable law is related to the extent to which national currency restrictions can have an extraterritorial 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 consequences. In relation to currency restrictions, conflict of laws issues arise when the question is raised about the validity of a monetary obligation or the impossibility of its fulfillment due to foreign currency restrictions. Recognition of foreign currency prohibitions is enshrined in the IMF Charter. 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 are the regulation of payments for monetary claims and obligations arising in the field of international civil relations; These are payments for foreign trade transactions. The scale and specialization of foreign economic activity, the financial position and business reputation of partners, and the presence of correspondent banks are of great importance for international payments. The means of payment for international payments are national credit money of leading countries. National currencies, the euro and the SDR, are used as the basis for calculations. Factors influencing international payments are currency legislation, international trade rules and customs, banking services, contract and loan agreement terms, etc. Attempts are being made to unify international payments. In 2001, UNCITRAL drafted a Convention on the Assignment of Receivables in International Trade.

International credit relations are relations between the parties in which the creditor undertakes to transfer currency values to the debtor for use, and the debtor undertakes to return them or provide the creditor with appropriate compensation with the payment of interest on the terms and conditions stipulated in the agreement. The following forms of international lending are used: on the basis of special interstate agreements, the clearing system of interstate settlements, with the help of commercial banks and banks with foreign participation, loans from international banking consortia. To formalize international credit relations, consortium agreements are used - agreements between groups of banks.

Settlements between residents are carried out in the currency of the Russian Federation without restrictions.

Settlements between residents and non-residents in the currency of the Russian Federation are carried out in the manner established by the Central Bank of the Russian Federation.

The procedure for the acquisition and use of the currency of the Russian Federation in the Russian Federation by non-residents is established by the Central Bank of the Russian Federation in accordance with the laws of the Russian Federation.

Currency assets in the Russian Federation can be owned by both residents and non-residents.

In the Russian Federation, the right of ownership of currency values is protected by the state along with the right of ownership of other property.

Types of mandatory payments to the state (taxes, fees, duties and other gratuitous payments) in foreign currency are determined by the laws of the Russian Federation.

Residents have the right to purchase foreign currency on the domestic foreign exchange market of the Russian Federation in the manner and for the purposes determined by the Central Bank of the Russian Federation.

Buying and selling foreign currency in the Russian Federation are made through authorized banks in the manner established by the Central Bank of the Russian Federation. Buying and selling foreign currency bypassing authorized banks is not allowed.

The Central Bank of the Russian Federation, in order to regulate the domestic foreign exchange market of the Russian Federation, may set a limit for the deviation of the purchase rate of foreign currency from the rate of its sale, as well as carry out transactions for the purchase and sale of foreign currency.

Residents may have accounts in foreign currency with authorized banks.

Residents may have accounts in foreign currency in banks outside the Russian Federation in cases and under conditions established by the Central Bank of the Russian Federation.

The procedure for opening and maintaining resident accounts in foreign currency by authorized banks is established by the Central Bank of the Russian Federation.

Current foreign exchange transactions are carried out by residents without restrictions.

Foreign exchange transactions related to the movement of capital are carried out by residents in the manner established by the Central Bank of the Russian Federation.

Topic 9

International private currency law

Boguslavsky, M. M.

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

Lunts, L. A. Course in international private law. In 3 volumes. 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, credit and financial relations/ ed. L. R. Krasavina. M., 2002.

Securities market: textbook. manual for universities / ed. E. F. Zhukova. M., 2004.

General principles of private international monetary law

Currency law exists as public and private law, and “public currency law covers state monetary policy, and private currency law is the relationship between private individuals related to the circulation of currency values” (O. Kols). In the domestic private international law doctrine the term “private international currency law” is practically not used. The concept of “credit and settlement relations with a foreign element” is used. The term “private international 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 currency law is an independent institution (sub-branch) of private law, 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 legal nature associated with foreign legal order. The concept of "private international monetary law" originated in German jurisprudence; is currently accepted by the doctrine and practice of many states.

The subject of regulation of private international currency law is international currency relations that arise during the functioning of currency in the world economy. They represent a type of monetary relations that arise during the functioning of money in international circulation. “Currency” is usually called only that money that is recognized by the world community as universal equivalents (M. G. Stepanyan).

Under foreign currency means money belonging to the currency system of a country other than the one to whose law the obligation is subject (L. A. Lunts). The English Act 1882 defines foreign exchange as money other than the currency of Great Britain. Foreign currency also refers to 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 currency obligation must always be certain or determinable (L. A. Lunts). Foreign exchange obligations differ:

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

– banknotes that are a means of repaying a monetary obligation, – payment currency.

“The currency of the debt and the currency of payment (in an explicit or hidden form) are included in each obligation calculated in a certain amount. Sometimes they coincide (bill of £100 payable in London - pound sterling is the currency of the debt and the currency of payment); if, for example, the agreement 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 of exchange legislation of many countries there is a clause on “effective payment”, which implies payment of the bill only in the payment currency specified directly in the bill.

The possibility of exchanging national currency for the currency of any other state is decided according to national legislation. The main criterion in these operations is currency convertibility. Restrictions on currency convertibility are legal obstacles associated with the peculiarities of national currency regulation.

International monetary units are collective currencies. They differ from national currencies in issuer (issued by international monetary organizations) and in form (non-cash). An international monetary unit is an artificial currency unit, which is a conventional scale used to measure international debt obligations and payments (M. G. Stepanyan). SDR, ECU and Euro are used to service 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 as entries in the IMF accounts. SDRs are distributed among IMF member countries. The issue of SDRs is carried out in the form of non-cash transfers through entries in the accounts of countries participating in the SDR system. SDRs act as an alternative asset to gold or the US dollar; they perform certain functions of world money in regulating balances of payments and carrying out international payments with a “multi-currency clause” in SDRs (R. A. Razhkov). The value of the SDR was initially linked to gold, but since 1974 it 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 SDR rate also “floats” (G. Velyaminov). Along with the SDR, in international payments (especially in the field of international transport), 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.

On January 1, 1999, a single currency was introduced for the member countries of the European Union - the euro. Joining 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 should be below 60% of GDP or strive for this value;

– the country must demonstrate 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 on 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 Federal Law No. 173FZ of December 10, 2003 “On Currency Regulation and Currency Control.” Currency values– this is foreign currency, securities in foreign currency, stock values and other debt obligations in foreign currency. Currency values are objects of civil rights and can be owned by both residents and non-residents. The norms of Russian currency legislation are of an administrative and legal nature, but also have a private legal effect. These rules 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.

International private currency law is an independent branch of private international law, which has a stable character and a special subject of regulation. International private monetary law is a set of rules governing the financing of international commercial activities. The concept of private international monetary law originated in German legal science and is currently accepted by the doctrine and practice of most states. The basis of the institutions of private foreign exchange is the dependence of the implementation of international settlement and credit relations on the foreign exchange policy of the state.

Russian legislation completely lacks conflict of laws regulation of private currency relations with a foreign element. This is a serious drawback of our legislation, since when resolving conflict of laws 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, regulating the specifics of civil settlement relations. In addition, the norms of international agreements governing relations in the field of financing foreign trade activities and international payments are applied. Russia also participates in the Agreement on the Establishment of the CIS Payments Union of 1997.

Forms of financing international commercial activities - non-recourse 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: the manufacturer company, the user company (tenant), and the leasing company (lessor). The leasing company, under an agreement with the user company, 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. The main purpose of the Ottawa Convention on International Financial Leasing of 1988 is to eliminate legal barriers caused by differences in national regulation to the development of international financial leasing. The principles of the Convention are the basis for the legal regulation of the financing of international transactions through financial leasing.

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

Forfaiting is a type 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 for payment of obligations by the buyer under factoring is 3-6 months, and for forfaiting - 0.5-5 years. The factor does not take on any risks in the transaction, while the forfait takes on 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, but the forfeit has such a right.

International payments, currency and credit relations

Most foreign exchange transactions take place in foreign exchange markets. Foreign exchange markets are official centers where the purchase and sale of foreign currency and other foreign exchange transactions are carried out. Foreign exchange markets are a collection of banks, brokerage firms, corporations, etc. 85-95% of foreign exchange transactions are carried out in foreign exchange markets. World currency centers are concentrated in world financial centers (London, New York, Geneva, etc.) Transactions with certain convertible currencies are carried out in regional and national foreign exchange markets.

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

A collection form of payment is a banking operation in which the bank, on behalf of the client, receives payment from the importer for goods shipped to him or services provided and credits this money to the exporter’s account. Types of collection operations: pure collection and documentary collection. Pure collection is the collection of financial documents not accompanied by commercial documents. Documentary collection is the collection of financial documents accompanied by commercial documents, and the collection of commercial documents not accompanied by financial documents.

Collection transactions are regulated based on the 1996 Uniform Collection Regulations, an informal codification of international business customs. In Russian law, collection payments are regulated by Art. 874-876 of the Civil Code.

International settlements are regulated primarily by international custom (Uniform Rules for Demand Guarantees, 1992) and the ITUC (UNCITRAL Model Law on International Credit Transfers, 1992).

International payments using bills of exchange

The norms of the Geneva Conventions are of a dispositive nature. The main content of the Conventions is unified conflict of laws rules. The main goal is to resolve conflicts of bill laws. System of basic conflict of laws provisions under the Geneva Conventions:

the ability of a person to be obligated under a bill of exchange and a promissory note is determined by his national law, references of both degrees may be used;
a person who does not have the capacity to obligate a bill on the basis of his national law is liable if the signature is made in the territory of a country under the legislation of which this person has such capacity;
the form of a promissory note or a bill of exchange is determined by the law of the country where the bill is issued;
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;
if the obligation under the bill is not valid under the law of the state of the place of signing, but complies with the legislation of the state where the subsequent obligation is signed, then the last obligation is recognized as valid;
each participating State has the right to establish that an obligation under a bill of exchange accepted by its citizen abroad is valid in relation to another of its citizens in the territory of that State, if the obligation is accepted in a form consistent with national legislation;
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 for these documents;
the deadlines for filing a claim by way of recourse are determined for all persons who signed their signatures by the law of the place where the document was drawn up;
the acquisition by the holder of a bill of exchange of the right of claim on the basis of which the document was issued is decided by the law of the place where the document was drawn up;
the form and timing of the protest, the forms of other actions necessary to exercise or maintain rights under a bill of exchange or promissory note, are determined by the law of the country in whose territory the protest or corresponding actions must be carried out;
the consequences of the loss or theft of a bill of exchange are subject to the law of the country where the bill of exchange must be paid.

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

In order to most fully unify bill of exchange law and smooth out the main differences between existing types of bills of exchange, a draft Convention on International Bills of Exchange and International Promissory Notes was developed within the framework of UNCITRAL. The Convention was approved in 1988 by the UN General Assembly. The subject matter of the Convention is international bills of exchange and international promissory notes, which have a double label and are respectively entitled: “International bill of exchange (UNCITRAL Convention)” and “International promissory note (UNCITRAL Convention)”.

An international bill of exchange is a bill that names at least two of the following five places located in different countries:

issuing a bill of exchange;
indicated next to the name of the payer;
payment.

It is assumed that the place of issuance of the bill or the place of payment is named in the bill and such place is the territory of a state party to the Convention. An international promissory note is a bill in which at least two of the following four places are named in the territory of different states:

issuing a bill;
indicated next to the signature of the drawer;
indicated next to the name of the recipient;
payment.

It is assumed that the place of payment is named in the bill and is located in the territory of the state party. 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 innovations into bill law. The UNCITRAL Convention does not apply to checks because (following the traditions of civil law) it does not consider a check to be a type of bill of exchange (unlike common law).

In Russian legislation, the legal status of a bill of exchange is enshrined in Art. 142-149 of the Civil Code. Unfortunately, in domestic law there is a complete absence of conflict of laws regulation of bill relations. Since Russia is a party to the Geneva Conventions and the UNCITRAL Convention, we can conclude that to bill relations with a foreign element in accordance with Art. 7 of the Civil Code directly applies the norms of these international agreements.

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. A check is a security containing an unconditional order from the drawer to the bank to pay the amount specified in it to the check holder (Clause 1, Article 877 of the Civil Code). The drawer is the owner of the bank account. Typically, a check is drawn on a bank where the drawer has funds that he can handle through the check. The check is paid at the expense of the drawer and cannot be accepted by the payer. An acceptance note placed on a check is considered non-existent. A check refers to monetary documents of a strictly established form (in the Russian Federation, a sample check is approved by the Central Bank of the Russian Federation).

A check must have a number of necessary details, the absence of which may lead to the check being declared invalid and not payable, since a check is a strictly formal document. Check details - 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 invalidation of the check); indication of the payer (bank) who must make the payment and indication of the account from which the payment is made; check amount; date and place of its preparation; drawer's signature.

Since the check is already in the 19th century. began to play the role of one of the main means of international payments, then in the first half of the 20th century. an attempt was made to unify check law: in 1931 the Geneva Check Conventions (Convention establishing a uniform law on checks; Convention aimed at resolving certain conflicts of laws on checks; Convention on Stamp Duty in respect of checks) and the Uniform Check Law (Appendix to Convention Concerning a Uniform Law on Checks). The main content of these Conventions is unified conflict of laws rules that establish a system of conflict of laws regulation of check law:

the right of a person to be obligated by a check is determined by his national law, it is possible to apply exceptions of both degrees;
if a person does not have the right to be obligated by a check under his national law, he may be obligated by a check abroad if the legislation of that foreign state allows it;
the circle of persons to whom a check can be issued is determined by the law of the country where the check must be paid;
the form of the check and the procedure for the occurrence of check obligations are determined by the law of the country where the check was signed, while it is sufficient to comply with the form required by the legislation of the country of the place of payment;
the period for presenting a check for payment is governed by the law of the place of payment;
the possibility of paying a check upon presentation, 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;
the consequences of the loss or theft of a check are regulated by the law of the place of payment;
the forms and timing of the protest and other actions necessary to exercise or maintain rights under the check are determined by the law of the state in whose territory the protest and the corresponding actions must be carried out.

The Geneva Check Conventions were unable to completely unify check law - they, like the Geneva Conventions, do not involve common law countries. The main contradiction between continental and Anglo-American check regulation: Anglo-American law - a check is a type of bill of exchange, continental law - a check is an independent type of securities and negotiable documents. Simultaneously with the draft Convention on the International Bill of Exchange, a draft Convention on the International Bill of Exchange was developed within the framework of UNCITRAL. In 1988, the Convention on International Checks was approved by the UN General Assembly. The provisions of this Convention are of a compromise nature. They represent an attempt to unify the rules of continental and Anglo-American check law. The very understanding of a check corresponds to continental law: a check is not considered a type of bill of exchange. The main conflict of laws bindings of a check in accordance with the Convention are personal law and the law of the place of registration of the act (form of the act).

In Russian legislation, settlements using a check are regulated by Art. 877-885 of the Civil Code. There is no conflict of laws regulation of check law issues. Since Russia does not participate in the Geneva Check Conventions (however, the provisions of the Civil Code on settlements by checks fully comply with the norms of the Conventions), apparently, conflict-of-law regulation of these problems is possible based on the application of an analogy of the law - the Geneva Bill Conventions.

Legal specifics of monetary obligations

Almost all legal relations in private international law (with the exception of personal non-property ones, and even then not always) are accompanied by monetary obligations. In this regard, the currency statute of the transaction is highlighted - 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 of laws “currency” link - the law of the currency of debt (in Russian law there is no such link). The idea of this link is that an obligation expressed in foreign currency on all monetary issues (primarily 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). In addition, 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 whose currency the transaction was concluded.

Indicative in this regard are court decisions made in some states in connection with settlements of government bond issues denominated in gold dollars. In the 1937 decision in the case of the International Association of Loan Holders against the British Crown, 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 decisions were made by the courts of Sweden and Norway.

The main question 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 their amount, regardless of changes in the purchasing power of money. Initially, this principle was applied only in domestic settlements, but subsequently its application was extended to monetary relations with a foreign element. The principle of nominalism is a generally recognized principle; it is enshrined in national and international law. For example, the English Bill of Exchange Act of 1882, the Geneva Bill of Exchange Conventions of 1930 and the Geneva Check Conventions of 1931 establish that a bill of exchange and a check drawn in a foreign currency provide for payment at the rate on the day of payment, and not at the rate on the day the bill or check is drawn up. These acts provide for settlement at par. With any changes in foreign currency, the amount of the bill or check remains unchanged.

The principle of nominalism leads to uncertainty in the value content of monetary obligations and does not correspond to the needs of international trade turnover. The application of this principle jeopardizes the interests of the creditor and stimulates transactions in “weak” currencies. Currently, the principle of nominalism is dispositive 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 taking into account inflationary processes and their impact on the content of monetary obligations. For these purposes, numerous protective clauses and the concept of “conventional unit” appeared.

The first type of security clause was the “golden” clause. Its types:

a clause requiring payment of some portion of the debt in a specified gold coin (for example, payment of $100 in US gold coin of standard weight and fineness at the time of conclusion of the contract);
a clause on payment in banknotes that 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 gold clause failed to become an effective way to guarantee the value content of monetary obligations. Many states unilaterally declared this clause 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 and exchange standard to paper money circulation. The right of the State to annul the gold clause is universally recognized; it is enshrined in international law, and in national legislation, and in judicial practice.

Currently, monetary and financial conditions, which are a requisite of any foreign trade contract, are used as an insurance mechanism against inflationary processes. Currency conditions include establishing: the currency of the price and the method of determining it, the currency of payment, the procedure for converting currencies if the currency of the price and the currency of payment do not match, protective clauses.

Price currency is the currency in which prices for goods (services) are determined. The price in the contract can be set in any currency: one of the parties to the transaction or a third country. Preference is given to freely convertible currencies of developed countries as the most stable. However, such currencies are also subject to inflation, and fluctuations in their exchange rates can reach 20-30%. The currency of payment is the currency in which the importer's obligation must be settled. The best option is to match the price currency and the payment currency. In this case, there is no need for any recalculation, however, in principle, any currency can be chosen as the payment currency. If exchange rates are unstable, the price currency is set in the most stable currency, and the payment currency is set in the importer’s currency. If the currencies do not match, it becomes necessary to recalculate the price and payment. The contracts indicate at what rate this recalculation will be made.

If during the period between signing the contract and payment under it, the exchange rate of the payment currency changes, then one party suffers losses, and the other makes a profit. The choice of price currency itself can protect against currency risks, since a discrepancy between the price currency and the payment currency is the simplest way to insure currency risk. The risk of a decrease in currency prices is borne by the exporter, and the risk of its increase is borne by the importer. 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 what it was at the time of the transaction. It is more profitable for the importer to set the price in a “weak” currency, then upon payment he will have to pay less than at the time of concluding the contract. However, this protective measure is difficult to take advantage of: some goods are priced 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 is the simultaneous conclusion of export and import contracts in the same currency with approximately the same payment terms. In this case, losses on exports are offset by profits on imports, and vice versa. However, it is practically impossible to achieve a complete balance between goods receipts and payments. In addition, in the conditions of the international division of labor, either exports or imports predominate among enterprises. Currency risks can be reduced by concluding a contract in different currencies that have opposite trends in exchange rates.

These methods of protection are of an auxiliary nature and in modern practice are used as subsidiary measures. A more reliable way to protect against currency risks are special protective clauses and hedging. Currently, special protective clauses are mainly used.

1. Currency clause. The payment currency is pegged to a more stable currency, and the payment amount depends on changes in its exchange rate. To designate a more stable currency, the term “conventional unit” is used. Direct currency clause - the price currency and the payment currency are the same, and another, stronger currency is used as a peg. A direct currency clause can be two-sided (the payment amount changes with any change in the exchange rate: both an increase and a decrease) and one-sided (the payment amount changes only if the exchange rate decreases). Indirect currency clause - the currencies of price and payment do not match. The price is fixed in the stronger currency, and the payment currency, as the weaker one, is tied to the price currency, i.e., the payment amount depends on changes in the exchange rates of both currencies.

2. A multi-currency clause is a more reliable way to insure currency risks. The payment currency is linked to several currencies, i.e., to a “basket of currencies”. Accordingly, the payment amount changes depending on the change in the exchange rate of the payment currency in relation to the average rate of several currencies. This clause is rarely used, since the calculation methodology is highly complex. Much more often, instead of a currency basket, conventional international units of account (SDR, ecu, euro) are used. SDRs were established by the IMF in 1967 as a safety net to protect lenders from the effects of inflation. Russian law (Article 317 of the Civil Code) provides for the possibility of using both currency and multi-currency clauses.

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

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