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Rule of Law in International Monetary and Financial Law: Reviving Old Spectres

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European Yearbook of International Economic Law 2019

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 10))

Abstract

The tenth anniversary of the Lehman Brothers insolvency, which entailed the global economic crisis, calls for a critical reexamination of the relationship between law and finance (economics). Should law be treated as an instrument of economic growth—in accordance with economic theory? Or is it the economy that should be harnessed for the society within its socio-normative framework? Accordingly, what is the normative social expectation in regards of (economic) freedom and (economic) security? Not surprisingly such dilemmas, a characteristic feature of the post-modernity, resulted in the legitimacy crisis of international monetary and financial law, which in turn brought the Rule of Law (RoL) to the forefront of the current debate on the reform of international economic law. Although RoL may provide much needed assistance in our pursuit of a more sustainable growth and equitable society, it can only do so, if we learn from past mistakes. Hence, current policies of the IMF in respect of the RoL should be put in context of complex relationship between international economic law and international economics.

The author thanks the Kosciuszko Foundation for the support of research at Cornell University and Prof. Markus Krajewski for comments and suggestions.

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Notes

  1. 1.

    See for instance: Ball (2018), Kress et al. (2018), Andrews (2018), Mayer (2018), Demirgüç-Kunt (2018) and Meeks and Velu (2018).

  2. 2.

    Wetzer (2018) and Coyle (2018).

  3. 3.

    Skeel (2018).

  4. 4.

    J Langford, A decade after the 2008 crisis: Grudge-holding taxpayers and regulatory risks, Washington Examiner, 25 September 2018, https://washex.am/2EsHOuU; Taking stock on 10th anniversary of Lehman Brothers’ collapse, China Daily, 19 September 2018, https://bit.ly/2SRKPc7.

  5. 5.

    Liu (2018). Despite the usual disclaimer concerning attribution of author’s views, given the current interest in the RoL in international law paper seems like a publicity stunt. It does not address the substance of RoL and most certainly does not suggest any commitment on the IMF side to apply the respective norms in its practice.

  6. 6.

    Davis and Trebilcock (1999).

  7. 7.

    Pes (2007).

  8. 8.

    Tamanaha (1995) and Cao (1997).

  9. 9.

    Gardner (1982). It is worth noting that the ‘imperial law’ became a coined expression of the ahistorical reading of Law and Development, as if the movement started in and by the U.S. in the 1960s. One could trace, however, its roots back to the post-War modernisation efforts and beginnings of decolonisation.

  10. 10.

    Carty (1992), Faundez (1997) and McAuslan and Thome (1997).

  11. 11.

    Trubek and Santos (2006).

  12. 12.

    In parallel the field of law and finance developed, analysing the influence of law and institutional set-up on financial markets. It started with the seminal paper La Porta et al. (1996). For current dilemmas, see: Cottier et al. (2012). For a general overview of development in the field, see: Engelen (2003).

  13. 13.

    For a critical analysis of the CDF’s achievements, failures and challenges it creates for both the World Bank and the world’s poorest, see: Blake (2000).

  14. 14.

    Trubek and Santos (2006) and Chua (1998).

  15. 15.

    Cao (1997), Chantal (2008) and Lange (2005).

  16. 16.

    J. Gardner, quoted here on several occasions, was a Ford Foundation employee.

  17. 17.

    But not international organisations. Neither the World Bank nor regional banks contributed towards the Law and Development programs.

  18. 18.

    Fukuyama (1992).

  19. 19.

    Merryman (1977).

  20. 20.

    Black (1958).

  21. 21.

    Coase (1960).

  22. 22.

    Burg (1977).

  23. 23.

    Gardner (1982), p. 8.

  24. 24.

    Gardner (1982), p. 4.

  25. 25.

    Trubek (2003).

  26. 26.

    Gardner (1982), pp. 35–52 and 231–235.

  27. 27.

    Galanter and Trubek (1974).

  28. 28.

    UN GA Resolution Declaration for the Establishment of a New International Economic Order (A/RES/S-6/3201), as well as Programme of Action and a Charter of Economic Rights and Duties of States (A/RES/29/3281). Sacerdoti (2011).

  29. 29.

    Also called the impossible trinity: out of three desirable monetary policy goals—exchange rate stability, free movement of capital, autonomous monetary policy—only two are achievable at one time.

  30. 30.

    The concept of the embedded liberalism largely based on theoretical work of Karl Polanyi, The Great Transformation (1944). The post-war idea was to “re-embed” economy within society and social expectations, Rawi and Ruggie (2009).

  31. 31.

    Supernat (2004).

  32. 32.

    Whereas it is difficult to identify a single reason for the failure of the original Bretton Woods formula, one has to acknowledge the role of private capital markets. Establishment of Euromarkets (which rapidly expanded in the late 1960s and 1970s) and then recycling of petrodollars (in the 1970s) had to undermine either state monetary autonomy or the IMF par-value system. Eventually states dismantled the latter.

  33. 33.

    It is sufficient to note that deregulation was supported both by Republican presidents, including Ronald Reagan and Richard Nixon, and Democrats such as Jimmy Carter and Bill Clinton.

  34. 34.

    Trubek (2003), p. 9.

  35. 35.

    Not only was it far from acknowledging some form of liberal homogeneity in Western thinking about economics, and even further from neo-colonial conspiracy behind international investment flows, but even during this conference Williamson observed that the notion of consensus was too optimistic, as relatively homogenous groups of participating economists struggled to agree even on very basic issues, Williamson (2008).

  36. 36.

    Campbell (2000) and Bevir (2011).

  37. 37.

    World Bank, Governance and development, Report No. 10650 (1992), pp. 3–4. Coopération Internationale “Le développement: pour un débat politique” Dourdan, France 2000.

  38. 38.

    World Bank, Governance and development, Report No. 10650 (1992), p. 6.

  39. 39.

    World Bank, Governance and development, Report No. 10650 (1992), p. 8.

  40. 40.

    ‘In undertaking such work, the World Bank faces some inherent limitations: (…) the Bank᾿s legal mandate clearly delimits its areas of concern. (…) the Bank is rightly concerned with financial and economic accountability, but political accountability is (…) outside its mandate (…) With regard to the legal framework for development, the Bank᾿s concern is with its procedural and institutional aspects. The substantive elements of such a framework have political connotations that may sometimes lie outside the Bank᾿s mandate’, World Bank, Governance and development, Report No. 10650 (1992), pp. 50–51. On the World Bank see below Sect. 3.

  41. 41.

    When considering the development of international economic governance, one should recognise the significance of the alleged break of the transmission mechanism between the US government and administration due to, inter alia, administrative capture, Steward (1975) and Mashaw (2005).

  42. 42.

    World Bank, Governance—the World Bank’s experience, Report No. 13134, Washington 1994.

  43. 43.

    See footnote 35 above.

  44. 44.

    At the same time, such arguments point towards a particular convergence between the market approach and the conservative approach to human rights (property rights, fair treatment of foreign investors, strong police, and law and order) rather than the liberal one (FET, human rights, and substantive content), Carothers (2009).

  45. 45.

    Trubek and Santos (2006), pp. 12–13.

  46. 46.

    Which does not mean that there were no internal divisions. See analysis of the tension within the WB favouring different approaches to the rule of law: Santos (2006).

  47. 47.

    Shihata (1991), pp. 53–96.

  48. 48.

    Shihata (1991), p. 85.

  49. 49.

    Some contested such a reading, suggesting that it may be still limited to formal aspects, even if Tung’s definition remains ‘ambiguous’ from a legal positivist perspective, Barron (2005).

  50. 50.

    World Bank, Worldwide Governance Indicators, http://bit.ly/2iY2WuB.

  51. 51.

    World Bank, Legal and Judicial Reform: Strategic Directions, Legal Vice Presidency World Bank 2002.

  52. 52.

    World Bank, Rule of Law, http://bit.ly/2kedX02.

  53. 53.

    World Bank, Legal and Judicial Reform: Strategic Directions, Legal Vice Presidency World Bank 2002.

  54. 54.

    EIU—Economist Intelligence Unit Riskwire & Democracy Index, GWP—Gallup World Poll, HWR—Heritage Foundation Index of Economic Freedom, IPD—Institutional Profiles Database, WEI—World Economic Forum Global Competitiveness Report, WMO—Global Insight Business Conditions and Risk Indicators.

  55. 55.

    World Bank, Legal and Judicial Reform: Strategic Directions, Legal Vice Presidency World Bank 2002.

  56. 56.

    EBRD/BIICL, The Importance of the Rule of Law and Respect for Contractual Rights in Transition Countries, World Bank 2003.

  57. 57.

    IMF, Review of the Fund’s Experience in the Governance Issues, IMF 2001, p. 11.

  58. 58.

    IMF, Partnership for Sustainable Global Growth Interim Committee Declaration, IMF 1996.

  59. 59.

    IMF, Review of the Fund’s Experience in the Governance Issues, IMF 2001, p. 3.

  60. 60.

    IMF, The IMF and Good Governance. Factsheet, IMF 2016. Also, statements by former Managing Directors of the IMF: M. Camdessus, Old Battle and New Challenges: a Perspective on Latin America, speech at the Europe-Latin American Convention, Bordeaux, October 20, 1997; H. Köhler, Building Shared Prosperity in the Americas, speech at the Special Summit of Americas, Monterrey, January 12, 2004.

  61. 61.

    IMF, Partnership for Sustainable Global Growth Interim Committee Declaration, IMF 1996; IMF, Good Governance. The IMF’s Role, Washington 1997.

  62. 62.

    IMF, The Role of the IMF in Governance Issues: Guidance Note (Approved by the IMF Executive Board, July 25, 1997), IMF 1997.

  63. 63.

    Thus indirectly, the norms adopted by the Basle Committee on Banking Supervision (BCBS), inter alia, on transparency, reporting and supervision became an important element of international financial institutions’ understanding of the Rule of Law.

  64. 64.

    IMF, Review of the Fund’s Experience in the Governance Issues, IMF 2001, p. 5.

  65. 65.

    IMF, Review of the Fund’s Experience in the Governance Issues, IMF 2001, p. 10.

  66. 66.

    BERI—Business Environment Risk Intelligence, DRI—Standard & Poor’s DRI, FHNT—Freedom House, GCS—Global Competitiveness Survey, HF—Heritage Foundation, PRS—Political Risk Services, WCY—World Competitiveness Report, WDR—World Development Report.

  67. 67.

    Fredriksson and Mani (2002), p. 23. The study uses measures from Kaufmann et al. (1999), p. 30 (and another IMF Working Paper by the same authors, quoted below).

  68. 68.

    IBRD Articles of Agreement, Article IV(10): The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article. The IMF statute does not contain similar provision.

  69. 69.

    Notably, short-lived, the reactivation of the UN Security Council.

  70. 70.

    Grzybowski (1990), p. 284.

  71. 71.

    EBRD, Procedures to implement the Political Aspects of the Mandate of the European Bank for Reconstruction and Development, EBRD 2013.

  72. 72.

    Linarelli (2014), pp. 402–408.

  73. 73.

    Linarelli (2014), p. 404.

  74. 74.

    Kaufmann et al. (1999), p. 31. The CEER index is also included in the World Bank’s RoL index. However, due to its narrow geographical scope, it is classified as a ‘non-representative source’ and so it was not mentioned above.

  75. 75.

    As the authors of the ICRG, the PRS Group states that the methodology is ‘used consistently by researchers at the IMF, and has been acclaimed in such publications as Barron’s, The Economist, and The Wall Street Journal, PRS, International Country Risk Guide (ICRG), http://bit.ly/2j8MLy0. In fact, in another publication under EBRD auspices, the author indirectly based his research on the ICRG, Dietrich (2002), pp. 57–61.

  76. 76.

    PRS, International Country Risk Guide Methodology, http://bit.ly/2iY6o8i.

  77. 77.

    IMF, Review of the Fund’s Experience in the Governance Issues, IMF 2001, pp. 45, 46, 51, 53.

  78. 78.

    Central banks’ autonomy and reliance on markets was true at least for the Victorian period and from the 1980s until the global financial crisis. Not so much in the original Bretton Woods period, C. Goodhart, The Changing Role of Central Banks, BIS Working Papers No 326 (2010).

  79. 79.

    Christodoulou (2005), pp. 183–184.

  80. 80.

    J. Sanusi, Central banking authority, economic stability and the rule of law, Paper presented by Dr Joseph O Sanusi, Governor of the Central Bank of Nigeria, at the Ninth Annual Harvard International Development Conference, Boston, 4 April 2003, http://bit.ly/2jME1y8.

  81. 81.

    CJEU, Case C-62/14, Gauweiler, ECLI:EU:C:2015:400. For analysis of the case and its supremacy in EU law aspects, see: Fabbrini (2016).

  82. 82.

    BVerfG, Order of the Second Senate of 14 January 2014—2 BvR 2728/13, paras. 84–87: “the prohibition of monetary financing of the budget enshrined in Art. 123 TFEU also includes a prohibition of bypassing (a). The OMT Decision is likely to violate this prohibition as well (b).

    a) Art. 123 TFEU and Art. 21.1. ESCB Statute forbid the purchase of government bonds “directly” from the emitting Member States, i.e. the purchase on the primary market. This prohibition is, however, not limited to this interdiction, but is an expression of a broader prohibition of monetary financing of the budget (…) Union law recognises the legal concept of bypassing as do the national legal systems. It is ultimately based on the principle of effectiveness (“effet utile”) and has repeatedly been alluded to in the Court of Justice’s jurisprudence (…)

    b) Also in the present context, the Court of Justice has (in the Pringle case) largely focused on the objective pursued by the provision for the interpretation of Art. 125 TFEU (…) and thus conducted a teleological interpretation. It seems obvious that this must also apply to the interpretation of Art. 123 TFEU, and that the prohibition of the purchase of government bonds directly from the issuing Member States may not be circumvented by functionally equivalent measures. (…)

    c) In addition to the above-mentioned aspects (…) the following aspects – at least when taken together – also indicate that the OMT Decision aims at a circumvention of Art. 123 TFEU and violates the prohibition of monetary financing of the budget: The willingness to participate in a debt cut with regard to the purchased bonds (aa), the increased risk of such a debt cut regarding the purchased government bonds (bb), the option to keep the purchased government bonds to maturity (cc), the interference with the price formation on the market (dd), and the encouragement of market participants to purchase the bonds in question on the primary market (ee).”, https://bit.ly/1JNSayy.

  83. 83.

    CFS, CFS 2012-2013 Rule of Law Index (RLI), http://bit.ly/2j8Xk3Z.

  84. 84.

    For a comprehensive comparison between various approach to such global constitutionalism, see: Petersmann (2012).

  85. 85.

    Connelly (2000).

  86. 86.

    M. Menkes, Culture: the Creator and the Creation of International Investment Law, paper at the European Society of International Law and International Law Association conference ‘UNESCO World Heritage Between Education And Economy. A Legal Analysis’, Ravenna, October 27–28, 2016.

  87. 87.

    See the works of the International Law Association committee on the Rule of Law and International Investment Law, Conference Report, Sydney 2018, https://bit.ly/2N4ZxL5.

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  1. Warsaw School of Economics, Warsaw, Poland

    Marcin J. Menkes

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  2. Faculty of Law, University of Erlangen-Nuremberg, Erlangen, Germany

    Markus Krajewski

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Menkes, M.J. (2019). Rule of Law in International Monetary and Financial Law: Reviving Old Spectres. In: Bungenberg, M., Krajewski, M., Tams, C.J., Terhechte, J.P., Ziegler, A.R. (eds) European Yearbook of International Economic Law 2019. European Yearbook of International Economic Law, vol 10. Springer, Cham. https://doi.org/10.1007/8165_2019_32

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