GoJIL Vol. 2, No. 1 (2010)
Who Guards the Guardians: Legal Implications for the Operation of International Financial Institutions in Times of Financial Crisis
The impact of the current global financial crisis gravely affects not only States but also International Financial Institutions (IFIs). They are international organizations addressing financial and monetary issues such as development banks or monetary institutions and typically engage in lending operations with States or regulate their monetary policies. This contribution seeks to undertake a legal analysis of available responses for IFIs to increased insolvencies of their „typical clients" from a law of international organizations perspective.
Obviously, an IFI can be exposed to the risk of dissipation of assets as a creditor, or as a debtor when it is unable to fulfil its own financial obligations. Conceivable legal responses can take the form of either purely internal character or are "external" and thus involve third parties.
Internal measures are notably budgetary decisions in reaction to financial shortcomings. The typical handling of budgetary problems by "standard" IOs applies only partially to IFIs as they typically have more extensive capital demands. These clearly cannot be satisfied by membership contributions and thus expose IFIs to volatility risks on the financial market. Accordingly, in order to remedy the crisis-induced loss of all forms of "capital claims" of IFIs, standard mechanisms for ensuring compliance with membership payments will be imperfect. In addition, in exceptional cases, Member States can successfully invoke the turmoil of international financial markets to justify the non-performance of their membership obligations.
Any measure of external scope will have to respect immunity considerations according to which the operation of an IFI may not be impeded, such as by increasing its burdens, either financially or by national law. Consequently, resources of IFIs have "international character" and are in principle protected by immunity. Nonetheless, specifically the arguments of the UK House of Lords In re International Tin Council (22 January 1987, 77 ILR (1988)) support the view that IFIs can indeed be declared insolvent and that their assets can be subjected to liquidation according to national bankruptcy laws. Situations of financial stress certainly do not mitigate this tension.
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