Worldwide: What Happens If Greece Defaults To The IMF?

The prospect of Greece's potential default to the International Monetary Fund and European Union lenders and de facto exit from the EU single currency looms larger day by day. The next week—until the June 30 repayment due date to the IMF—will be filled with high stakes political brinkmanship on all sides. The IMF has raised the stakes by clarifying that there is no grace period beyond the June 30 deadline. If default were to take place, the expectation is that the European Central Bank will cut off emergency liquidity support to the Greek banking system and that the Greek authorities will have little choice but to impose extensive capital and exchange controls to stem the capital flight that would be expected otherwise to ensue. Already €4 billion were reported to have been drawn from the Greece banking system last week.

The financial markets appear less jittery this time round about the prospect of a Greece exit from the EU single currency system (Grexit). They have had a few years to manage the financial risks and emotional anxieties of contagion. However, significant legal and financial consequences, such as from counterparty defaults, bankruptcies and potential triggering of credit default swaps need to be analyzed.

This note focuses on a legal consequence that arises from provisions of the IMF's Articles of Agreement, which is an international treaty binding in each of the IMF's 188 member countries. A default by Greece on the €1.6 billion due to the IMF on June 30 would not be a default under a loan contract. The IMF in this context does not provide financing through contractual loans. Rather, it would be a direct breach of Greece's international law obligations under the IMF's Articles, which require Greece to make timely repayments to the IMF (technically, timely "repurchases"). While even in default of these financial obligations to the IMF, Greece would remain a member of the IMF—although the ultimate sanction for an IMF member country in persistent breach of obligations under the Articles is a compulsory withdrawal from the IMF. Accordingly, a Grexit from the EU single currency system would not imply an exit of Greece from the IMF.

This latter point is important as there are other provisions of the IMF's Articles which would continue to be material to Greece and third-parties across the global financial system. Some of these provisions are in the area of exchange and capital controls and they are often misunderstood by the financial markets. They warrant very careful attention both in the run-up to potential default and thereafter.

A basic summary of these complex provisions are as follows:

  • Article VIII, Section 2(b) of the IMF Articles of Agreement provides that: "Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member." In this respect, the IMF's Articles give some extraterritorial effect to such exchange control regulations across all of the 188 IMF member countries, where, inter alia, the controls are imposed consistently with the IMF's Articles. Note: the legal consequence of unenforceability means that a court cannot enjoin or award damages for nonperformance of the offending contract provision, but it does not imply that the contract provision is legally void—this distinction can be material particularly for third parties to the contract.
  • The analysis of whether an exchange control regulation is consistent with the IMF's Articles depends, in part, on whether the control affects international payments for current transactions (which are defined broadly to include "payments due in connection with foreign trade," "normal short term banking and credit facilities," and "interest due on loans"); or whether the control affects international capital transfers.
  • With regard to the first category, the IMF Articles generally prohibit restrictions on payments for international currency transactions, absent IMF approval. IMF policy sets out the grounds for approval by the IMF Board—generally, where the restrictions are non-discriminatory, temporary and imposed for balance of payments reasons. Upon IMF approval, a restriction on international currency transactions becomes consistent with the IMF's Articles and the extraterritorial unenforecabilty pursuant to  Article VIII, Section 2(b) would come into play.
  • In contrast, with regard to the second category of international capital transfers, the IMF's Articles generally authorize member countries to "exercise such controls that are necessary to regulate international capital movements." Accordingly, to the extent imposition of controls by Greece restricted capital transfers, they would be consistent with the IMF's Articles and no issue of IMF approval would arise in order for contract provisions inconsistent with those controls to be rendered internationally unenforceable. This is a key distinction that is often missed in legal advice provided to financial institutions and other counterparties that could be affected by the imposition of extensive controls by Greece.

The application of Article VIII, Section 2(b) is complex and has given rise to competing interpretations in courts within major financial jurisdictions, such as New York, England and Germany. A ramification for financial institutions and their counterparties is that they may need to seek legal advice in multiple jurisdictions in which their major payments are to occur.

You can hold your breath as the drama of a potential Grexit unfolds over the next week or make sure that you have the appropriate legal advice in order to manage exposures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
6 Dec 2017, Webinar, New York, United States

Join Dentons for a complimentary webinar focused on the ongoing challenge of integrating new technologies into existing information governance policies and risk management frameworks.

7 Dec 2017, Seminar, Cape Town, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

8 Dec 2017, Seminar, Johannesburg, South Africa

Dentons South Africa would be delighted if you could join us for our upcoming event.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.