국제금융거래에서 제3국의 외국환거래법과 국제적 강행규정의 적용：IMF 협정 제Ⅷ조 2(b)를 포함하여

While the law governing international financial transactions is determined by the private international law rules of the forum, there are so-called “internationally mandatory rules” that apply regardless of the governing law of the legal relationship in question. Foreign exchange control law is a typical ex ample of internationally mandatory rules. In the present article, the author takes the hypothetical example of the Korea Development Bank granting a loan to a borrower of Chile and designating in the loan agreement the Korean law and the Korean courts respectively as the applicable law and competent courts, and discusses how foreign countries’ exchange control laws (for example, those of Chile) would be considered by Korean courts. The issue at stake is how for eign exchange control laws of third countries are to be considered in interna tional financial transactions. The order of discussion is as follows: First, before dealing with internationally mandatory rules of third countries, the author discusses the concept of internationally mandatory rules and the is sue of the consideration of the internationally mandatory rules of the forum and those of the country whose law is applicable to the legal relationship in question (Chapter II.). Second, the author reviews the purpose and main issues of Article Ⅷ2(b) of the Articles of Agreement of the International Monetary Fund (“IMF Agreement”) concluded in 1944 (Chapter Ⅲ.). Since Article Ⅷ2(b) of the IMF Agreement is a special private international law rule, the Korean courts must first review its applicability to the loan agreement. If it applies, the foreign exchange control rules of Chile apply even if Korean law governs the loan agreement, and as a result, the loan agreement will be unenforceable be fore Korean courts if the required foreign exchange permit has not been obtained. Regarding the scope of application of exchange contracts under Article Ⅷ2(b), as the narrow-scope theory has been widely accepted interna tionally, it would be sensible for us to follow it as well. Third, the author dis cusses the consideration of the foreign exchange control law of third countries under the private international law act of Korea (KPILA) (Chapter IV). If the case described above does not fall within the scope of Article Ⅷ2(b) of the IMF Agreement, the issue of the violation of Chile’s foreign exchange control law arises. Since the KPILA does not regulate the consideration of internation ally mandatory rules of third countries, there may be a split of opinions. The author believes the so-called “special connection theory” is more persuasive in the interpretation of the KPILA. Fourth, the author reviews issues raised in international financial transactions regarding third countries’ internationally mandatory rules other than foreign ex change control law (Chapter Ⅴ.). Here, the author briefly introduces the English ruling which dealt with the effect of the asset freeze order of the US on the eurodollar deposit at a US bank, as well as the decision of the lower courts of Korea which refused to apply the Argentine Presidential Decree issued during the economic crisis of Argentina in the late 1990s, which effectively re duced the debts of the plaintiff by two-thirds, for violating Korean public policy. In the latter case, it is regrettable that both the first and second in stances of Korea did not recognize the issue of Article Ⅷ2(b) of the IMF Agreement. While there are also historical reasons for Anglo-American law, especially English law, to have a superior position in international financial transactions, the interpretation of Article Ⅷ2(b) of the IMF Agreement in England and Article 9 of the Regulation No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligation (RomI) clearly reflect the UK’s unremitting efforts to uphold that status.