Monetary Transfer Provisions and the Rule of Law from the International Investment Law Perspective

Abstract

Monetary transfer provisions (MTP) are a standard feature of investment treaties. Despite their crucial importance for the realisation of foreign investment, and interpretation difficulties, they have not attracted much doctrinal attention to date. They are also rarely considered by investment tribunals. The extent of economic sanctions imposed on Russia in response to the 2022 aggression against Ukraine, and Russian retaliatory measures, foreclose most alternative opportunities for capital exporting. As a result, we may expect a wave of MTP claims against Russia, once the country rejoins the international community. The article summarizes the debate and makes suggestions for balancing public and private interests in this sensitive area for the economic rationality of investment and the financial basis of state survival. At the same time, it is a first step toward further research situating the issues of transfer clauses and monetary sovereignty in the broader context of public safety and the legality of economic sanctions.