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ICSID Implementation Act 1990

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ICSID IMPLEMENTATION ACT 1990 No. 107, 1990
ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - LONG TITLE
An Act to amend the International Arbitration Act 1974 and the International Organizations (Privileges and Immunities) Act 1963 in order to fulfil Australia's obligations under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - PART 1 PART 1 - PRELIMINARY
ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 1 Short title
(Assented to 18 November 1990) 1. This Act may be cited as the ICSID Implementation Act 1990. (Minister's second reading speech made in- House of Representatives on 22 August 1990 Senate on 6 November 1990) ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 2 Commencement
2. (1) Part 1 commences on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed by Australia on 24 March 1975, enters into force for Australia. (3) If the remaining provisions of this Act do not commence under subsection (2) within the period of 6 months beginning on the day on which the Convention referred to in subsection (2) enters into force for Australia, they commence on the first day after the end of that period. ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - PART 2 PART 2 - AMENDMENTS OF THE INTERNATIONAL ARBITRATION ACT 1974
ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 3 Principal Act
3. In this Part, "Principal Act" means the International Arbitration Act 1974.*1* *1* No. 136, 1974, as amended. For previous amendments, see No. 19, 1979; No. 141, 1987; and No. 25, 1989. ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 4
4. After Part III of the Principal Act the following Part is inserted: "PART IV - APPLICATION OF THE CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES "Division 1 - Preliminary Interpretation "31. (1) In this Part: `award' includes: (a) an interpretation of an award under Article 50; and (b) a revision of an award under Article 51; and (c) an annulment of an award under Article 52; `Department' means the Department of the Commonwealth primarily responsible for matters relating to foreign affairs; `Investment Convention' means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975, the English text of which is set out in Schedule 3; `Secretary' means the Secretary to the Department. "(2) Except so far as the contrary intention appears, a word or expression used in this Part and in the Investment Convention (whether or not a particular meaning is given to it in the Investment Convention) has, in this Part, the same meaning as it has in the Investment Convention. "(3) A reference in this Part to a numbered Article is a reference to the Article so numbered in the Investment Convention. "Division 2 - Investment Convention Application of Investment Convention to Australia "32. Subject to this Part, Chapters II to VII (inclusive) of the Investment Convention have the force of law in Australia. Award is binding "33. (1) An award is binding on a party to the investment dispute to which the award relates. "(2) An award is not subject to any appeal or to any other remedy, otherwise than in accordance with the Investment Convention. Investment Convention awards to prevail over other laws "34. Other laws relating to the recognition and enforcement of arbitral awards, including the provisions of Parts II and III, do not apply to: (a) a dispute within the jurisdiction of the Centre; or (b) an award under this Part. Recognition of awards "35. (1) The Supreme Court of each State and Territory is designated for the purposes of Article 54. "(2) An award may be enforced in the Supreme Court of a State or Territory as if the award had been made in that State or Territory in accordance with the law of the State or Territory. "Division 3 - Miscellaneous Evidence relating to Investment Convention
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"36. (1) A certificate purporting to be signed by the Secretary and stating that a country specified in the certificate is, or was at a time so specified, a Contracting State is, upon mere production, receivable in any proceedings as prima facie evidence of that fact. "(2) The Secretary may, by signed instrument, delegate the power to sign a certificate under subsection (1) to the holder of a specified office in the Department. Representation in proceedings "37. (1) A party appearing in conciliation or arbitration proceedings may appear in person and may be represented: (a) by himself or herself; or (b) by a duly qualified legal practitioner from any legal jurisdiction of the party's choice; or (c) by any other person of the party's choice. "(2) A legal practitioner or a person referred to in paragraph (1) (b) or (c) respectively, while acting on behalf of a party to conciliation or arbitration proceedings, is not thereby to be taken to have breached any law regulating admission to, or the practice of, the profession of the law within the legal jurisdiction in which the proceedings are being conducted. "(3) Where conciliation or arbitration proceedings are conducted on the basis of documents and other materials, the documents and materials may be prepared and submitted by any legal practitioner or person who would, under subsection (1), be entitled to appear in those proceedings, and, in such a case, subsection (2) applies with the same force and effect to such a legal practitioner or person. Judiciary Act "38. A matter arising under this Part, including a question of interpretation of the Investment Convention for the purposes of this Part, is not taken to be a matter arising directly under a treaty for the purposes of section 38 of the Judiciary Act 1903.". ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 5 New Schedule
5. The Principal Act is amended by adding at the end the Schedule set out in the Schedule to this Act. ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - PART 3 PART 3 - AMENDMENTS OF THE INTERNATIONAL ORGANIZATIONS (PRIVILEGES AND IMMUNITIES) ACT 1963
ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 6 Principal Act
6. In this Part, "Principal Act" means the International Organizations (Privileges and Immunities) Act 1963.*2* *2* No. 50, 1963, as amended. For previous amendments, see No. 93, 1966; No. 4, 1982; and No. 141, 1987. ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 7 Interpretation
7. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definition: " `Investment Convention' means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States signed by Australia on 24 March 1975, the English text of which is set out in Schedule 3 to the International Arbitration Act 1974;". ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SECT 8
8. After section 9 of the Principal Act the following section is inserted: Privileges and immunities in respect of certain proceedings under the Investment Convention "9A. (1) The regulations may confer upon: (a) conciliators appointed to a Conciliation Commission; and (b) arbitrators appointed to an Arbitral Tribunal; and (c) arbitrators appointed to an ad hoc Committee of 3 persons under Article 52; the privileges and immunities required to give effect to Article 21 and paragraph (3) of Article 24. "(2) The regulations may confer upon parties, agents, counsel, advocates, witnesses and experts in proceedings under the Investment Convention the privileges and immunities required to give effect to Article 22. "(3) This section is not to be read as limiting any other provision of this Act, including the power to prescribe an organization as an international organization to which this Act applies. "(4) A word or expression used in this section and in the Investment Convention (whether or not a particular meaning is given to it by the Investment Convention) has, in this section, the same meaning as it has in the Investment Convention. "(5) A reference in this section to a numbered Article is a reference to the Article so numbered in the Investment Convention.". ICSID IMPLEMENTATION ACT 1990 No. 107 of 1990 - SCHEDULE
SCHEDULE Section 5 SCHEDULE TO BE INSERTED IN THE INTERNATIONAL ARBITRATION ACT 1974 "SCHEDULE 3 Subsection 31 (1) CONVENTION ON THE SETTLEMENT OF INVESTMENT
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DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES PREAMBLE The Contracting States Considering the need for international cooperation for economic development, and the role of private international investment therein; Bearing in mind the possibility that from time to time disputes may arise in connection with such investment between Contracting States and nationals of other Contracting States; Recognizing that while such disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases; Attaching particular importance to the availability of facilities for international conciliation or arbitration to which Contracting States and nationals of other Contracting States may submit such disputes if they so desire; Desiring to establish such facilities under the auspices of the International Bank for Reconstruction and Development; Recognizing that mutual consent by the parties to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with; and Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration, Have agreed as follows: CHAPTER I International Centre for Settlement of Investment Disputes Section 1 Establishment and Organization Article 1 (1) There is hereby established the International Centre for Settlement of Investment Disputes (hereinafter called the Centre). (2) The purpose of the Centre shall be to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States in accordance with the provisions of this Convention.Article 2 The seat of the Centre shall be at the principal office of the International Bank for Reconstruction and Development (hereinafter called the Bank). The seat may be moved to another place by decision of the Administrative Council adopted by a majority of two-thirds of its members.Article 3 The Centre shall have an Administrative Council and a Secretariat and shall maintain a Panel of Conciliators and a Panel of Arbitrators. Section 2 The Administrative Council Article 4 (1) The Administrative Council shall be composed of one representative of each Contracting State. An alternate may act as representative in case of his principal's absence from a meeting or inability to act. (2) In the absence of a contrary designation, each governor and alternate governor of the Bank appointed by a Contracting State shall be ex officio its representative and its alternate respectively.Article 5 The President of the Bank shall be ex officio Chairman of the Administrative Council (hereinafter called the Chairman) but shall have no vote. During his absence or inability to act and during any vacancy in the office of President of the Bank, the person for the time being acting as President shall act as Chairman of the Administrative Council.Article 6
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(1) Without prejudice to the powers and functions vested in it by other provisions of this Convention, the Administrative Council shall (a) adopt the administrative and financial regulations of the Centre; (b) adopt the rules of procedure for the institution of conciliation and arbitration proceedings; (c) adopt the rules of procedure for conciliation and arbitration proceedings (hereinafter called the Conciliation Rules and the Arbitration Rules); (d) approve arrangements with the Bank for the use of the Bank's administrative facilities and services; (e) determine the conditions of service of the Secretary-General and of any Deputy Secretary-General; (f) adopt the annual budget of revenues and expenditures of the Centre; (g) approve the annual report on the operation of the Centre. The decisions referred to in sub-paragraphs (a), (b), (c) and (f) above shall be adopted by a majority of two-thirds of the members of the Administrative Council. (2) The Administrative Council may appoint such committees as it considers necessary. (3) The Administrative Council shall also exercise such other powers and perform such other functions as it shall determine to be necessary for the implementation of the provisions of this Convention.Article 7 (1) The Administrative Council shall hold an annual meeting and such other meetings as may be determined by the Council, or convened by the Chairman, or convened by the Secretary-General at the request of not less than five members of the Council. (2) Each member of the Administrative Council shall have one vote and, except as otherwise herein provided, all matters before the Council shall be decided by a majority of the votes cast. (3) A quorum for any meeting of the Administrative Council shall be a majority of its members. (4) The Administrative Council may establish, by a majority of two-thirds of its members, a procedure whereby the Chairman may seek a vote of the Council without convening a meeting of the Council. The vote shall be considered valid only if the majority of the members of the Council cast their votes within the time limit fixed by the said procedure.Article 8 Members of the Administrative Council and the Chairman shall serve without remuneration from the Centre. Section 3 The Secretariat Article 9 The Secretariat shall consist of a Secretary-General, one or more Deputy Secretaries-General and staff.Article 10 (1) The Secretary-General and any Deputy Secretary-General shall be elected by the Administrative Council by a majority of two-thirds of its members upon the nomination of the Chairman for a term of service not exceeding six years and shall be eligible for re-election. After consulting the members of the Administrative Council, the Chairman shall propose one or more candidates for each such office. (2) The offices of Secretary-General and Deputy Secretary-General shall be incompatible with the exercise of any political function. Neither the Secretary-General nor any Deputy Secretary-General may hold any other employment or engage in any other occupation except with the approval of the Administrative Council. (3) During the Secretary-General's absence or inability to act, and during any vacancy of the office of Secretary-General, the Deputy Secretary-General shall act as Secretary-General. If there shall be more than one Deputy Secretary-General, the Administrative Council shall determine in advance the order in which
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they shall act as Secretary-General.Article 11 The Secretary-General shall be the legal representative and the principal officer of the Centre and shall be responsible for its administration, including the appointment of staff, in accordance with