Multilateral Investment Guarantee Agency Act 1989
c i e
AT 8 of 1989
MULTILATERAL INVESTMENT
GUARANTEE AGENCY ACT 1989
Multilateral Investment Guarantee Agency Act 1989 Index
c AT 8 of 1989 Page 3
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MULTILATERAL INVESTMENT GUARANTEE
AGENCY ACT 1989
Index Section Page
1 Status, immunities and privileges of the Agency....................................................... 5
2 Registration and enforcement of arbitration awards ................................................. 6
3 Rules of court ................................................................................................................... 6
4 Application of Arbitration Act 1976 ............................................................................. 7
5 Interpretation ................................................................................................................... 7
6 Short title and commencement ..................................................................................... 7
SCHEDULE 9
PROVISIONS OF THE CONVENTION 9
ESTABLISHMENT AND STATUS OF THE AGENCY 9
STRUCTURE OF THE AGENCY 9
THE COUNCIL 9
THE BOARD 10
LEGAL PROCESS 11
ASSETS 11
ARCHIVES AND COMMUNICATIONS 12
TAXES 12
OFFICIALS OF THE AGENCY 12
WAIVER 13
INTERPRETATION AND APPLICATION OF THE CONVENTION 13
DISPUTES BETWEEN THE AGENCY AND MEMBERS 14
DISPUTES INVOLVING HOLDERS OF A GUARANTEE OR REINSURANCE
14
Index Multilateral Investment Guarantee Agency Act 1989
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SPONSORSHIP TRUST FUND 14
APPLICATION OF THE ANNEX 14
ARBITRATION 15
ENDNOTES 19
TABLE OF LEGISLATION HISTORY 19
TABLE OF RENUMBERED PROVISIONS 19
TABLE OF ENDNOTE REFERENCES 19
Multilateral Investment Guarantee Agency Act 1989 Section 1
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MULTILATERAL INVESTMENT GUARANTEE
AGENCY ACT 1989
Received Royal Assent: 21 June 1989
Passed: 21 June 1989
Commenced: 1 November 1989
AN ACT
to implement the Convention establishing the Multilateral Investment
Guarantee Agency.
1 Status, immunities and privileges of the Agency
[P1988/8/1 and 3]
(1) The following provisions of the Convention, namely Articles 1(b), 44, 45,
46(a), 47, 48(i) and 50 (which confer status, immunities and privileges on
the Agency and, with related provisions, are set out in the Schedule),
shall have the force of law in the Island.
(2) Nothing in Article 47(a) shall be construed —
(a) as entitling the Agency to import goods free of duty or tax
without restriction on their subsequent sale in the country to
which they were imported;
(b) except as provided in subsection (3), as conferring on the Agency
any exemption from duties or taxes which form part of the price
of goods sold; or
(c) as conferring on the Agency any exemption from duties or taxes
which are no more than charges for services rendered.
(3) The Treasury shall make arrangements for refunding to the Agency,
subject to compliance with such conditions as may be imposed in
accordance with the arrangements, car tax paid on new vehicles, and
value added tax paid on the supply of goods and services, which are
necessary for the exercise of the official activities of the Agency.
(4) If in any proceedings any question arises whether a person is or is not
entitled to any privilege or immunity by virtue of this section, a
certificate issued by or under the authority of the Secretary of State
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stating any fact relevant to that question shall be conclusive evidence of
that fact.
2 Registration and enforcement of arbitration awards
[P1988/8/4]
(1) A party to a dispute which is the subject of an award rendered pursuant
to Article 4 of Annex II to the Convention shall be entitled to have the
award registered in the High Court subject to proof of such matters as
are prescribed by rules of court and to the other provisions of this
section.
(2) In addition to any sum payable under the award, the award shall be
registered for the reasonable costs of and incidental to registration.
(3) If at the date of the application for registration any sum payable under
the award has been partly paid, the award shall be registered only in
respect of the balance, and accordingly if that sum has then been wholly
paid the award shall not be registered.
(4) An award registered under this section shall be of the same force and
effect for the purpose of execution as if it had been a judgment of the
High Court given when the award was rendered as mentioned in
subsection (1) and entered on the date of registration under this section
and —
(a) proceedings may be taken on the award;
(b) any sum for which the award is registered shall carry interest; and
(c) the High Court shall have the same control over the execution of
the award;
as if the award had been a judgment of the High Court.
(5) This section shall bind the Crown (but not so as to make an award
enforceable against the Crown in a manner in which a judgment would
not be enforceable against the Crown); and an award shall not be
enforceable against a State to which the provisions of Part I of the State
Immunity Act 1978 (an Act of Parliament), as it has effect in the Island,
apply except in accordance with those provisions.
(6) In this section ‘award’ includes any decision interpreting an award; and
for the purposes of this section an award shall be deemed to have been
rendered pursuant to Article 4 of Annex II when a copy of it is
transmitted to each party as provided in paragraph (h) of that Article.
3 Rules of court
[P1988/8/5]
Rules of court may —
Multilateral Investment Guarantee Agency Act 1989 Section 4
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(a) prescribe the procedure for applying for registration under
section 2 and require an applicant to give prior notice of his
intention to other parties;
(b) prescribe the matters to be proved on the application and the
manner of proof;
(c) provide for the service of notice of registration of the award by the
applicant on other parties; and
(d) make provision requiring the High Court on proof of such matters
as may be prescribed by the rules to stay execution of an award
registered under section 2 in cases where enforcement of the
award has been stayed pursuant to Article 4 of Annex II to the
Convention.
4 Application of Arbitration Act 1976
[P1988/8/6]
(1) The Clerk of the Rolls may by order direct that any of the provisions of
section 13 of the Arbitration Act 1976 (attendance of witnesses, production
of documents etc.) shall apply, with such modifications or exceptions as
are specified in the order, to such arbitration proceedings pursuant to
Annex II to the Convention as are specified in the order.
(2) Subject to subsection (1), the Arbitration Act 1976, other than section 4
(stay of proceedings), shall not apply to any such proceedings as are
mentioned in subsection (1).
5 Interpretation
In this Act —
“the Agency
” means the Multilateral Investment Guarantee Agency;
“the Convention
” means the Convention establishing the Agency which was
signed on behalf of the United Kingdom on the 9th April 1986.
6 Short title and commencement
This Act may be cited as the Multilateral Investment Guarantee Agency Act
1989 and shall come into operation on such day as the Governor in Council may
by order appoint.1
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SCHEDULE
PROVISIONS OF THE CONVENTION
Section 1(1)
CHAPTER 1
Establishment, Status, Purposes and Definitions
Article 1
ESTABLISHMENT AND STATUS OF THE AGENCY
(a) There is hereby established the Multilateral Investment Guarantee
Agency (hereinafter called the Agency).
(b) The Agency shall possess full juridical personality and, in
particular, the capacity to:
(i) contract;
(ii) acquire and dispose of movable and immovable property;
and
(iii) institute legal proceedings.
CHAPTER V
Organization and Management
Article 30
STRUCTURE OF THE AGENCY
The Agency shall have a Council of Governors, a Board of Directors, a President and
staff to perform such duties as the Agency may determine.
Article 31
THE COUNCIL
(a) All the powers of the Agency shall be vested in the Council,
except such powers as are, by the terms of this Convention,
specifically conferred upon another organ of the Agency. The
Council may delegate to the Board the exercise of any of its
powers, except the power to:
(i) admit new members and determine the conditions of their
admission;
(ii) suspend a member;
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(iii) decide on any increase or decrease in the capital;
(iv) increase the limit of the aggregate amount of contingent
liabilities pursuant to Section (a) of Article 22;
(v) designate a member as a developing member country
pursuant to Section (c) of Article 3;
(vi) classify a new member as belonging to Category One or
Category Two for voting purposes pursuant to Section (a)
of Article 39 or reclassify an existing member for the same
purposes;
(vii) determine the compensation of Directors and their
Alternates;
(viii) cease operations and liquidate the Agency;
(ix) distribute assets to members upon liquidation; and
(x) amend this Convention, its Annexes and Schedules.
(b) The Council shall be composed of one Governor and one
Alternate appointed by each member in such manner as it may
determine. No Alternate may vote except in the absence of his
principal. The Council shall select one of the Governors as
Chairman.
(c) The Council shall hold an annual meeting and such other
meetings as may be determined by the Council or called by the
Board. The Board shall call a meeting of the Council whenever
requested by five members or by members having twenty-five per
cent of the total voting power.
Article 32
THE BOARD
(a) The Board shall be responsible for the general operations of the
Agency and shall take, in the fulfilment of this responsibility, any
action required or permitted under this Convention.
(b) The Board shall consist of not less than twelve Directors. The
number of Directors may be adjusted by the Council to take into
account changes in membership. Each Director may appoint an
Alternate with full power to act for him in case of the Director’s
absence or inability to act. The President of the Bank shall be ex
officio Chairman of the Board, but shall have no vote except a
deciding vote in case of an equal division.
(c) The Council shall determine the term of office of the Directors.
The first Board shall be constituted by the Council at its inaugural
meeting.
(d) The Board shall meet at the call of its Chairman acting on his own
initiative or upon request of three Directors.
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(e) Until such time as the Council may decide that the Agency shall
have a resident Board which functions in continuous session, the
Directors and Alternates shall receive compensation only for the
cost of attendance at the meetings of the Board and the discharge
of other official functions on behalf of the Agency. Upon the
establishment of a Board in continuous session, the Directors and
Alternates shall receive such remuneration as may be determined
by the Council.
CHAPTER VII
Privileges and Immunities
Article 44
LEGAL PROCESS
Actions other than those within the scope of Articles 57 and 58 may be brought against
the Agency only in a court of competent jurisdiction in the territories of a member in
which the Agency has an office or has appointed an agent for the purpose of accepting
service or notice of process. No such action against the Agency shall be brought:
(i) by members or persons acting for or deriving claims from
members or
(ii) in respect of personnel matters.
The property and assets of the Agency shall, wherever located and by whomsoever
held, be immune from all forms of seizure, attachment or execution before the delivery
of the final judgment or award against the Agency.
Article 45
ASSETS
(a) The property and assets of the Agency, wherever located and by
whomsoever held, shall be immune from search, requisition,
confiscation, expropriation or any other form of seizure by
executive or legislative action.
(b) To the extent necessary to carry out its operations under this
Convention, all property and assets of the Agency shall be free
from restrictions, regulations, controls and moratoria of any
nature; provided that property and assets acquired by the Agency
as successor to or subrogee of a holder of a guarantee, a reinsured
entity or an investor insured by a reinsured entity shall be free
from applicable foreign exchange restrictions, regulations and
controls in force in the territories of the member concerned to the
extent that the holder, entity or investor to whom the Agency was
subrogated was entitled to such treatment.
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(c) For purposes of this Chapter, the term ‘assets’ shall include the
assets of the Sponsorship Trust Fund referred to in Annex I to this
Convention and other assets administered by the Agency in
furtherance of its objective.
Article 46
ARCHIVES AND COMMUNICATIONS
(a) The archives of the Agency shall be inviolable, wherever they may
be.
Article 47
TAXES
(a) The Agency, its assets, property and income, and its operations
and transactions authorised by this Convention, shall be immune
from all taxes and customs duties. The Agency shall also be
immune from liability for the collection or payment of any tax or
duty.
(b) Except in the case of local nationals, no tax shall be levied on or in
respect of expense allowances paid by the Agency to Governors
and their Alternates or on or in respect of salaries, expense
allowances or other emoluments paid by the Agency to the
Chairman of the Board, Directors, their Alternates, the President
or staff of the Agency.
(c) No taxation of any kind shall be levied on any investment
guaranteed or reinsured by the Agency (including any earnings
therefrom) or any insurance policies reinsured by the Agency
(including any premiums and other revenues therefrom) by
whomsoever held:
(i) which discriminates against such investment or insurance
policy solely because it is guaranteed or reinsured by the
Agency; or
(ii) if the sole jurisdictional basis for such taxation is the
location of any office or place of business maintained by
the Agency.
Article 48
OFFICIALS OF THE AGENCY
All Governors, Directors, Alternates, the President and staff of the Agency:
(i) shall be immune from legal process with respect to acts
performed by them in their official capacity;
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(ii) not being local nationals, shall be accorded the same
immunities from immigration restrictions, alien
registration requirements and national service obligations,
and the same facilities as regards exchange restrictions as
are accorded by the members concerned to the
representatives, officials and employees of comparable
rank of other members; and
(iii) shall be granted the same treatment in respect of travelling
facilities as is accorded by the members concerned to
representatives, officials and employees of comparable
rank of other members.
Article 50
WAIVER
The immunities, exemptions and privileges provided in this Chapter are granted in the
interests of the Agency and may be waived, to such extent and upon such conditions as
the Agency may determine, in cases where such a waiver would not prejudice its
interests. The Agency shall waive the immunity of any of its staff in cases where, in its
opinion, the immunity would impede the course of justice and can be waived without
prejudice to the interests of the Agency.
CHAPTER IX
Settlement of Disputes
Article 56
INTERPRETATION AND APPLICATION OF THE
CONVENTION
(a) Any question of interpretation or application of the provisions of
this Convention arising between any member of the Agency and
the Agency or among members of the Agency shall be submitted
to the Board for its decision. Any member which is particularly
affected by the question and which is not otherwise represented
by a national in the Board may send a representative to attend any
meeting of the Board at which such question is considered.
(b) In any case where the Board has given a decision under Section
(a) above, any member may require that the question be referred
to the Council, whose decision shall be final. Pending the result of
the referral to the Council, the Agency may, so far as it deems
necessary, act on the basis of the decision of the Board.
Article 57
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DISPUTES BETWEEN THE AGENCY AND MEMBERS
(a) Without prejudice to the provisions of Article 56 and of Section (b)
of this Article, any dispute between the Agency and a member or
an agency thereof and any dispute between the agency and a
country (or agency thereof) which has ceased to be a member,
shall be settled in accordance with the procedure set out in Annex
II to this Convention.
Article 58
DISPUTES INVOLVING HOLDERS OF A GUARANTEE OR
REINSURANCE
Any dispute arising under a contract of guarantee or reinsurance between the parties
thereto shall be submitted to arbitration for final determination in accordance with
such rules as shall be provided for or referred to in the contract of guarantee or
reinsurance.
ANNEX 1
Guarantees of Sponsored Investments Under Article 24
Article 2
SPONSORSHIP TRUST FUND
(a) Premiums and other revenues attributable to guarantees of
sponsored investments, including returns on the investment of
such premiums and revenues, shall be held in a separate account
which shall be called the Sponsorship Trust Fund.
(b) All administrative expenses and payments on claims attributable
to guarantees issued under this Annex shall be paid out of the
Sponsorship Trust Fund.
(c) The assets of the Sponsorship Trust Fund shall be held and
administered for the joint account of sponsoring members and
shall be kept separate and apart from the assets of the Agency.
ANNEX II
Settlement of Disputes Between a Member and the Agency under Article 57
Article 1
APPLICATION OF THE ANNEX
All disputes within the scope of Article 57 of this Convention shall be settled in
accordance with the procedure set out in this Annex, except in the cases where the
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Agency has entered into an agreement with a member pursuant to Section (b)(ii) of
Article 57.
Article 4
ARBITRATION
(a) Arbitration proceedings shall be instituted by means of a notice
by the party seeking arbitration (the claimant) addressed to the
other party or parties to the dispute (the respondent). The notice
shall specify the nature of the dispute, the relief sought and the
name of the arbitrator appointed by the claimant. The respondent
shall, within thirty days after the date of receipt of the notice,
notify the claimant of the name of the arbitrator appointed by it.
The two parties shall, within a period of thirty days from the date
of appointment of the second arbitrator, select a third arbitrator,
who shall act as President of the Arbitral Tribunal (the Tribunal).
(b) If the Tribunal shall not have been constituted within sixty days
from the date of the notice, the arbitrator not yet appointed or the
President not yet selected shall be appointed, at the joint request
of the parties, by the Secretary-General of ICSID. If there is no
such joint request, or if the Secretary-General shall fail to make the
appointment within thirty days of the request, either party may
request the President of the International Court of Justice to make
the appointment.
(c) No party shall have the right to change the arbitrator appointed
by it once the hearing of the dispute has commenced. In case any
arbitrator (including the President of the Tribunal) shall resign,
die, or become incapacitated, a successor shall be appointed in the
manner followed in the appointment of his predecessor and such
successor shall have the same powers and duties of the arbitrator
he succeeds.
(d) The Tribunal shall convene first at such time and place as shall be
determined by the President. Thereafter, the Tribunal shall
determine the place and dates of its meetings.
(e) Unless otherwise provided in this Annex or agreed upon by the
parties, the Tribunal shall determine its procedure and shall be
guided in this regard by the arbitration rules adopted pursuant to
the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States.
(f) The Tribunal shall be the judge of its own competence except that,
if an objection is raised before the Tribunal to the effect that the
dispute falls within the jurisdiction of the Board or the Council
under Article 56 or within the jurisdiction of a judicial or arbitral
body designated by an agreement under Article 1 of this Annex
and the Tribunal is satisfied that the objection is genuine, the
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objection shall be referred by the Tribunal to the Board or the
Council or the designated body, as the case may be, and the
arbitration proceedings shall be stayed until a decision has been
reached on the matter, which shall be binding upon the Tribunal.
(g) The Tribunal shall, in any dispute within the scope of this Annex,
apply the provisions of this Convention, any relevant agreement
between the parties to the dispute, the Agency’s by-laws and
regulations, the applicable rules of international law, the domestic
law of the member concerned as well as the applicable provisions
of the investment contract, if any. Without prejudice to the
provisions of this Convention, the Tribunal may decide a dispute
ex aequo et bono if the Agency and the member concerned so
agree. The Tribunal may not bring a finding of non liquet on the
ground of silence or obscurity of the law.
(h) The Tribunal shall afford a fair hearing to all parties. All decisions
of the Tribunal shall be taken by a majority vote and shall state
the reasons on which they are based. The award of the Tribunal
shall be in writing, and shall be signed by at least two arbitrators
and a copy thereof shall be transmitted to each party. The award
shall be final and binding upon the parties and shall not be subject
to appeal, annulment or revision.
(i) If any dispute shall arise between the parties as to the meaning or
scope of an award, either party may, within sixty days after the
award was rendered request interpretation of the award by an
application in writing to the President of the Tribunal which
rendered the award. The President shall, if possible, submit the
request to the Tribunal which rendered the award and convene
such Tribunal within sixty days after receipt of the application. If
this shall not be possible, a new Tribunal shall be constituted in
accordance with the provisions of Sections (a) to (d) above. The
Tribunal may stay enforcement of the award pending its decision
on the requested interpretation.
(j) Each member shall recognize as an award rendered pursuant to
this Article as binding and enforceable within its territories as if it
were a final judgment of a court in that member. Execution of the
award shall be governed by the laws concerning the execution of
judgments in force in the State in whose territories such execution
is sought and shall not derogate from the law in force relating to
immunity from execution.
(k) Unless the parties shall agree otherwise, the fees and
remuneration payable to the arbitrators shall be determined on
the basis of the rates applicable to ICSID arbitration. Each party
shall defray its own cost associated with the arbitration
proceedings. The costs of the Tribunal shall be borne by the
parties in equal proportion unless the Tribunal decides otherwise.
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Any question concerning the division of the costs of the Tribunal
or the procedure for payment of such costs shall be decided by the
Tribunal.
Multilateral Investment Guarantee Agency Act 1989 Endnotes
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ENDNOTES
Table of Legislation History
Legislation Year and No Commencement
Table of Renumbered Provisions
Original Current
Table of Endnote References
1
ADO (whole Act) 1/11/1989 (GC352/89).
