Arbitration (International Investment Disputes) (Jersey)
Order 1979
Jersey Order in Council 13/1979
ARBITRATION (INTERNATIONAL INVESTMENT DISPUTES) (JERSEY)
ORDER 1979.
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(Registered on the 15th day of June, 1979)
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At the Court at Buckingham Palace.
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14th March, 1979.
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PRESENT
The Queen’s Most Excellent Majesty in Council.
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HER MAJESTY, in exercise of the powers
conferred upon Her by section 6 of the Arbitration
(International Investment Disputes) Act 1966 is pleased, by and
with the advice of Her Privy Council, to order, and it is hereby ordered, as
follows: -
1. This
Order may be cited as the Arbitration (International Investment Disputes (Jersey) Order 1979
and shall come into operation on 1st
July 1979.
2. The
provisions of the Arbitration
(International Investment Disputes) Act 1966 shall extend to the
Bailiwick of Jersey subject to the exceptions, adaptations and modifications
specified in the Schedule to this Order.
N.E. LEIGH,
Clerk of the Privy Council.
SCHEDULE
EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS IN THE EXTENSION OF THE
ARBITRATION (INTERNATIONAL INVESTMENT DISPUTES) ACT 1966 TO THE BAILIWICK OF JERSEY
1.-(1) In section 1(2), for the reference to
the High Court there shall be substituted a reference to the Royal Court.
(2) In section
1(6), for the words “to make rules of court under section 99 of the Supreme Court of
Judicature (Consolidation) Act 1925”, there shall be
substituted the words “of the Royal Court to make rules of court under
Article 11 of the Royal Court (Jersey) Law 1948”.
(3) Section 1(8)
shall be omitted.
2.-(1) In section 2(1), for any reference to
the High Court, there shall be substituted a reference to the Royal Court.
(2) In section
2(2), for the words “Rules of court under section 99 of the Supreme Court of
Judicature (Consolidation) Act 1925”, there shall be
substituted the words “Rules of court made by the Royal Court under
Article 11 of the Royal Court (Jersey) Law 1948”.
3. For
section 3 there shall be substituted the following section: -
“Proceedings in the Bailiwick of Jersey
3.-(1) The power of the
Royal Court to make rules of court under Article 11 of the Royal Court (Jersey) Law
1948, as extended by this Act, shall include power to make
provision, in relation to such proceedings pursuant to the Convention as are
specified in the rules of court, for the attendance of witnesses, the taking of
evidence and the production of documents.
(2) Such
rules of court may contain provisions directing that Part II of the Service of Process and
Taking of Evidence (Jersey) Law 1960 (which relates to the taking
of evidence in Jersey for the purpose of proceedings before courts and
tribunals outside Jersey) shall apply to such proceedings pursuant to the
Convention as are specified in the rules of court, with or without any
modifications or exceptions specified in the rules of court.”.
4. Sections
5, 6, 7, 8 and 9(2) shall be omitted.
ARBITRATION (INTERNATIONAL INVESTMENT DISPUTES) ACT
1966.
CHAPTER 41.
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ARRANGEMENT OF SECTIONS.
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Enforcement of Convention awards.
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Section
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1.
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Registration of Convention awards.
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2.
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Effect of registration.
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Procedural provisions.
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3.
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Proceedings in the Bailiwick of Jersey.
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Immunities and privileges.
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4.
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Status,
immunities and privileges conferred by the Convention.
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Supplemental.
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9.
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Short title.
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Schedule – Text of Convention.
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ELIZABETH II
1966 CHAPTER 41
AN ACT to
implement an international Convention on the settlement of investment disputes
between States and nationals of other States.
[13th December 1966]
BE IT ENACTED by the Queen’s most
Excellent Majesty, by and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows:
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Enforcement of Convention awards
REGISTRATION OF CONVENTION AWARDS
1.-(1) This section has effect as respects
awards rendered pursuant to the Convention on the settlement of investment
disputes between States and nationals of other States which was opened for
signature in Washington
on 18th March 1965.
That Convention is in this Act called “the Convention”,
and its text is set out in the Schedule to this Act.
(2) A person
seeking recognition or enforcement of such an award shall be entitled to have
the award registered in the [Royal
Court] subject to proof of the prescribed matters
and to the other provisions of this Act.
(3) Where any
pecuniary obligation imposed by the award is expressed in a currency other than
the currency of the United Kingdom, the award shall be registered as if that
obligation were expressed in the currency of the United Kingdom converted on the
basis of the rate of exchange prevailing at the date when the award was
rendered pursuant to the Convention.
(4) In addition to
the pecuniary obligations imposed by the award, the award shall be registered
for the reasonable costs of and incidental to registration.
(5) If at the date
of the application for registration the pecuniary obligations imposed by the
award have been partly satisfied, the award shall be registered only in respect
of the balance, and accordingly if those obligations have then been wholly
satisfied, the award shall not be registered.
(6) The power [of
the Royal Court
to make rules of court under Article 11 of the Royal Court (Jersey) Law,
1948] shall include power
–
(a) to prescribe the procedure for
applying for registration under this section, and to require an applicant to
give prior notice of his intention to other parties,
(b) to prescribe the matters to be
proved on the application and the manner of proof, and in particular to require
the applicant to furnish a copy of the award certified pursuant to the
Convention,
(c) to provide for the service of
notice of registration of the award by the applicant on other parties,
and in this and the next following section “prescribed”
means prescribed by rules of court.
(7) For the
purposes of this and the next following section –
(a) “award” shall include
any decision interpreting, revising or annulling an award, being a decision
pursuant to the Convention, and any decision as to costs which under the
Convention is to form part of the award,
(b) an award shall be deemed to have
been rendered pursuant to the Convention on the date on which certified copies
of the award were pursuant to the Convention dispatched to the parties.
* * * * * *
EFFECT OF REGISTRATION
2.-(1) Subject to the provisions of this Act,
an award registered under section 1 above shall, as respects the pecuniary
obligations which it imposes, be of the same force and effect for the purposes
of execution as if it had been a judgment of the [Royal Court] given when the
award was rendered pursuant to the Convention and entered on the date of
registration under this Act, and, so far as relates to such pecuniary
obligations –
(a) proceedings may be taken on the
award,
(b) the sum for which the award is
registered shall carry interest,
(c) the [Royal Court] shall have the same control
over the execution of the award,
as if the award had been such a judgment of the [Royal Court].
(2) [Rules of
court made by the Royal Court under Article 11 of the Royal Court (Jersey) Law,
1948] may contain provisions
requiring the court on proof of the prescribed matters to stay execution of any
award registered under this Act so as to take account of cases where
enforcement of the award has been stayed (whether provisionally or otherwise)
pursuant to the Convention, and may provide for the provisional stay to
execution of the award where an application is made pursuant to the Convention
which, if granted, might result in a stay of enforcement of the award.
Procedural provisions
[PROCEEDINGS IN THE
BAILIWICK OF JERSEY
3.-(1) The power of the
Royal Court to make rules of court under Article 11 of the Royal Court (Jersey) Law,
1948, as extended by this Act,
shall include power to make provision, in relation to such proceedings pursuant
to the Convention as are specified in the rules of court, for the attendance of
witnesses, the taking of evidence and the production of documents.
(2) Such rules of
court may contain provisions directing that Part II of the Service of Process and
Taking of Evidence (Jersey) Law, 19604 (which relates to the taking of
evidence in Jersey for the purpose of proceedings before courts and tribunals
outside Jersey) shall apply to such proceedings pursuant to the Convention as
are specified in the rules of court, with or without any modifications or
exceptions specified in the rules of court.]
Immunities and privileges
STATUS IMMUNITIES AND PRIVILEGES CONFERRED BY THE CONVENTION
4.-(1) In Section 6 of
the Chapter I of the Convention (which governs the status, immunities and
privileges of the International Centre for Settlements of Investment Disputes
established by the Convention, of members of its Council and Secretariat and of
persons concerned with conciliation or arbitration under the Convention)
Articles 18 to 20, Article 21(a)
(with Article 22 as it applies Article 21(a)), Article 23(1) and Article 24 shall have the force
of law.
(2) Nothing in
Article 24(1) of the Convention as given the force of law by this section
shall be construed as –
(a) entitling the said Centre to import
goods free of customs duty without any restriction on their subsequent sale in
the country to which they were imported, or
(b) conferring on that Centre any
exemption from duties or taxes which form part of the price of goods sold, or
(c) conferring on that Centre any
exemption from duties or taxes which are no more than charges for services
rendered.
(3) For the
purposes of Article 20 and Article 21(a) of the Convention as given the force of law by this section, a
statement to the effect that the said Centre has waived an immunity in the
circumstances specified in the statement, being a statement certified by the
Secretary-General of the said Centre (or by the person acting as
Secretary-General), shall be conclusive evidence.
Supplemental
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SHORT TITLE AND COMMENCEMENT
9.-(1) This Act may be cited as the Arbitration
(International Investment Disputes) Act 1966.
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SCHEDULE
(Section 1)
TEXT OF CONVENTION
CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES
AND NATIONALS OF OTHER STATES
PREAMBLE
The Contracting States
Considering the need for
international co-operation 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
(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 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 the
provisions of this Convention and the rules adopted by the Administrative
Council. He shall perform the function of registrar and shall have the power to
authenticate arbitral awards rendered pursuant to this Convention, and to
certify copies thereof.
SECTION 4
The Panels
ARTICLE 12
The Panel of Conciliators and the Panel of Arbitrators shall each
consist of qualified persons, designated as hereinafter provided, who are
willing to serve thereon.
ARTICLE 13
(1) Each
Contracting State may designate to each Panel four
persons who may but need not be its nationals.
(2) The
Chairman may designate ten persons to each Panel. The persons so designated to
a Panel shall each have a different nationality.
ARTICLE 14
(1) Persons
designated to serve on the Panels shall be persons of high moral character and
recognized competence in the fields of law, commerce, industry or finance, who
may be relied upon to exercise independent judgment. Competence in the field of
law shall be of particular importance in the case of persons on the Panel of
Arbitrators.
(2) The
Chairman, in designating persons to serve on the Panels, shall in addition pay
due regard to the importance of assuring representation on the Panels of the
principal legal systems of the world and of the main forms of economic
activity.
ARTICLE 15
(1) Panel
members shall serve for renewable period of six years.
(2) In
case of death or resignation of a member of a Panel, the authority which
designated the member shall have the right to designate another person to serve
for the remainder of that member’s term.
(3) Panel
members shall continue in office until their successors have been designated.
ARTICLE 16
(1) A
person may serve on both Panels.
(2) If
a person shall have been designated to serve on the same Panel by more than one
Contracting State, or by one or more Contracting States and the Chairman, he
shall be deemed to have been designated by the authority which first designated
him or, if one such authority is the State of which he is a national, by that
State.
(3) All
designations shall be notified to the Secretary-General and shall take effect
from the date on which the notification is received.
SECTION 5
Financing the Centre
ARTICLE 17
If the expenditure of the Centre cannot be met out of charges for
the use of its facilities, or out of other receipts, the excess shall be borne
by Contracting States which are members of the Bank in proportion to their
respective subscriptions to the capital stock of the Bank, and by Contracting
States which are not members of the Bank in accordance with rules adopted by
the Administrative Council.
SECTION 6
Status, Immunities and Privileges
ARTICLE 18
The Centre shall have full international legal personality. The
legal capacity of the Centre shall include the capacity
(a) to contract;
(b) to acquire and dispose of movable
and immovable property;
(c) to institute legal proceedings.
ARTICLE 19
To enable the Centre to fulfil its functions, it shall enjoy in the
territories of each Contracting
State the immunities and
privileges set forth in this Section.
ARTICLE 20
The Centre, its property and assets shall enjoy immunity from all
legal process, except when the Centre waives this immunity.
ARTICLE 21
The Chairman, the members of the Administrative Council, persons
acting as conciliators or arbitrators or members of a Committee appointed
pursuant to paragraph (3) of Article 52, and the officers and
employees of the Secretariat
(a) shall enjoy immunity from legal
process with respect to acts performed by them in the exercise of their
functions, except when the Centre waives this immunity;
(b) not being local nationals, shall
enjoy the same immunities from immigration restrictions, alien registration
requirements and national service obligations, the same facilities as regards
exchange restrictions and the same treatment in respect of travelling facilities
as are accorded by Contracting States to the representatives, officials and
employees of comparable rank of other Contracting States.
ARTICLE 22
The provisions of Article 21 shall apply to persons appearing
in proceedings under this Convention as parties, agents, counsel, advocates,
witnesses or experts; provided, however, that sub-paragraph (b) thereof shall apply only in
connection with their travel to and from, and their stay at, the place where
the proceedings are held.
ARTICLE 23
(1) The
archives of the Centre shall be inviolable, wherever they may be.
(2) With
regard to its official communications, the Centre shall be accorded by each Contracting State treatment not less favourable than that accorded to other international organisations.
ARTICLE 24
(1) The
Centre, its assets, property and income, and its operations and transactions
authorized by this Convention shall be exempt from all taxation and customs
duties. The Centre shall also be exempt from liability for the collection or
payment of any taxes or customs duties.
(2) Except
in the case of local nationals, no tax shall be levied on or in respect of
expense allowances paid by the Centre to the Chairman or members of the
Administrative Council, or on or in respect of salaries, expense allowances or
other emoluments paid by the Centre to officials or employees of the
Secretariat.
(3) No
tax shall be levied on or in respect of fees or expense allowances received by
persons acting as conciliators, or arbitrators, or members of a Committee
appointed pursuant to paragraph (3) of Article 52, in proceedings
under this Convention, if the sole jurisdictional basis for such tax is the
location of the Centre or the place where such proceedings are conducted or the
place where such fees or allowances are paid.
CHAPTER II
JURISDICTION OF THE CENTRE
ARTICLE 25
(1) The
jurisdiction of the Centre shall extend to any legal dispute arising directly
out of an investment, between a Contracting State (or any constituent
subdivision or agency of a Contracting State designated to the Centre by that
State) and a national of another Contracting State, which the parties to the
dispute consent in writing to submit to the Centre. When the parties have given
their consent, no party may withdraw its consent unilaterally.
(2) “National
of another Contracting
State” means:
(a) any
natural person who had the nationality of a Contracting State other than the
State party to the dispute on the date on which the parties consented to submit
such dispute to conciliation or arbitration as well as on the date on which the
request was registered pursuant to paragraph (3) of Article 28 or
paragraph (3) of Article 36, but does not include any person who on
either date also had the nationality of the Contracting State party to the
dispute; and
(b) any
juridical person which had the nationality of a Contracting State other than
the State party to the dispute on the date on which the parties consented to
submit such dispute to conciliation or arbitration and any juridical person
which had the nationality of the Contracting State party to the dispute on that
date and which, because of foreign control, the parties have agreed should be
treated as a national of another Contracting State for the purposes of this
Convention.
(3) Consent
by a constituent subdivision or agency of a Contracting State
shall require the approval of that State unless that State notifies the Centre
that no such approval is required.
(4) Any
Contracting State may, at the time of ratification,
acceptance or approval of this Convention or at any time thereafter, notify the
Centre of the class or classes of disputes which it would or would not consider
submitting to the jurisdiction of the Centre. The Secretary-General shall
forthwith transmit such notification to all Contracting States. Such
notification shall not constitute the consent required by paragraph (1).
ARTICLE 26
Consent of the parties to arbitration under this Convention shall,
unless otherwise stated, be deemed consent to such arbitration to the exclusion
of any other remedy. A Contracting
State may require the
exhaustion of local administrative or judicial remedies as a condition of its
consent to arbitration under this Convention.
ARTICLE 27
(1) No
Contracting State shall give diplomatic protection, or bring an international
claim, in respect of a dispute which one of its nationals and another
Contracting State shall have consented to submit or shall have submitted to
arbitration under this Convention, unless such other Contracting State shall
have failed to abide by and comply with the award rendered in such dispute.
(2) Diplomatic
protection for the purposes of paragraph (1), shall not include informal
diplomatic exchanges for the sole purpose of facilitating a settlement of the
dispute.
CHAPTER III
CONCILIATION
SECTION 1
Request for Conciliation
ARTICLE 28
(1) Any
Contracting State or any national of a Contracting State wishing to institute conciliation
proceedings shall address a request to that effect in writing to the
Secretary-General who shall send a copy of the request to the other party.
(2) The
request shall contain information concerning the issues in dispute, the
identity of the parties and their consent to conciliation in accordance with
the rules of procedure for the institution of conciliation and arbitration
proceedings.
(3) The
Secretary-General shall register the request unless he finds, on the basis of
the information contained in the request, that the dispute is manifestly
outside the jurisdiction of the Centre. He shall forthwith notify the parties
of registration or refusal to register.
SECTION 2
Constitution of the Conciliation Commission
ARTICLE 29
(1) The
Conciliation Commission (hereinafter called the Commission) shall be
constituted as soon as possible after registration of a request pursuant to
Article 28.
(2) (a) The
Commission shall consist of a sole conciliator or any uneven number of
conciliators appointed as the parties shall agree.
(b) Where
the parties do not agree upon the number of conciliators and the method of
their appointment, the Commission shall consist of three conciliators, one
conciliator appointed by each party and the third, who shall be the president
of the Commission, appointed by agreement of the parties.
ARTICLE 30
If the Commission shall not have been constituted within 90 days
after notice of registration of the request has been dispatched by the
Secretary-General in accordance with paragraph (3) of Article 28, or
such other period as the parties may agree, the Chairman shall, at the request
of either party and after consulting both parties as far as possible, appoint
the conciliator or conciliators not yet appointed.
ARTICLE 31
(1) Conciliators
may be appointed from outside the Panel of Conciliators, except in the case of
appointments by the Chairman pursuant to Article 30.
(2) Conciliators
appointed from outside the Panel of Conciliators shall possess the qualities
stated in paragraph (1) of Article 14.
SECTION 3
Conciliation Proceedings
ARTICLE 32
(1) The
Commission shall be the judge of its own competence.
(2) Any
objection by a party to the dispute that that dispute is not within the
jurisdiction of the Centre, or for other reasons is not within the competence
of the Commission, shall be considered by the Commission which shall determine
whether to deal with it as a preliminary question or to join it to the merits
of the dispute.
ARTICLE 33
Any conciliation proceeding shall be conducted in accordance with
the provisions of this Section and, except as the parties otherwise agree, in
accordance with the Conciliation Rules in effect on the date on which the
parties consented to conciliation. If any question of procedure arises which is
not covered by this Section or the Conciliation Rules or any rules agreed by the parties,
the Commission shall decide the question.
ARTICLE 34
(1) It
shall be the duty of the Commission to clarify the issues in dispute between
the parties and to endeavour to bring about agreement
between them upon mutually acceptable terms. To that end, the Commission may at
any stage of the proceedings and from time to time recommend terms of
settlement to the parties. The parties shall co-operate in good faith with the
Commission in order to enable the Commission to carry out its functions, and
shall give their most serious consideration to its recommendations.
(2) If
the parties reach agreement, the Commission shall draw up a report noting the
issues in dispute and recording that the parties have reached agreement. If, at
any stage of the proceedings, it appears to the Commission that there is no likelihood
of agreement between the parties, it shall close the proceedings and shall draw
up a report noting the submission of the dispute and recording the failure of
the parties to reach agreement. If one party fails to appear or participate in
the proceedings, the Commission shall close the proceedings and shall draw up a
report noting that party’s failure to appear or participate.
ARTICLE 35
Except as the parties to the dispute shall otherwise agree, neither
party to a conciliation proceeding shall be entitled in any other proceeding,
whether before arbitrators or in a court of law or otherwise, to invoke or rely
on any views expressed or statements or admissions or offers of settlement made
by the other party in the conciliation proceedings, or the report or any
recommendations made by the Commission.
CHAPTER IV
ARBITRATION
SECTION 1
Request for Arbitration
ARTICLE 36
(1) Any
Contracting State or any national of a Contracting State wishing to institute arbitration
proceedings shall address a request to that effect in writing to the
Secretary-General who shall send a copy of the request to the other party.
(2) The
request shall contain information concerning the issues in dispute, the
identity of the parties and their consent to arbitration in accordance with the
rules of procedure for the institution of conciliation and arbitration
proceedings.
(3) The
Secretary-General shall register the request unless he finds, on the basis of
the information contained in the request, that the dispute is manifestly outside
the jurisdiction of the Centre. He shall forthwith notify the parties of
registration or refusal to register.
SECTION 2
Constitution of the Tribunal
ARTICLE 37
(1) The
Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as
soon as possible after registration of a request pursuant to Article 36.
(2) (a) The
Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators
appointed as the parties shall agree.
(b) Where
the parties do not agree upon the number of arbitrators and the method of their
appointment, the Tribunal shall consist of three arbitrators, one arbitrator
appointed by each party and the third, who shall be the president of the
Tribunal, appointed by agreement of the parties.
ARTICLE 38
If the Tribunal shall not have been constituted within 90 days
after notice of registration of the request has been dispatched by the
Secretary-General in accordance with paragraph (3) of Article 36, or
such other period as the parties may agree, the Chairman shall, at the request
of either party and after consulting both parties as far as possible, appoint
the arbitrator or arbitrators not yet appointed. Arbitrators appointed by the
Chairman pursuant to this Article shall not be nationals of the Contracting State party to the dispute or of the Contracting State whose national is a party to the
dispute.
ARTICLE 39
The majority of the arbitrators shall be nationals of States other
than the Contracting State party to the dispute and the Contracting State whose
national is a party to the dispute; provided, however, that the foregoing
provisions of this Article shall not apply if the sole arbitrator or each
individual member of the Tribunal has been appointed by agreement of the
parties.
ARTICLE 40
(1) Arbitrators
may be appointed from outside the Panel of Arbitrators, except in the case of
appointments by the Chairman pursuant to Article 38.
(2) Arbitrators
appointed from outside the Panel of Arbitrators shall possess the qualities
stated in paragraph (1) of Article 14.
SECTION 3
Powers and Functions of the Tribunal
ARTICLE 41
(1) The
Tribunal shall be the judge of its own competence.
(2) Any
objection by a party to the dispute that that dispute is not within the
jurisdiction of the Centre, or for other reasons is not within the competence
of the Tribunal, shall be considered by the Tribunal which shall determine
whether to deal with it as a preliminary question or to join it to the merits
of the dispute.
ARTICLE 42
(1) The
Tribunal shall decide a dispute in accordance with such rules of law as may be
agreed by the parties. In the absence of such agreement, the Tribunal shall
apply the law of the Contracting
State party to the
dispute (including its rules on the conflict of laws) and such rules of
international law as may be applicable.
(2) The
Tribunal may not bring in a finding of non
liquet on the ground of silence or obscurity of
the law.
(3) The
provisions of paragraphs (1) and (2) shall not prejudice the power of the
Tribunal to decide a dispute ex aequo et
bono if the parties so agree.
ARTICLE 43
Except as the parties otherwise agree, the Tribunal may, if it
deems it necessary at any stage of the proceedings,
(a) call upon the parties to produce
documents or other evidence, and
(b) visit the scene connected with the
dispute, and conduct such enquiries there as it may deem appropriate.
ARTICLE 44
Any arbitration proceeding shall be conducted in accordance with
the provisions of this Section and, except as the parties otherwise agree, in
accordance with the Arbitration Rules in effect on the date on which the
parties consented to arbitration. If any question of procedure arises which is
not covered by this Section or the Arbitration Rules or any rules agreed by the parties,
the Tribunal shall decide the question.
ARTICLE 45
(1) Failure
of a party to appear or to present his case shall not be deemed an admission of
the other party’s assertions.
(2) If
a party fails to appear or to present his case at any stage of the proceedings
the other party may request the Tribunal to deal with the questions submitted
to it and to render an award. Before rendering an award, the Tribunal shall
notify, and grant a period of grace to, the party failing to appear or to
present its case, unless it is satisfied that that party does not intend to do
so.
ARTICLE 46
Except as the parties otherwise agree, the Tribunal shall, if
requested by a party, determine any incidental or additional claims or
counter-claims arising directly out of the subject-matter of the dispute
provided that they are within the scope of the consent of the parties and are
otherwise within the jurisdiction of the Centre.
ARTICLE 47
Except as the parties otherwise agree, the Tribunal may, if it
considers that the circumstances so require, recommend any provisional measures
which should be taken to preserve the respective rights of either party.
SECTION 4
The Award
ARTICLE 48
(1) The
Tribunal shall decide questions by a majority of the votes of all its members.
(2) The
award of the Tribunal shall be in writing and shall be signed by the members of
the Tribunal who voted for it.
(3) The
award shall deal with every question submitted to the Tribunal, and shall state
the reasons upon which it is based.
(4) Any
member of the Tribunal may attach his individual opinion to the award, whether
he dissents from the majority or not, or a statement of his dissent.
(5) The
Centre shall not publish the award without the consent of the parties.
ARTICLE 49
(1) The
Secretary-General shall promptly dispatch certified copies of the award to the
parties. The award shall be deemed to have been rendered on the date on which
the certified copies were dispatched.
(2) The
Tribunal upon the request of a party made within 45 days after the date on
which the award was rendered may after notice to the other party decide any
question which it had omitted to decide in the award, and shall rectify any
clerical, arithmetical or similar error in the award. Its decision shall become
part of the award and shall be notified to the parties in the same manner as
the award. The periods of time provided for under paragraph (2) of Article 51
and paragraph (2) of Article 52 shall run from the date on which the
decision was rendered.
SECTION 5
Interpretation, Revision and Annulment of the Award
ARTICLE 50
(1) If
any dispute shall arise between the parties as to the meaning of scope of an
award, either party may request interpretation of the award by an application
in writing addressed to the Secretary-General.
(2) The
request shall, if possible, be submitted to the Tribunal which rendered the
award. If this shall not be possible, a new Tribunal shall be constituted in
accordance with Section 2 of this Chapter. The Tribunal may, if it considers
that the circumstances so require, stay enforcement of the award pending its
decision.
ARTICLE 51
(1) Either
party may request revision of the award by an application in writing addressed
to the Secretary-General on the ground of discovery of some fact of such a
nature as decisively to affect the award, provided that when the award was rendered
that fact was unknown to the Tribunal and to the applicant and that the
applicant’s ignorance of that fact was not due to negligence.
(2) The
application shall be made within 90 days after the discovery of such fact and
in any event within three years after the date on which the award was rendered.
(3) The
request shall, if possible, be submitted to the Tribunal which rendered the
award. If this shall not be possible, a new Tribunal shall be constituted in
accordance with Section 2 of this Chapter.
(4) The
Tribunal may, if it considers that the circumstances so require, stay
enforcement of the award pending its decision. If the applicant requests stay
of enforcement of the award in his application, enforcement shall be stayed
provisionally until the Tribunal rules on such request.
ARTICLE 52
(1) Either
party may request annulment of the award by an application in writing addressed
to the Secretary-General on one or more of the following grounds:
(a) that the Tribunal was not properly
constituted;
(b) that the Tribunal has manifestly
exceeded its powers;
(c) that there was corruption on the
part of a member of the Tribunal;
(d) that there has been a serious
departure from a fundamental rule of procedure; or
(e) that the award has failed to state
the reasons on which it is based.
(2) The
application shall be made within 120 days after the date on which the award was
rendered except that when annulment is requested on the ground of corruption
such application shall be made within 120 days after discovery of the
corruption and in any event within three years after the date on which the
award was rendered.
(3) On
receipt of the request the Chairman shall forthwith appoint from the Panel of
Arbitrators an ad hoc Committee of
three persons. None of the members of the Committee shall have been a member of
the Tribunal which rendered the award, shall be of the same nationality as any
such member, shall be a national of the State party to the dispute or of the
State whose national is a party to the dispute, shall have been designated to
the Panel of Arbitrators by either of those States, or shall have acted as a
conciliator in the same dispute. The Committee shall have the authority to
annul the award or any part thereof on any of the grounds set forth in paragraph (1).
(4) The
provisions of Article 41–45,48,49,53 and 54, and of Chapters VI and
VII shall apply mutatis mutandis to
proceedings before the Committee.
(5) The
Committee may, if it considers that circumstances so require, stay enforcement
of the award pending its decision. If the applicant requests a stay of
enforcement of the award in his application, enforcement shall be stayed
provisionally until the Committee rules on such request.
(6) If
the award is annulled the dispute shall, at the request of either party, be
submitted to a new Tribunal constituted in accordance with Section 2 of this
Chapter.
SECTION 6
Recognition and Enforcement of the Award
ARTICLE 53
(1) The
award shall be binding on the parties and shall not be subject to any appeal or
to any other remedy except those provided for in this Convention. Each party
shall abide by and comply with the terms of the award except to the extent that
enforcement shall have been stayed pursuant to the relevant provisions of this
Convention.
(2) For
the purposes of this Section, “award” shall include any decision
interpreting, revising or annulling such award pursuant to Articles 50, 51
or 52.
ARTICLE 54
(1) Each
Contracting State shall recognize an award rendered
pursuant to this Convention as binding and enforce the pecuniary obligations
imposed by that award within its territories as if it were a final judgment of
a court in that State. A Contracting
State with a federal
constitution may enforce such an award in or through its federal courts and may
provide that such courts shall treat the award as if it were a final judgment
of the courts of a constituent state.
(2) A
party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court
or other authority which such State shall have designated for this purpose a
copy of the award certified by the Secretary-General. Each Contracting State
shall notify the Secretary General of the designation of the competent court or
other authority for this purpose and of any subsequent change in such
designation.
(3) 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.
ARTICLE 55
Nothing in Article 54 shall be construed as derogating from
the law in force in any Contracting
State relating to
immunity of that State or of any foreign State from execution.
CHAPTER V
REPLACEMENT AND DISQUALIFICATION OF CONCILIATORS AND ARBITRATORS
ARTICLE 56
(1) After
a Commission or a Tribunal has been constituted and proceedings have begun, its
composition shall remain unchanged; provided, however, that if a conciliator or
an arbitrator should die, become incapacitated, or resign, the resulting
vacancy shall be filled in accordance with the provisions of Section 2 of
Chapter III or Section 2 of Chapter IV.
(2) A
member of the Commission or Tribunal shall continue to serve in that capacity
notwithstanding that he shall have ceased to be a member of the Panel.
(3) If
a conciliator or arbitrator appointed by a party shall have resigned without
the consent of the Commission or Tribunal of which he was a member, the
Chairman shall appoint a person from the appropriate Panel to fill the
resulting vacancy.
ARTICLE 57
A party may propose to a Commission or Tribunal the
disqualification of any of its members on account of any fact indicating a
manifest lack of the qualities required by paragraph (1) of Article 14.
A party to arbitration proceedings may, in addition, propose the
disqualification of an arbitrator on the ground that he was ineligible for
appointment to the Tribunal under Section 2 of Chapter IV.
ARTICLE 58
The decision on any proposal to disqualify a conciliator or
arbitrator shall be taken by the other members of the Commission or Tribunal as
the case may be, provided that where those members are equally divided, or in
the case of a proposal to disqualify a sole conciliator or arbitrator, or a
majority of the conciliators or arbitrators, the Chairman shall take that
decision. If it is decided that the proposal is well-founded the conciliator or
arbitrator to whom the decision relates shall be replaced in accordance with
the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
CHAPTER VI
COST OF PROCEEDINGS
ARTICLE 59
The charges payable by the parties for the use of the facilities of
the Centre shall be determined by the Secretary-General in accordance with the
regulations adopted by the Administrative Council.
ARTICLE 60
(1) Each
Commission and each Tribunal shall determine the fees and expenses of its
members within limits established from time to time by the Administrative
Council and after consultation with the Secretary-General.
(2) Nothing
in paragraph (1) of this Article shall preclude the parties from agreeing
in advance with the Commission or Tribunal concerned upon the fees and expenses
of its members.
ARTICLE 61
(1) In
the case of conciliation proceedings the fees and expenses of members of the
Commission as well as the charges for use of the facilities of the Centre,
shall be borne equally by the parties. Each party shall bear any other expenses
it incurs in connection with the proceedings.
(2) In
the case of arbitration proceedings the Tribunal shall, except as the parties
otherwise agree, assess the expenses incurred by the parties in connection with
the proceedings, and shall decide how and by whom those expenses, the fees and
expenses of the members of the Tribunal and the charges for the use of the
facilities of the Centre shall be paid. Such decision shall form part of the
award.
CHAPTER VII
PLACE OF PROCEEDINGS
ARTICLE 62
Conciliation and arbitration proceedings shall be held at the seat
of the Centre except as hereinafter provided.
ARTICLE 63
Conciliation and arbitration proceedings may be held, if the parties
so agree,
(a) at the seat of the Permanent Court
of Arbitration or of any other appropriate institution, whether private or
public, with which the Centre may make arrangements for that purpose; or
(b) at any other place approved by the
Commission or Tribunal after consultation with the Secretary-General.
CHAPTER VIII
DISPUTES BETWEEN CONTRACTING STATES
ARTICLE 64
Any dispute arising between Contracting States concerning the
interpretation or application of this Convention which is not settled by negotiation
shall be referred to the International Court of Justice by the application of
any party to such dispute, unless the States concerned agree to another method
of settlement.
CHAPTER IX
AMENDMENT
ARTICLE 65
Any Contracting
State may propose amendment
of this Convention. The text of a proposed amendment shall be communicated to
the Secretary-General not less than 90 days prior to the meeting of the
Administrative Council at which such amendment is to be considered and shall
forthwith be transmitted by him to all the members of the Administrative
Council.
ARTICLE 66
(1) If
the Administrative Council shall so decide by a majority of two-thirds of its
members, the proposed amendment shall be circulated to all Contracting States
for ratification, acceptance or approval. Each amendment shall enter into force
30 days after dispatch by the depositary of this Convention of a notification
to Contracting States that all Contracting States have ratified, accepted or
approved the amendment.
(2) No
amendment shall affect the rights and obligations under this Convention of any Contracting State or of any of its constituent
subdivisions or agencies, or of any national of such State arising out of
consent to the jurisdiction of the Centre given before the date of entry into
force of the amendment.
CHAPTER X
FINAL PROVISIONS
ARTICLE 67
This Convention shall be open for signature on behalf of States
members of the Bank. It shall also be open for signature on behalf of any other
State which is a party to the Statute of the International Court of Justice and
which the Administrative Council, by a vote of two-thirds of its members, shall
have invited to sign the Convention.
ARTICLE 68
(1) This
Convention shall be subject to ratification, acceptance or approval by the signatory
States in accordance with their respective constitutional procedures.
(2) This
Convention shall enter into force 30 days after the date of deposit of the
twentieth instrument of ratification, acceptance or approval. It shall enter
into force for each State which subsequently deposits its instrument of
ratification, acceptance of approval 30 days after the date of such deposit.
ARTICLE 69
Each Contracting
State shall take such
legislative or other measures as may be necessary for making the provisions of
this Convention effective in its territories.
ARTICLE 70
This Convention shall apply to all territories for whose
international relations a Contracting State is responsible, except those which
are excluded by such State by written notice to the depositary of this
Convention either at the time of ratification, acceptance or approval or
subsequently.
ARTICLE 71
Any Contracting
State may denounce this
Convention by written notice to the depositary of this Convention. The
denunciation shall take effect six months after receipt of such notice.
ARTICLE 72
Notice by a Contracting State pursuant to Article 70 or 71
shall not affect the rights or obligations under this Convention of that State
or of any of its constituent subdivisions or agencies or of any national of
that State arising out of consent to the jurisdiction of the Centre given by
one of them before such notice was received by the depositary.
ARTICLE 73
Instruments of ratification, acceptance or approval of this
Convention and of amendments thereto shall be deposited with the Bank which
shall act as the depositary of this Convention. The depositary shall transmit
certified copies of this Convention to States members of the Bank and to any
other State invited to sign the Convention.
ARTICLE 74
The depositary shall register this Convention with the Secretariat
of the United Nations in accordance with Article 102 of the Charter of the
United Nations and the Regulations thereunder adopted by the General Assembly.
ARTICLE 75
The depositary shall notify all signatory States of the following:
(a) signatures in accordance with
Article 67;
(b) deposits of instruments of
ratification, acceptance and approval in accordance with Article 73;
(c) the date on which this Convention
enters into force in accordance with Article 68;
(d) exclusions from territorial
application pursuant to Article 70;
(e) the date on which any amendment of
this Convention enters into force in accordance with Article 66; and
(f) denunciations in accordance
with Article 71.
Done at Washington in the
English, French and Spanish languages, all three texts being equally authentic,
in a single copy which shall remain deposited in the archives of the
International Bank for Reconstruction and Development, which has indicated by
its signature below its agreement to fulfil the functions with which it is
charged under this Convention.
(Here follow the signatures)