Commonwealth Numbered Regulations - Explanatory Statements

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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (PRIVILEGES AND IMMUNITIES) REGULATIONS 1991 NO. 42

Statutory Rules 1991 No. 42

International Organizations (Privileges and Immunities) Act 1963

International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations

Issued by the authority of the Minister of State for Foreign Affairs and Trade.

Section 13 of the International Organizations (Privileges and Immunities) Act 1963 (the Act) provides that the Governor-General may make Regulations for the purposes of the Act.

The purpose of these Regulations is to provide for the granting of the privileges and immunities required under the terms of the Convention on the Settlement of Investment Disputes (the Convention) which Australia has signed and will ratify in May 1991. The ratification will take effect in June 1991.

Details of the Regulations are as follows:

Regulation 1 is a formal provision.

Regulation 2 provides that the Regulations are to commence on the commencement of Part 3 of the ICSID Implementation Act 1990. Part 3 amends the International Organizations (Privileges and Immunities) Act 1963 by inserting, inter alia, section 9A which provides that regulations made under the Act may confer upon conciliators, arbitrators. parties, agents, counsel, advocates, witnesses and experts in International Centre for Settlement of Investment Disputes (ICSID) proceedings, the privileges and immunities required to give effect to Articles 21, 22 and 24 of the Convention.

Regulation 3 is a definition clause.

Regulation 4 declares ICSID which is established by the Convention, to be an international organization to which the Act applies.

Regulation 5 endows ICSID with legal personality and specifically with the power to contract, to own property and to institute legal proceedings.

Regulation 6 provides ICSID with immunity from all legal process, inviolability of its archives, exemption from liability to collect or pay taxes or customs duties, and with absence of censorship for official correspondence and other official communications.

Regulation 7 provides Council members of ICSID's Administrative Council and officers in the Secretariat immunity from suit and from other legal process in respect of acts and things done in an official capacity.

Regulation 8 provides that the Chairman and members of the Administrative Council are exempt from taxation of allowances received from ICSID. It also provides for exemption from taxation of salaries and allowances received by office holders in the Secretariat. In addition, under subregulation 8(4) these classes of person are granted exemption from the application of laws relating to immigration and the registration of aliens, exemption from any obligation to perform national service, exemption from currency or exchange restrictions to the extent accorded to officials of comparable tank of diplomatic missions, and repatriation facilities akin to those accorded to a diplomatic agent in time of international crisis. Subregulation 8(1) restricts these privileges and immunities to persons who are not Australian citizens.

Subregulation 9(1) provides that a person who is a conciliator or arbitrator appointed under the Convention, is immune from legal process in respect of his or her official acts.

Subregulation 9(2) provides that any fees or allowances payable to that person, which would otherwise be subject to taxation because either the proceedings were conducted in Australia or the fees or allowances were paid in Australia, are to be exempt from Australian taxation.

Subregulation 9(3) confers upon conciliators and arbitrators the same privileges as those conferred on Council members and officers under subregulation 8(4).

Subregulation 10(2) provides that a relevant person (defined in subregulation 10(1) as a party, agent. counsel, advocate, witness or expert in ICSID proceedings) is immune from all legal process in respect of acts relating to the proceedings.

Subregulation 10(3) provides that in connection with his or her travel to and from, and stay At the location of the ICSID proceedings, a relevant person has the same privileges and immunities as those specified for conciliators and arbitrators under subregulation 9(3).

Subregulation 10(4) limits subregulation 10(3) to a relevant person who is not an Australian citizen and whose travel or stay is undertaken specifically to take part in the proceedings.

Regulation 11 provides that ICSID may waive any privilege or immunity specified in the Regulations.