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ICSID Implementation Act 1990

  • - C2004A04038
  • No longer in force
Act No. 107 of 1990 as made
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
Administered by: Attorney-General's
Date of Assent 18 Nov 1990
Date of repeal 10 Mar 2016
Repealed by Amending Acts 1990 to 1999 Repeal Act 2016
 

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
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 periods
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;

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(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 organizations.

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

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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.

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(2) (a) The Commission shall consist of a sole
conciliator or any uneven number of conciliators
appointed as the parties shall agree.
(2) (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 cooperate 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.

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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.
(2) (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

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(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 inquiries 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.

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(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 or 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
a 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

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authority to annul the award or any part thereof on
any of the grounds set forth in paragraph (1).
(4) The provisions of Articles 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 the
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 a 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

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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 the 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

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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 or
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 Articles
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.".