Section 1 - International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991 - International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991 | Zoe
International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991
1International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991
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International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991
Statutory Rules 1991 No. 42 as amended
made under the
International Organisations (Privileges and Immunities Act 1963
This compilation was prepared on 10 August 2000
taking into account amendments up to SR 2000 No. 201
Prepared by the Office of Legislative Drafting
Attorney-General’s Department, Canberra
Commonwealth Coat of Arms
International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991
Statutory Rules 1991 No. 42 as amended
made under the
International Organisations (Privileges and Immunities Act 1963
Contents
Page
1 Name of Regulations [see Note 1]
2 Commencement [see Note 1]
3 Definitions
4 Act applies to Centre
5 Centre to have juridical personality and legal capacity
6 Privileges and immunities of Centre
7 Immunity from suit and other legal process: Council members and officers
8 Other privileges and immunities of Council members and officers
9 Privileges and immunities of conciliators and arbitrators
10 Privileges and immunities of other persons concerned with proceedings
10A Indirect tax concession scheme — acquisitions
10B Indirect tax concession scheme — conditions
10C Indirect tax concession scheme — claims for payment
10D Indirect tax concession scheme — manner of payment
11 Waiver of privileges and immunities
12 Delegation
Notes
1 Name of Regulations [see Note 1]
These Regulations are the International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991.
2 Commencement [see Note 1]
These Regulations commence on the commencement of Part 3 of the ICSID Implementation Act 1990.
3 Definitions
In these Regulations, unless the contrary intention appears:
Act means the International Organisations (Privileges and Immunities) Act 1963.
arbitrator means a person referred to in paragraph 9A (1) (b) or (c) of the Act.
Centre means the International Centre for Settlement of Investment Disputes established by the Investment Convention.
conciliator means a person referred to in paragraph 9A (1) (a) of the Act.
Council member means the Chairman or a member of the Administrative Council of the Centre.
member of the family, in relation to a person (the first person), means a person who is:
(a) a part of the first person’s household; and
(b) any of the following members of the first person’s family:
(i) the first person’s spouse;
(ii) an unmarried child who is under the age of 21 years;
(iii) an unmarried child who is under the age of 25 years and is undertaking full-time studies at an Australian educational institution;
(iv) an unmarried child who is incapable of self‑support because of a physical or mental disability.
proceedings means proceedings under the Investment Convention.
officer means a person, other than a Council member, who holds an office in the Secretariat.
Secretariat means the Secretariat of the Centre.
taxable supply has the meaning given by section 195-1 of the GST Act.
tax invoice has the meaning given by section 29-70 of the GST Act.
4 Act applies to Centre
The Centre is an international organisation to which the Act applies.
5 Centre to have juridical personality and legal capacity
The Centre:
(a) is a body corporate; and
(b) may sue and, subject to regulation 6, be sued in its corporate name; and
(c) has the capacity, in its corporate name:
(i) to contract; and
(ii) to acquire, hold and dispose of real and personal property.
6 Privileges and immunities of Centre
The Centre has the privileges and immunities specified in paragraphs 1, 4, 6, 7 and 11 of the First Schedule to the Act.
7 Immunity from suit and other legal process: Council members and officers
A person who is a Council member or an officer has the immunity specified in paragraph 1 of Part 1 of the Fourth Schedule to the Act.
8 Other privileges and immunities of Council members and officers
(1) This regulation applies only to persons who are not Australian citizens.
(2) A Council member is exempt from taxation on emoluments (other than salary) received from the Centre.
(3) An officer is exempt from taxation on salary and other emoluments received from the Centre.
(4) A person who is a Council member or an officer has the privileges and immunities specified in paragraphs 3, 4, 5 and 6 of Part 1 of the Fourth Schedule to the Act.
9 Privileges and immunities of conciliators and arbitrators
(1) A person who is a conciliator or an arbitrator has immunity from legal process with respect to acts performed by the person in the exercise of his or her functions as an arbitrator or a conciliator.
(2) Where:
(a) a person receives fees or expense allowances in his or her capacity as a conciliator or an arbitrator in proceedings; and
(b) but for this subregulation, the person would be liable to taxation on the fees or allowances by reason only of the occurrence of either or both of the following circumstances:
(i) the proceedings (or part of the proceedings) were conducted in Australia;
(ii) the fees or expense allowances were paid in Australia;
the person is exempt from that taxation.
(3) A person who is a conciliator or an arbitrator and who is not an Australian citizen has the privileges and immunities specified in paragraphs 3, 4, 5 and 6 of Part 1 of the Fourth Schedule to the Act.
10 Privileges and immunities of other persons concerned with proceedings
(1) In this regulation, relevant person means a person who is a party, agent, counsel, advocate, witness or expert in proceedings.
(2) A relevant person has immunity from legal process with respect to acts performed by the person in the exercise of his or her function as a party, agent, counsel, advocate, witness or expert in proceedings.
(3) Subject to subregulation (4), a relevant person has, in connection with the person's travel to and from, and his or her stay at, the place where the proceedings are held, the privileges and immunities specified in paragraphs 3, 4, 5 and 6 of Part 1 of the Fourth Schedule to the Act.
(4) Subregulation (3) applies only if:
(a) the relevant person is not an Australian citizen; and
(b) the relevant person's travel or stay, as the case may be, is undertaken in the exercise of his or her function as a party, agent, counsel, advocate, witness or expert in proceedings.
10A Indirect tax concession scheme — acquisitions
(1) For paragraph 11C (1) (a) of the Act, acquisitions by the Centre are covered by these Regulations.
(2) However, an acquisition by the Centre is covered by these Regulations only if, at the time of the acquisition, it was intended for the official use of the Centre.
(3) For paragraph 11C (1) (a) of the Act, the acquisition of a locally-manufactured motor vehicle by a person mentioned in subregulation (4), for the personal use of the person or of a member of the family of the person, is covered by these Regulations if:
(a) the vehicle is acquired within the first 6 months of the person’s installation in Australia and the person has not previously received:
(i) a concession under section 11C of the Act for the acquisition of another motor vehicle; or
(ii) an exemption from indirect tax under section 11B of the Act on the importation of another motor vehicle; or
(b) the vehicle is acquired in exceptional circumstances to replace a motor vehicle for which the person has received:
(i) a concession under section 11C of the Act; or
(ii) an exemption from indirect tax under section 11B of the Act.
(4) For subregulation (3), the persons are:
(a) a person who is a Council member or an officer; and
(b) a person who:
(i) is a conciliator or an arbitrator; and
(ii) is not an Australian citizen; and
(c) a person who is a party, agent, counsel, advocate, witness or expert in proceedings:
(i) who is not an Australian citizen; and
(ii) whose travel or stay is undertaken in the exercise of his or her function as a party, agent, counsel, advocate, witness or expert in proceedings.
(5) In paragraph (3) (b):
exceptional circumstances, in relation to the replacement of a motor vehicle, includes the original vehicle being stolen or damaged beyond repair.
Note Section 11C of the Act establishes an indirect tax concession scheme that provides for reimbursement by the Commissioner of Taxation of indirect tax payable for acquisitions covered by these Regulations.
10B Indirect tax concession scheme — conditions
(1) For paragraph 11C (3) (a) of the Act, the amount mentioned in subsection 11C (1) of the Act is payable only if the following conditions are satisfied:
(a) the person who made the acquisition is subject to an agreement in writing between the Centre and the Commonwealth to repay to the Commonwealth the amount worked out under subregulation (2) if:
(i) for a payment in relation to an acquisition of a motor vehicle — the person disposes of the motor vehicle (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory within 3 years after it was acquired; or
(ii) for a payment in relation to an acquisition of goods other than a motor vehicle — the person disposes of the goods (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory within 2 years after they were acquired; or
(iii) for a payment in relation to an acquisition of services or any other acquisition — the person assigns the services to another person (except to another person entitled to an indirect tax concession under these Regulations or another law of the Commonwealth in relation to similar acquisitions) in Australia or an external Territory;
(b) if the person has breached a previous agreement under paragraph (a) — the person complies with any written requirements, including a requirement to give security, that the Minister considers necessary to ensure that the person complies with the agreement.
(2) For subparagraphs (1) (a) (i) and (ii):
(a) a sale of goods to a finance company as part of a sale and lease-back arrangement is not a disposal of the goods; and
(b) a person (the first person) is taken to have disposed of goods to which 1 of those subparagraphs applies within the period mentioned in that subparagraph to a person who is not entitled to an indirect tax concession in relation to similar acquisitions if:
(i) the first person disposes of the goods to a person (the second person) who is entitled to the concession; and
(ii) the second person disposes of the goods to another person; and
(iii) the series of disposals of the goods to other persons continues (if necessary) until the goods are eventually acquired, within the period mentioned in that paragraph, by a person who is not entitled to the concession.
(3) For paragraph (1) (a), the amount to be repaid is:
(a) for an acquisition to which subparagraph (1) (a) (i) or (ii) applies — the proportion of the amount paid under section 11C of the Act in relation to the acquisition that is equal to the proportion of the period mentioned in that subparagraph remaining after the person disposes of the goods; and
(b) for an acquisition to which subparagraph (1) (a) (iii) applies — the amount paid under section 11C of the Act in relation to the acquisition.
(4) However, for an acquisition to which subparagraph (1) (a) (i) or (ii) applies, a person is not required to repay an amount paid under section 11C of the Act in relation to a lease payment that relates to a period before the person disposes of the goods.
(5) The amount mentioned in subsection 11C (1) of the Act is not payable if:
(a) an amount was payable for a similar acquisition; and
(b) the Minister tells the person in writing that, in his or her opinion, the person’s reasonable needs were met by that acquisition.
(6) In this regulation, person includes the Centre.
10C Indirect tax concession scheme — claims for payment
A claim for payment under regulation 10A:
(a) must be signed by, or for, the Chairman of the Administrative Council of the Centre; and
(b) must be sent with the tax invoice for the acquisition; and
(c) must be sent:
(i) for an acquisition of a motor vehicle — to the Protocol Branch of the Department of Foreign Affairs and Trade; or
(ii) in any other case — to the Australian Taxation Office; and
(d) for an acquisition of a motor vehicle or an acquisition of real property by lease — may be sent at any time after the acquisition; and
(e) for an acquisition that is subject to an arrangement between the Centre and the Commonwealth for reimbursement of indirect tax, except an acquisition of real property by lease — may only be sent:
(i) in accordance with the arrangement; or
(ii) if the arrangement does not specify a time when a claim may be sent:
(A) with another claim; or
(B) at least 3 months after another claim from the Commonwealth Secretariat is sent; and
(f) for an acquisition that is not mentioned in paragraph (d)
or (e) — may only be sent:
(i) with another claim; or
(ii) at least 3 months after another claim from the Centre.
Note Paragraphs 10C (e) and (f) are intended to limit the number of claims from the Centre to one in each quarter, to minimise delays in the processing of claims.
10D Indirect tax concession scheme — manner of payment
For paragraph 11C (3) (b) of the Act, the amount is to be paid to a single recipient, or an account, nominated by, or for, the Chairman of the Administrative Council of the Centre.
11 Waiver of privileges and immunities
A privilege or immunity specified or referred to in these Regulations may be waived by the Centre.
12 Delegation
(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to a person the Minister’s powers under paragraphs 10B (1) (b) and (5) (b) of these Regulations.
(2) A power delegated under subregulation (1), when exercised by the delegate, is taken to have been exercised by the Minister.
(3) A delegation of power under subregulation (1) does not prevent the exercise of the power by the Minister.
Notes to the International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991
Note 1
Note: The International Centre for Settlement of Investment Disputes (Privileges and Immunities) Regulations 1991 (in force under the International Organisations (Privileges and Immunities Act 1963) as shown in this compilation comprise Statutory Rules 1991 No. 42 amended as indicated in the Tables below.
Note: See Table A for information about application, saving or transitional provisions.
These Regulations amend Regulations made under the International Organisations (Privileges and Immunities) Act 1963 (the Act) to apply the indirect tax concession scheme under section 11C of the Act to the organisations covered by those Regulations and officers and high officers of those organisations.