ICSID Implementation Act 1990
No. 107 of 1990
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
[Assented to 18 December 1990]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
PART 1—PRELIMINARY
Short title
1. This Act may be cited as the ICSID Implementation Act 1990.
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.
PART 2—AMENDMENTS OF THE INTERNATIONAL
ARBITRATION ACT 1974
Principal Act
3. In this Part, “Principal Act” means the International Arbitration Act 19741.
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…
Overview
The ICSID Implementation Act 1990 was enacted by the Commonwealth Parliament to align Australia's domestic law with its international obligations under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. This Act was assented to on 18 December 1990 and serves to amend the International Arbitration Act 1974 and the International Organizations (Privileges and Immunities) Act 1963. The policy objective of the Act is to provide a legal framework in Australia for the conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States as stipulated by the Convention. The Act ensures that Australia's domestic legal system recognises and enforces awards made under the Convention, and provides for the privileges and immunities of conciliators, arbitrators, and parties involved in such proceedings.
Scope and Application
The ICSID Implementation Act 1990 applies to the Commonwealth of Australia and is designed to fulfil Australia's obligations under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The Act amends the International Arbitration Act 1974 and the International Organizations (Privileges and Immunities) Act 1963 to provide for the establishment and operation of the International Centre for Settlement of Investment Disputes (ICSID) within the Australian legal framework. This includes the binding nature of ICSID awards, the designation of Australian courts for enforcement, and the conferral of immunities and privileges on ICSID officials and participants in investment dispute proceedings. The Act's provisions extend to all territories for whose international relations Australia is responsible, unless explicitly excluded by Australia. The Act does not specify exclusions or thresholds but allows for the extension or restriction of its application through subordinate instruments.
Key Provisions
- The ICSID Implementation Act 1990 introduces significant amendments to the International Arbitration Act 1974 and the International Organizations (Privileges and Immunities) Act 1963 to align Australian law with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (Investment Convention). Section 32 of the Act states that Chapters II to VII of the Investment Convention will have the force of law in Australia, thereby making the Convention's provisions applicable to investment disputes within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID or the Centre). Section 33 mandates that awards made by the Centre are binding on the parties and cannot be appealed or remedied except as provided under the Investment Convention. Section 34 clarifies that other laws relating to the recognition and enforcement of arbitral awards do not apply to disputes within the Centre's jurisdiction or to awards made by the Centre.
- The Act also imposes certain obligations on the parties involved in ICSID proceedings. Section 35 designates the Supreme Courts of each State and Territory to enforce awards made by the Centre. Section 36 provides that a certificate signed by the Secretary of the Department of Foreign Affairs and Trade, stating that a country is a Contracting State, is admissible as prima facie evidence in legal proceedings. Section 37 outlines the representation options for parties in conciliation or arbitration proceedings, ensuring that parties can appear in person or be represented by legal practitioners or other individuals of their choice without violating local legal practice regulations.
- Regarding the consequences of breaches, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. However, the binding nature of ICSID awards and the provision that awards are not subject to appeal or other remedies except as provided in the Investment Convention (Section 33) implies that non-compliance with an ICSID award could potentially lead to enforcement actions in domestic courts, as stipulated in Section 54 of the Investment Convention. Additionally, the Act does not specify penalties for non-compliance with its provisions, leaving the interpretation and enforcement of such breaches to be handled within the framework of the Investment Convention and Australian domestic law.
- Area of Law
- International Law
- Investment Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Delegation & Subordinate Legislation
- Enforcement Powers
- Exemptions & Exclusions
- Rights & Protections
