Treaty of Peace (Austria) Regulations (Cth)

STATUTORY RULES

1921. No. 45.

REGULATIONS UNDER THE TREATIES OF PEACE (AUSTRIA AND BULGARIA) ACT 1920.

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Treaties of Peace (Austria and Bulgaria) Act 1920, to come into operation forthwith, and they shall be deemed to have come into operation as from the date on which the Treaty of Peace with Austria signed at Saint-Germain-En-Laye on the 10th September, 1919, came into force.

Dated this twenty-third day of February, 1921.

FORSTER,

Governor-General.

By His Excellency’s Command,

W. MASSY GREENE,

Minister of State for Trade and Customs.

 

Treaty of Peace (Austria) Regulations.

Short title.

1. These Regulations may be cited as the Treaty of Peace (Austria) Regulations.

Definitions.

2. In these Regulations, unless the contrary intention appears—

“Nationals,” in relation to any country, includes the subjects or citizens of that country and any company or corporation incorporated therein according to the law of that country;

“the Minister” means the Minister of State for Trade and Customs;

“the Public Trustee” means the Public Trustee appointed under the Trading with the Enemy Act 1914-1916;

“the Treaty” means The Treaty of Peace with Austria (including the protocol and declarations annexed thereto) signed at Saint-Germain-En-Laye on the tenth day of September, One thousand nine hundred and nineteen, by a representative of the Commonwealth of Australia on behalf of His Majesty the King.

Operation of Sections IV. to VII. of Part X. ofTreaty.

3. Sections IV. to VII. of Part X. of the Treaty, which are set out in the Schedule to these Regulations, shall have full force and effect on and from the commencement of these Regulations.

Delegation by Public Trustee.

4. (1) The Public Trustee may, in relation to any particular matters or class of matters or to any particular State or part of the Commonwealth or Territory under the authority of the Commonwealth, by writing under his hand delegate all or any of his powers and functions under these Regulations (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the State or part of the Commonwealth or Territory specified in the instrument of delegation.

(2) Every delegation under this regulation shall be revocable at will, and no delegation shall prevent the exercise of any power by the Public Trustee.

 

Property of Austrian nationals— how charged

5. (1)All property, rights and interests within the Commonwealth or any Territory under the authority of the Commonwealth belonging to nationals of the former Austrian Empire at the date when the Treaty came into force (not being property, rights or interests acquired under any general licence issued by or on behalf of the Commonwealth or any authority thereof), and the net proceeds of their sale, liquidation or other dealings therewith, are hereby charged—

(a) in the first place, with payment of the amounts due in respect of claims by British nationals with regard to their property, rights and interests (including companies and associations in which they are interested) in the territories of the former Austrian Empire, or debts owing to them by Austrian nationals, and with payment of any compensation awarded by the Mixed Arbitral Tribunal, or by an arbitrator appointed by that Tribunal in pursuance of paragraph (e) of Article 249 of the Treaty, and with payment of claims growing out of acts committed by the former Austro-Hungarian Government or by any Austrian authorities since the twenty-eighth day of July, and before the twelfth day of August, One thousand nine hundred and fourteen; and

(b) secondly, with payment of the amounts due in respect of claims by British nationals with regard to their property, rights and interests in the territories of Germany, Hungary, Bulgaria, and Turkey, in so far as those claims are not otherwise satisfied:

Provided that any particular property, rights or interests so charged may at any time if the Governor-General thinks fit, be released from the charge so created.

(2) Any person who, without the consent of the Public Trustee, transfers, parts with, or otherwise deals in any property, right or interest so charged, shall be guilty of an offence against these Regulations.

(3) Every person owning or having the control or management of any property, right or interest, subject to the charge (including where the property, right or interest consists of shares, stocks or other securities issued by a company, municipal authority or other body, or any right or interest therein, such company, authority or body) shall, unless particulars thereof have already been furnished to the Public Trustee in accordance with the Trading with the Enemy Act 1914-1916, within one month after the date of the commencement of these Regulations by notice in writing communicate the fact to the Public Trustee, and shall furnish the Public Trustee with such particulars in relation thereto as the Public Trustee requires, and if any person fails to do so or furnishes any false information he shall on summary conviction be guilty of an offence against these Regulations.

(4) If any person called upon to pay any money or to transfer or otherwise to deal with any property, rights or interests has reason to suspect that the same are subject to a charge under this regulation, he shall, before paying, transferring, or dealing with the property, rights or interests, report the matter to the Public Trustee, and comply with any directions that the Public Trustee gives with respect thereto, and if any person fails to comply with the provisions of this sub-regulation he shall be guilty of an offence against these Regulations.

(5) The Minister may by order vest in the Public Trustee any property, rights and interests so charged, or the right to transfer the same, and for that purpose section 91 of the Trading with the Enemy Act 1914-1916 shall apply as if the property rights and interests were property belonging to an enemy or enemy subject.

(6) Where the property charged consists of inscribed or registered stock, shares, or other securities, any company, municipal authority, or other body by whom the securities were issued or are managed shall, on the application of the Public Trustee, enter the Public Trustee in the books in which the securities are inscribed or registered as the proprietor of the securities so charged, and the Public Trustee shall, subject to the approval of the Minister, have power to sell or otherwise deal with the securities as proprietor of which he is so registered or inscribed.

(7) Where the property, right or interest vested in the Public Trustee by the Minister consists of land or any estate or interest in land, and a copy of the vesting order, certified under the hand of the Public Trustee, is lodged with the Registrar-General or Registrar of Titles or other proper officer of the State or part of the Commonwealth in which the land is situated, he shall, whether the duplicate grant or certificate of title in respect of the property is produced or not, register it in the register and in the manner as nearly as may be in which dealings with land or any estate or interest therein are registered, and shall deal with and give effect to the registration as if it were a grant or conveyance or memorandum or instrument of transfer of the land or estate or interest therein to the Public Trustee duly executed under the laws in force in that State or part of the Commonwealth.

Transfer, &c., by Austrian national prohibited.

6. (1)No person who is an Austrian national shall, without the consent in writing of the Public Trustee, sell, transfer, mortgage, or otherwise dispose of any property, or enter into any contract or agreement for the sale, transfer, mortgage, or disposal of any property in which he has any estate or interest; and any person who commits a contravention of this sub-regulation, shall be guilty of an offence.

(2) Any sale, transfer, mortgage, disposal, contract or agreement, made, granted, or entered into, in contravention of this regulation, shall be void and of no effect.

(3) Any sale, transfer, mortgage or disposal of property by an Austrian national, and any contract or agreement for the sale, transfer; mortgage or disposal of property by an Austrian national, made granted, or entered into since the sixteenth day of July, One thousand nine hundred and twenty, and before the date of making this regulation, shall be absolutely void and of no effect.

(4) The Public Trustee may, by notice in writing, exempt from the provisions of this regulation any transaction or class of transactions entered into by an Austrian national.

(5) In this regulation “Austrian national” means a person who is a subject of Austria.

Power to inspect books, documents &c.

7. (1) Where it appears to the Public Trustee that an offence has been, or is likely to be committed by any person, firm, or company against either of the last two preceding regulations the Public Trustee or any person authorized in writing by him may—

(a) inspect, and, if thought fit, impound, any books or documents belonging to or in the possession or control of the person, firm or company; and

(b) require any person whom the Public Trustee believes to be able to give information or produce books or documents respecting the business or trade of the person, firm or company to give such information or produce such books or documents; and

(c) if accompanied by an officer of police enter into, break open and search any house, premises or place used or believed by the Public Trustee to be used in connexion with such business or trade or in which the Public Trustee believes there are any books or documents belonging to the person, firm or company.

(2) Any person who obstructs or interferes with the Public Trustee or any person authorized by the Public Trustee in the exercise of any power conferred upon him in pursuance of this regulation, or who refuses or fails to produce any book or document or to give any information when required to do so in pursuance of this section, shall be guilty of an offence.

Maintenance of certain dependants.

8. Notwithstanding anything contained in these Regulations there may, if the Governor-General so directs, be paid out of the net proceeds of any property retained by the Commonwealth, under Article 249 of the Treaty, such sums as the Public Trustee deems sufficient for the maintenance in the Commonwealth of the wife and children of the person to whom the property belonged immediately prior to the coming into force of the Treaty:

Provided that no sums shall be paid in pursuance of this regulation—

(a) after the expiration of three years from the commencement thereof; or

(b) in cases where the wife was not, prior to her marriage, a natural-born British subject.

Power of Public Trustee to deal with money paid to him.

9. (1)The Public Trustee may place on deposit with any bank, or invest in any securities approved by the Treasurer, any moneys paid to him under these Regulations, or received by him from property vested in him under these Regulations.

(2) The Public Trustee shall deal in such manner as the Minister directs with any interest or dividends received on account of such deposits or investments.

Public Trustee may satisfy claims against property of Austrian national.

10. Notwithstanding anything contained in these Regulations the Public Trustee may, in such cases as he thinks fit, satisfy out of the property, rights and interests of any Austrian, national vested in him under these Regulations, claims made against such property.

Recommencement of period of prescription.

11. The time at which the period of prescription, or limitation of right of action referred to in Article 252 of the Treaty shall begin again to run shall be at the expiration of six months after the coming into force of the Treaty, and the period to be allowed within which presentation of negotiable instruments for acceptance or payment and notice of non-acceptance or non-payment or protest may be made under Article 253 of the Treaty shall be ten months from the coming into force of the Treaty.

Confirmation of Rules affecting closing of contracts.

12. Rules made during the war by any recognised Exchange or commercial association providing for the closure of contracts entered into before the war by an enemy, and any action taken thereunder are confirmed subject to the provisos contained in paragraph 4 (a) of the annex to section V. of Part X. of the Treaty.

Power to defer payment.

13. (1) The Minister may defer, for such time, not exceeding two years, as he thinks fit, the payment of any amount owing by a debtor.

(2) When the payment of an amount owing by a debtor has been deferred by the Minister the debtor shall pay interest at the rate of 6 per centum on the amount of which payment is deferred, and the interest shall be calculated from such date as is specified by the Public Trustee.

Application of Patents, Trade Marks and Designs Act to Austrian nationals.

14. So far as may be necessary for the purpose of Article 250 of the Treaty, the Patents, Trade Marks and Designs Act 1914-1915 (except subsection (3) of section 3 thereof) and any regulations made thereunder, shall, in relation to Austrian nationals, continue in force after the Treaty comes into force as if reference therein to subjects of a State at war with the King included reference to Austrian nationals.

Duly qualified tribunal under Article 262 of Treaty.

15. The duly qualified tribunal for the purposes of Article 262 of the Treaty shall be the Attorney-General of the Commonwealth.

Audit of accounts.

16. The accounts of the Public Trustee shall be subject to audit by the Auditor-General.

Prosecution of offences.

17. Offences against these Regulations may be prosecuted summarily or upon indictment.

Punishment of offences.

18. The punishment for an offence against these Regulations shall be as follows:—

(a) If the offence is prosecuted summarily—a fine not exceeding Five hundred pounds or imprisonment for any term not exceeding twelve months, or both;

(b) if the offence is prosecuted upon indictment —a fine of any amount or imprisonment for not more than seven years, or both.

THE SCHEDULE

Copy of Sections IV. to VII. of Part X. of Treaty of Peace between the Allied and Associated Powers and Austria.

Section IV.—Property, Rights and Interests.

Article 249.

The question of private property, rights and interests in an enemy country shall be settled according to the principles laid down in this Section and to the provisions of the Annex hereto.

(a) The exceptional war measures and measures of transfer (defined in paragraph 3 of the Annex hereto) taken in the territory of the former Austrian Empire with respect to the property, rights and interests of nationals of Allied or Associated Powers, including companies and associations in which they are interested, when liquidation has not been completed, shall be immediately discontinued or stayed and the property, rights and interests concerned restored to their owners.

(b) Subject to any contrary stipulations which may be provided for in the present Treaty, the Allied and Associated Powers reserve the right to retain and liquidate all property, rights and interests which belong at the date of the coming into force of the present Treaty to nationals of the former Austrian Empire, or companies controlled by them, and are within the territories, colonies, possessions and protectorates of such Powers (including territories ceded to them by the present Treaty) or are under the control of those Powers.

The liquidation shall be carried out in accordance with the laws of the Allied or Associated State concerned, and the owner shall not be able to dispose of such property, rights or interests nor to subject them to any charge without the consent of that State.

Persons who within six months of the coming into force of the present Treaty show that they have acquired ipso facto in accordance with its provisions the nationality of an Allied or Associated Power, including those who under Articles 72 or 76 obtain such nationality with the consent of the competent authorities, or who under Articles 74 or 77 acquire such nationality in virtue of previous rights of citizenship (pertinenza) will not be considered as nationals of the former Austrian Empire within the meaning of this paragraph.

(c) The price or the amount of compensation in respect of the exercise of the right referred to in paragraph (b) will be fixed in accordance with the methods of sale or valuation adopted by the laws of the country in which the property has been retained or liquidated.

(d) As between the Allied and Associated Powers and their nationals on the one hand and nationals of the former Austrian Empire on the other hand as also between Austria on the one hand and the Allied and Associated Powers and their nationals on the other hand, all the exceptional war measures, or measures of transfer, or Acts done or to be done in execution of such measures as defined in paragraphs 1and 3 of the Annex hereto, shall be considered as final and binding upon all persons except as regards the reservations laid down in the present treaty.

(e) The nationals of Allied and Associated Powers shall be entitled to compensation in respect of damage or injury inflicted upon their property, rights or interests, including any company or association in which they are interested in the territory of the former Austrian Empire, by the application either of the exceptional war measures or measures of transfer mentioned in paragraphs 1 and 3 of the Annex herein. The claims made in this respect by such nationals shall be investigated and the total of the compensation shall be determined by the Mixed Arbitral Tribunal provided for in Section VI. or by an arbitrator appointed by that Tribunal. This compensation shall be borne by Austria, and may be charged upon the property of nationals in the former Austrian Empire, or companies controlled by them, as defined in paragraph (b) within the territory or under the control of the claimant’s State. This property may be constituted as a pledge for enemy liabilities under the conditions fixed by paragraph 4 of the Annex hereto. The payment of this compensation may be made by the Allied or Associated State and the amount will be debited to Austria.

(f) Whenever a national of an Allied or Associated Power is entitled to property which has been subjected to a measure of transfer in the territory of the former Austrian Empire and expresses a desire for its restitution, his claim for compensation in accordance with paragraph (c) shall be satisfied by the restitution of the said property if it still exists in specie.

In such case Austria shall take all necessary steps to restore the evicted owner to the possession of his property, free from all encumbrances or burdens with which it may have been charged after the liquidation, and to indemnify all third parties injured by the restitution.

If the restitution provided for in this paragraph cannot be effected, private agreements arranged by the intermediation of the Powers concerned or the Clearing Offices provided for in the Annex to Section III. may be made, in order to secure that the national of the Allied or Associated Power may secure compensation for the injury referred to in paragraph (c) by the grant of advantages or equivalents which he agrees to accept in place of the property, rights or interests of which he was deprived.

Through restitution in accordance with this Article, the price or the amount of compensation fixed by the application of paragraph (c) will be reduced by the actual value of the property restored, account being taken of compensation in respect of loss of use or deterioration.

(g) The rights conferred by paragraph (f) are reserved to owners who are nationals of Allied or Associated Powers within whose territory legislative measures prescribing the general liquidation of enemy property, rights or interests were not applied before the signature of the Armistice.

(h) Except in cases where, by application of paragraph (f), restitutions in specie have been made, the net proceeds of sales of enemy property, rights or interests wherever situated carried out either by virtue of war legislation, or by application of this Article, and in general all cash assets of enemies, other than proceeds of sales of property or cash assets in Allied or Associated countries belonging to persons covered by the last sentence of paragraph (b) above, shall be dealt with as follows:

(1) As regards Powers adopting Section III. and the Annex thereto, the said proceeds and cash assets shall be credited to the Power of which the owner is a national, through the Clearing Office established thereunder; any credit balance in favour of Austria resulting therefrom shall be dealt with as provided in Article 189, Part VIII. (Reparation), of the present Treaty.

(2) As regards Powers not adopting Section III. and the Annex thereto, the proceeds of the property, rights and interests, and the each assets, of the nationals of Allied or Associated Powers held by Austria shall be paid immediately to the person entitled thereto or to his Government; the proceeds of the property, rights and interests, and the cash assets of nationals of the former Austrian Empire, or companies controlled by them, as defined in paragraph (b), received by an Allied or Associated Power shall be subject to disposal by such Power in accordance with its laws and regulations and may be applied in payment of the claims and debts defined by this Article or paragraph 4 of the Annex hereto. Any such property, rights and interests or proceeds thereof or cash assets not used as above provided may be retained by the said Allied or Associated Power, and, if retained, the cash value thereof shall be dealt with as provided in Articles 189, Part VIII. (Reparation), of the present Treaty.

(i) Subject to the provisions of Article 267, in the case of liquidations affected in new States, which are signatories of the present Treaty as Allied and Associated powers, or in States which are not entitled to share in the reparation payments to be made by Austria, the proceeds of liquidations effected by such States shall, subject to the Rights of the Reparation Commission under the present Treaty, particularly under Article 181, Part VIII. (Reparation), and 211, Part IX (Financial Clauses), be paid direct to the owner. If, on the application of that owner, the Mixed Arbitral Tribunal provided for by Section VI of this Part, or an arbitrator appointed by that Tribunal, is satisfied that the conditions of the sale or measures taken by the Government of the State in question outside its general legislation were, unfairly prejudicial to the price obtained, they shall have discretion to award to the owner equitable compensation to be paid by that State.

(j) Austria undertakes to compensate her nationals in respect of the sale or retention of their property, rights or interests in Allied or Associated States.

(k) The amount of all taxes or imposts on capital levied or to be levied by Austria on the property, rights and interests of the nationals of the Allied or Associated Powers from November 3, 1918, until three months from the coming into force of the present Treaty, or in the case of property, rights or interests which have been subjected to exceptional measures of war, until restitution in accordance with the present Treaty, shall be restored to the owners.

Article 250.

Austria undertakes, with regard to the property, rights and interests, including companies and associations in which they were interested, restored to nationals of Allied and Associated Powers in accordance with the provisions of Article 240, paragraph (a) or (f):

(a) To restore and maintain, except as expressly provided in the present Treaty, the property, rights and interests of the nationals of Allied or Associated Powers in the legal position of obtaining in respect of the property, rights and interests of nationals of the former Austrian Empire under the laws in force before the war;

(b) not to subject the property, rights or interests of the nationals of the Allied or Associated Powers to any measures in derogation of property rights which are not applied equally to the property, rights and interests of Austrian nationals, and to pay adequate compensation in the event of the application of these measures.

annex.

1. In accordance with the provisions of Article 240, paragraph (d), the validity of vesting orders and of orders for winding up of business or companies, and of any other orders, directions, decisions or instructions of any court or any department of the Government of any of the High Contracting Parties made or given, or purporting to be made or given, in pursuance of war legislation with regard to enemy property, rights and interests is confirmed. The interests of all persons shall be regarded as having been effectively dealt with by any order, direction, decision or instruction dealing with property in which they may be interested, whether or not such interests are specially mentioned in the order, direction, decision or instruction. No question shall be raised as to the regularity of a transfer of any property, rights or interests dealt with in pursuance of any such order, direction, decision or instruction. Every action taken with regard to any property, business or company, whether as regards its investigation, sequestration, compulsory administration, use, requisition, supervision or winding-up, the sale or management of property, rights or interests, the collection or discharge of debts, the payment of costs, charges or expenses, or any other matter whatsoever, in pursuance of orders, directions, decision or instructions of any court or of any department of the Government of any of the High Contracting Parties, made or given, or purporting to be made or given, in pursuance of war legislation with regard to enemy property, rights or interests, is confirmed. Provided that the provisions of this paragraph shall not be held to prejudice the titles to property heretofore acquired in good faith and for value and in accordance with the laws of the country in which the property is situated by nationals of the Allied and Associated Powers.

The provisions of this paragraph do not apply to such of the above-mentioned measures as have been taken by the former Austro-Hungarian Government in invaded or occupied territory, nor to such of the above-mentioned measures as have been taken by Austria or the Austrian authorities since November 3, 1918, all of which measures shall be void.

2. No claim or action shall be made or brought against any Allied or Associated Power or against any person acting on behalf of or under the direction of any legal authority or department of the Government of such a Power by Austria or by any Austrian national or by or on behalf of any national of the former Austrian Empire wherever resident in respect of any act or omission with regard to his property, rights or interests during the war or in preparation for the war. Similarly no claim or action shall be made or brought against any person in respect of any act or omission under or in accordance with the exceptional war measures, law or regulations of any Allied or Associated Power.

3. In Article 240 and this Annex the expression “exceptional war measures” includes measures of all kinds, legislative, administrative, judicial or others, that have been taken or will be taken hereafter with regard to enemy property, and which have had or will have the effect of removing from the proprietors the power of disposition over their property, though without affecting the ownership, such as measures of supervision, of compulsory administration, and of sequestration; or measures which have had or will have as an object the seizure of, the use of, or the interference with enemy assets, for whatsoever motive, under whatsoever form or in whatsoever place. Acts in the execution of these measures include all detentions, instructions, orders or decrees of Government departments or courts applying these measures to enemy property, as well as acts performed by any person connected with the administration or the supervision of enemy property, such as the payment of debts, the collecting of credits, the payment of any costs, charges or expenses, or the collecting of fees.

Measures of transfer are those which have affected or will affect the ownership of enemy property by transferring it in whole or in part to a person other than the enemy owner, and without his consent, such as measures directing the sale, liquidation or devolution of ownership in enemy property, or the cancelling of titles or securities.

4. All property, rights and interests of nationals of the former Austrian Empire within the territory of any Allied or Associated Power and the net proceeds of their sale, liquidation or other dealing therewith may be charged by that Allied or Associated Power in the first place with payment of amounts due in respect of claims by the nationals of that Allied or Associated Power with regard to their property, rights and interests, including companies and associations in which they are interested, in territory of the former Austrian Empire, or debts owing to them by Austrian nationals, and with payment of claims growing out of acts committed by the former Austro-Hungarian Government or by any Austrian authorities since July 28, 1914, and before that Allied or Associated Power entered into the war. The amount of such claims may be assessed by an arbitrator appointed by M. Gustave Ader, if he is willing, or if no such appointment is made by him, by an arbitrator appointed by the Mixed Arbitral Tribunal provided for in Section VI. They may be charged in the second place with payment of the amounts due in respect of claims by the nationals of such Allied or Associated Power with regard to their property, rights and interests in the territory of other enemy Powers, in so far as those claims are otherwise unsatisfied.

5. Notwithstanding the provisions of Article 249, where immediately before the outbreak of war a company incorporated in an Allied or Associated State had rights in common with a company controlled by it and incorporated in Austria to the use of trade-marks in third countries, or enjoyed the use in common with such company of unique means of reproduction of goods or articles for sale in third countries, the former company shall alone have the right to use these trade-marks in third countries to the exclusion of the Austrian company, and these unique means of reproduction shall be handed over to the former company, notwithstanding any action taken under war legislation in force in the Austro-Hungarian Monarchy with regard to the latter company or its business, industrial property or shares. Nevertheless, the former company. If requested, shall deliver to the latter company derivative copies permitting the continuation of reproduction of articles for use within Austrian territory.

6. Up to the time when restitution is carried out in accordance with Article 240, Austria is responsible for the conservation of property, rights and interests of the nationals of Allied or Associated Powers, including companies and associations in which they are interested, that have been subjected by her to exceptional war measures.

7. Within one year from the coming into force of the present Treaty the Allied or Associated Powers will specify the property, rights and interests over which they intend to exercise the right provided in Article 249, paragraph (f).

8. The restitution provided in Article 249 will be carried out by order of the Austrian Government or of the authorities which have been substituted for it. Detailed accounts of the action of administrators shall be furnished to the interested persons by the Austrian authorities upon request, which may be made at any time after the coming into force of the present Treaty.

9. Until completion of the liquidation provided for by Article 249, paragraph (b), the property, rights and interests of the persons referred to in that paragraph will continue to be subject to exceptional war measures that have been or will be taken with regard to them.

10. Austria will, within six months from the coming into force of the present Treaty, deliver to each Allied or Associated Power all securities, certificates, deeds or other documents of title held by its nationals and relating to property, rights, or interests situated in the territory of that Allied or Associated Power, including any shares, stock, debentures, debenture stock or other obligations of any company incorporated in accordance with the laws of that Power.

Austria will at any time on demand of any Allied or Associated Power furnish such information as may be required, with regard to the property, rights and interests of Austrian nationals within the territory of such Allied or Associated Power, or with regard to any transactions concerning such property, rights or interests effected since July 1, 1914.

 

C. 21720.—2

 

11. The expression “cash assets” includes all deposits or funds established before or after the existence of a state of war, as well as all assets coming from deposits, revenues or profits collected by administrators, sequestrators or others from funds placed on deposit or otherwise, but does not include sums, belonging to the Allied or Associated Powers or to their component States, Provinces or Municipalities.

12. All investments wheresoever effected with the cash assets of nationals of the High Contracting Parties, including companies and associations in which such nationals were interested, by persons responsible for the administration of enemy properties or having control over such administration, or by order of such persons or of any authority whatsoever, shall be annulled. These cash assets shall be accounted for irrespective of any such investment.

13. Within one month from the coming into force of the present Treaty, or on demand at any time, Austria will deliver to the Allied and Associated Powers all accounts, vouchers, records, documents and information of any kind which may be within Austrian territory, and which concern the property, rights and interests of the nationals of those Powers, including companies and associations in which, they are interested, that have been subjected to an exceptional war measure, or to a measure of transfer either in the territory of the former Austrian Empire or in territory, occupied by that Empire or its allies.

The Controllers, supervisors, managers, administrators, sequestrators, liquidators and receivers shall be personally responsible under guarantee of the Austrian Government for the immediate delivery in full of these accounts and documents, and for their accuracy.

14. The provisions of Article 249 and this Annex relating to property, rights and interests in an enemy country, and the proceeds of the liquidation thereof, apply to debts, credits and accounts, Section III, regulating only the method of payment.

In the settlement of matters provided for in Article 249 between Austria and the Allied or Associated Powers, their colonies or protectorates, or any one of the British Dominions or India, in respect of any of which a declaration shall not have been made that they adopt Section III., and between their respective nationals, the provisions of Section III. respecting the currency in which payment is to be made and the rate, of exchange and of interest shall apply unless the Government of the Allied or Associated Power concerned shall within six months of the coming into force of the present Treaty notify Austria that one or more of the said provisions are not to be applied.

15. The provisions of Article 249 and this Annex apply to industrial, literary and artistic property which has been or will be dealt with in the liquidation of property, rights, interests, companies or businesses under war legislation by the Allied, or Associated Powers, or in accordance with the stipulations of Article 249, paragraph (b).

Section V.— Contracts, Prescriptions, Judgments.

Article 251.

(a) Any contract concluded between enemies shall be regarded as having been dissolved as from the time when any two of the parties became enemies, except in respect of any debt or other pecuniary obligation arising out of any act done or money paid thereunder, and subject to the exceptions and special rules, with regard to particular contracts or classes of contracts, contained herein or in the Annex hereto.

(b) Any contract of which the execution, shall be required in the general interest, within six months from the date of the coming into force of the present Treaty, by the Government of the Allied or Associated Power of which one of the parties is a national, shall be excepted from dissolution under this Article.

When the execution of the contract thus kept alive would, owing to the alteration of trade conditions, cause one of the parties substantial prejudice, the Mixed Arbitral Tribunal provided for by Section VI. shall be empowered to grant to the prejudiced party equitable compensation.

(c) Having regard to the provisions of the constitution and law of the United States of America, of Brazil, and of Japan, neither the present Article, nor Article 252, nor the Annex hereto shall apply to contracts and between nationals of those States and nationals of the former Austrian Empire; nor shall Article 257 apply to the United States of America or its nationals.

(d) The present Article and the Annex hereto shall not apply to contracts the parties to which became enemies by reason of one of them being an inhabitant of territory of which the sovereignty has been transferred, if such party, shall acquire under the present Treaty, the nationality of an Allied or Associated Power, nor shall they apply to contracts between nationals of the Allied and Associated Powers between whom trading has been prohibited by reason of one of the parties being in Allied or Associated territory in the occupation of the enemy.

(e) Nothing in the present Article or the Annex hereto shall be deemed to invalidate a transaction lawfully carried out in accordance with a contract between enemies if it has been carried out with the authority of one of the belligerent Powers.

Article 252.

(a) All periods of prescription, or limitation of right of action, whether they began to run before or after the outbreak of war shall be treated in the territory of the High Contracting Parties, so far as regards relations between enemies, as having been suspended for the duration of the war. They shall begin to run again at earliest three months after the coming into force of the present Treaty. This provision shall apply to the period, prescribed, for the presentation of interest or dividend coupons or for the presentation for repayment of securities drawn for repayment or repayable on any other ground.

(b) Where, on account of failure to perform any act or comply with any formality during the war, measures of execution have been taken in the territory of the former Austrian Empire to the prejudice of a national of an Allied or Associated Power, the claim of such national shall, if the matter does not fall within the competence of the Courts of an Allied or Associated Power, be heard by the Mixed Arbitral Tribunal provided for by Section VI.

(c) Upon the application of any interested person who is a national of an Allied or Associated Power, the Mixed Arbitral Tribunal shall order the restoration of the rights which have been prejudiced by the measures of execution referred to in paragraph wherever, having regard to the particular circumstances of the case, such restoration is equitable and possible.

If such, restoration is inequitable or impossible, the Mixed Arbitral Tribunal may grant compensation to the prejudiced party, to be paid by the Austrian Government.

(d) Where a contract between enemies has been dissolved by reason either of failure on the part of cither party to carry out its provisions or of the, exercise of a right stipulated in the contract itself, the party prejudiced may apply to the Mixed Arbitral Tribunal for relief. The Tribunal will have the powers provided for in paragraph (c).

(e) The provisions of the preceding, paragraphs of this Article shall apply to the nationals of Allied and Associated Powers who have been prejudiced by reason of measures referred to above taken by the authorities of the former Austrian Government in invaded or occupied territory, if they have not been otherwise compensated.

(f) Austria shall compensate any third party who may be prejudiced by any restitution or restoration ordered by the Mixed Arbitral Tribunal under the provisions of the preceding paragraphs of this Article.

(g) As regards negotiable instruments, the period of three months provided under paragraph (a) shall commence as from the date on which any exceptional regulations applied in the territories of the interested Power with regard to negotiable instruments shall have definitely ceased to have force.

 

Article 253.

As between enemies no negotiable instrument made before the war shall be deemed to have become invalid by reason only of failure within the required, time to present the instrument for acceptance or payment or to give notice of non-acceptance or non-payment to drawers or indorsers or to protest the instrument, nor by reason of failure to complete any formality during the war.

Where the period within which a negotiable instrument should have been presented for acceptance or for payment, or within which notice of non-acceptance or non-payment should have been given to the drawer or indorser, or within which the instrument should have been protested, has elapsed during the war, and the party who should have presented or protested the instrument or have given notice of non-acceptance or non-payment has failed to do so during the war, a period of not less than three months from the coming into force of the present Treaty shall be allowed within which presentation, notice of non-acceptance or non-payment or protest may be made.

Article 254.

Judgments given by the Courts of an Allied or Associated Power in all cases which, under the present Treaty, they are competent to decide, shall be recognised in Austria as final, and shall be enforced without it being necessary to have them declared executory.

If a judgment or measure of execution in respect of any dispute which may have arisen has been given during the war by a judicial authority of the former Austrian Empire against a national of an Allied or Associated Power, or a company or association in which one of such nationals was interested, in a case in which either such national or such company or association was not able to make their defence, the Allied and Associated national who has suffered prejudice thereby shall be entitled to recover compensation to be fixed by the Mixed Arbitral Tribunal provided for in Section VI.

At the instance of the national of the Allied or Associated Power the compensation above mentioned may, upon order to that effect of the Mixed Arbitral Tribunal, be effected where it is possible by replacing the parties in the situation which they occupied before the judgment was given by the Austrian Court.

The above compensation may likewise be obtained before the Mixed Arbitral Tribunal by the nationals of Allied or Associated Powers who have suffered prejudice by judicial measures taken in invaded or occupied territories, if they have not been otherwise compensated.

Article 255.

For the purpose of Sections. III, IV, V, and VII, the expression “during the war” means for each Allied or Associated Power the period between the commencement of the state of war between that Power and the former Austro-Hungarian Monarchy and the coming into force of the present Treaty.

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I.—General Provisions.

1. Within the meaning of Articles 251, 252 and 253, the parties to a contract shall be regarded as enemies when trading between them shall have been prohibited by or otherwise became unlawful under laws, orders, or regulations to which one of those parties was subject. They shall be deemed to have become enemies from the date when such trading was prohibited or otherwise became unlawful.

2. The following classes of contracts are excepted from dissolution by Article. 251, and, without prejudice to the rights contained in Article 240 (b) of Section IV., remain in force subject to the application of domestic laws, orders, or regulations made during the war by the Allied and Associated Powers and subject to the terms of the contracts:

(a) Contracts having for their object the transfer of estates or of real or personal property where the property therein had passed or the object had been delivered before the parties became enemies;

(b) Leases and agreements for leases of land and houses;

(c) Contracts of mortgage, pledge; or lien;

(d) Concessions concerning mines, quarries or deposits;

(e) Contracts between individuals or companies and States, provinces, municipalities or other similar juridical persons charged, with administrative functions, and concessions granted by States, provinces, municipalities or other similar juridical persons charged with administrative functions.

3. If the provisions of a contract are in part, dissolved under Article 251, the remaining provisions of that contract shall, subject to the same application of domestic laws as is provided for in paragraph 2,continue in force if they are severable, but where they are not severable the contract shall be deemed to have been dissolved in its entirety.

II.—Provisions relating to certain classes of Contracts.

Stock Exchange and Commercial Exchange Contracts.

4. (a) Rules made during the war by any recognised Exchange or Commercial Association providing for the closure of contracts entered into before the war by an enemy are confirmed by the High Contracting Parties, as also any action, taken thereunder, provided:

(1) that the contract was expressed to be made subject to the rules of the Exchange or Association in question;

(2) that the rules applied to all persons concerned;

(3) that the conditions attaching to the closure were fair and reasonable.

(b) The preceding paragraph shall not apply to rules made during the occupation by Exchanges or Commercial Associations in the districts occupied by the enemy.

(c) The closure of contracts relating to cotton “futures,” which were closed as on July 31, 1914, under the decision of the Liverpool Cotton Association, is also confirmed.

Security.

5.The sale of a security held for an unpaid debt owing by an enemy shall be deemed to have been valid irrespective of notice to the owner if the creditor acted in good faith and with reasonable care and prudence, and no claim by the debtor on the ground of such sale shall be admitted.

This stipulation shall not apply to any sale of securities effected by an enemy during the occupation in regions invaded or occupied by the enemy.

Negotiable Instruments.

6. As regards Powers which adopt Section III, and the Annex thereto the pecuniary obligations existing between enemies, and resulting from the issue of negotiable instruments shall be adjusted in conformity with the said Annex by the instrumentality of the Clearing Offices, which shall assume the rights of the holder as regards the various remedies open to him.

7. If a person has either before or during the war become liable upon a negotiable instrument in accordance with an undertaking given to him by a person who has subsequently become an enemy, the latter shall remain liable to indemnify the former in respect of his liability notwithstanding the outbreak of war.

III. —Contracts of Insurance.

8. Contracts of insurance entered into by any person with another person who subsequently became an enemy will be dealt with in accordance with the following-paragraphs.

Fire Insurance.

9. Contracts for the insurance of property against fire entered into by a person interested in such property with another person who subsequently became, an enemy shall not be deemed to have been dissolved by the outbreak of war, or by the fact of the person becoming an enemy, or on account of the failure during the war and for a period of three months thereafter to perform his obligations under the contract but they shall be dissolved at the date when the annual premium becomes payable for the first time after this expiration of a period of three months after the coming into force of the present Treaty.

A settlement shall be effected of unpaid premiums which became due during the war or of claims for losses which occurred during the war.

10. Where by administrative or legislative motion an insurance against fire effected before the war has been transferred during the war from the original to another insurer, the transfer will be recognised and the liability of the original insurer will be deemed to have ceased as from the date of the transfer. The original insurer will, however, be entitled to receive on demand full information as to the terms of the transfer, and if it should appear that these terms were not equitable they shall be amended so far as may be necessary to render them equitable.

Furthermore, the insured shall, subject to the concurrence of the original insurer, be entitled to retransfer the contract to the original insurer as from the date of the demand.

Life Insurance.

11. Contracts of life insurance entered into between an insurer and a person who subsequently became an enemy shall not be deemed to have been dissolved by the outbreak of war, or by the fact of the person becoming an enemy.

Any sum which during the war became due upon a contract deemed not to have been dissolved under the preceding provision shall be recoverable, after the war with the addition of interest at 5 per cent. per annum from the date of its becoming due up to the day of payment.

Where the contract has lapsed during the war owing to non-payment of premiums, or has become void from breach of the conditions of the contract, the assured or his representatives or the persons entitled shall have the right at any time within twelve months of the coming into force of the present Treaty to claim from the insurer the surrender value of the policy at the date of its lapse or avoidance.

Where the contract has lapsed during the war owing to non-payment of premiums, the payment of which has been prevented by the enforcement of measures of war, the assured or his representative or the persons entitled shall have the right to restore the contract on payment of the premiums with interest at 5 per cent. per annum within three months from the coming into force of the present Treaty.

12. Where contracts of life insurance, have been entered into by a local branch of an insurance company established in a country which subsequently became an enemy country, the contract shall, in the absence of any stipulation to the contrary in the contract itself, be governed by the local law, but the insurer shall be entitled to demand from the insured or his representatives the refund of sums paid on claims made or enforced under measures taken during the war, if the making or enforcement of such claims was not in accordance with the terms of the contract itself or was not consistent with the laws or treaties existing at the time when it was entered into.

13. In any case where by the law applicable to the contract the insurer remains bound by the contract notwithstanding the non-payment of premiums until notice is given to the insured of the termination of the contract he shall be entitled, where the giving of such notice was prevented by the war, to recover the unpaid premiums with interest at 5 per cent. per annum from the insured.

14. Insurance contracts shall be considered as contracts of life assurance for the purpose of paragraphs 11 to 13 when they depend on the probabilities of human life combined with the rate of interest for the calculation of the reciprocal engagements between the two parties.

Marine Insurance.

15. Contracts of marine insurance, including time policies and voyage policies entered into between an insurer and a person who subsequently became an enemy, shall be deemed to have been dissolved on his becoming an enemy except in cases where the risk undertaken in the contract had attached before he became an enemy.

Where the risk had not attached, money paid by way of premium or otherwise, shall be recoverable from the insurer.

Where the risk had attached effect shall be given to the contract notwithstanding the party becoming an enemy, and sums due under the contract either by way of premiums or in respect of losses shall be recoverable after the coming into force of the present Treaty.

In the event of any agreement being come to for the payment of interest on sums due before the war to or by the nationals of States which have been at war and recovered after the war, such interest shall in the case of losses recoverable under contracts of marine insurance run from the expiration of a period of one year from the date of the loss.

16. No contract of marine insurance with an insured person who subsequently became an enemy shall be deemed to cover losses due to belligerent action by the Power of which the insurer was a national or by the allies or associates of such Power.

17. Where it is shown that a person who had before the war entered into a contract of marine insurance with an insurer who subsequently became an enemy entered after the outbreak of war into a new contract covering the same risk with an insurer who was not an enemy, the new contract shall be deemed to be substituted for the original contract as from the date when it was entered into, and the premiums payable shall be adjusted on the basis of the original insurer having remained liable on the contract only up till the time when the new contract was entered into.

Other Insurances.

18. Contracts of insurance entered into before the war between an insurer and a person who subsequently became an enemy, other than contracts dealt with in paragraphs 9 to 17, shall be treated in all respects on the same footing as contracts of fire insurance between the same persons would be dealt with under the said paragraphs.

Reinsurance.

19. All treaties of reinsurance with a person who became an enemy shall be regarded as having been abrogated by the person becoming an enemy, but without prejudice, in the case of life or marine risks which had attached before the war to the right to recover payment after the war for sums due in respect of such risks.

Nevertheless if, owing to invasion, it has been impossible for the reinsured to find another reinsurer, the treaty shall remain in force until three months after the coming into force of the present Treaty.

Where a reinsurance treaty becomes void under this paragraph, there shall be an adjustment of accounts between the parties in respect both of premiums paid and payable and of liabilities for losses in respect of life or marine risks which had attached before the war. In the case of risks other than those mentioned in paragraphs 11 to 17 the adjustment of accounts shall be made as at the date of the parties becoming enemies, without regard to claims for losses which may have occurred since that date.

20. The provisions of the preceding paragraph will extend equally to reinsurances, existing at the date of the parties becoming enemies, of particular risks undertaken by the insurer in a contract of insurance against any risks other than life or marine risks.

21. Reinsurance of life risks effected by particular contracts and not under any general treaty remain in force.

In case of a reinsurance effected before the war of a contract of marine insurance, the cession of a risk which had been ceded to the reinsurer shall, if it had attached before the outbreak of war, remain valid and effect be given to the contract notwithstanding the outbreak of war; sums due under the contract of reinsurance in respect either of premiums or of losses shall be recoverable after the war.

23. The provisions of paragraphs 16 and 17 and the last part of paragraph 15 shall apply to contracts for the reinsurance of marine risks.

Section VI.—Mixed Arbitral Tribunal.

Article 256.

(a) Within three months from the coming into force of the present Treaty, a Mixed Arbitral Tribunal shall be established between each of the Allied and Associated Powers on the one hand and Austria on the other hand. Each such tribunal shall consist of three members. Each of the Governments concerned shall appoint one of these members. The president shall be chosen by agreement between the two Governments concerned.

In case of failure to reach agreement, the President of the Tribunal and two other persons, either of whom may in case of need take his place, shall be chosen by the Council of the League of Nations, or, until this is set up, by M. Gustave Ador if he is willing. These persons shall be nationals of Powers that have remained neutral during the war.

If in case there is a vacancy a Government does not proceed within a period of one month to appoint as provided above a member of the Tribunal, such member shall be chosen by the other Government from the two persons mentioned above other than the President.

The decision of the majority of the members of the Tribunal shall be the decision of the Tribunal.

(b) The Mixed Arbitral Tribunals established pursuant to paragraph (a) shall decide all questions within their competence under sections III., IV., V. and VII.

In addition, all questions, whatsoever their nature, relating to contracts concluded before the coming into force of the present Treaty between nationals of the Allied and Associated Powers and Austrian nationals shall be decided by the Mixed Arbitral Tribunal, always excepting questions which, under the laws of the Allied Associated or Neutral Powers, are within the jurisdiction of the National Courts of those Powers. Such questions shall be decided by the National Courts in question, to the exclusion of the Mixed Arbitral Tribunal. The party who is a national of an Allied or Associated Power may nevertheless bring the case before the Mixed Arbitral Tribunal if this is not prohibited by the laws of his country.

(c) If the number of cases justifies it, additional members shall be appointed, and each Mixed Arbitral Tribunal shall sit in divisions. Each of these divisions will be constituted as above.

(d) Each Mixed Arbitral Tribunal will settle its own procedure except in so far as it is provided in the following Annex, and is empowered to award the sums to be paid by the loser in respect of the costs and expenses of the proceedings.

(e) Each Government will pay the remuneration of the member of the Mixed Arbitral Tribunal appointed by it and of any agent whom it may appoint to represent it before the Tribunal. The remuneration of the President will be determined by special agreement between the Governments concerned; and this remuneration and the joint expenses of each Tribunal will be paid by the two Governments in equal moieties.

(f) The High Contracting Parties agree that their courts and authorities shall render to the Mixed Arbitral Tribunals direct all the assistance in their power, particularly as regards transmitting notices and collecting evidence.

(g) The High Contracting Parties agree to regard the decisions of the Mixed Arbitral Tribunal as final and conclusive, and to render them binding upon their nationals.

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1. Should one of the members, of the Tribunal either die, retire or be unable for any reason whatever to discharge his functions, the same procedure will be followed for filling the vacancy as was followed for appointing him.

2. The Tribunal may adopt such rules of procedure as shall be in accordance with justice and equity and decide the order and time at which each party must conclude its arguments, and may arrange all formalities required for dealing with the evidence.

3. The agent and counsel of the parties on each side are authorized to present orally and in writing to the Tribunal arguments in support or in defence of each case.

4. The Tribunal shall keep record of the questions and cases submitted and the proceedings thereon, with the dates of such proceedings.

5. Each of the Powers concerned may appoint a secretary. These secretaries shall act together as joint secretaries of the Tribunal and shall be subject to its direction. The Tribunal may appoint and employ any other necessary officer or officers to assist in the performance of its duties.

6. The Tribunal shall decide all questions and matters submitted upon such evidence and information as may be furnished by the parties concerned.

7. The High Contracting parties agree to give the Tribunal all facilities and information required by it for carrying out its investigations.

8. The language in which the proceedings shall be conducted shall unless otherwise agreed be English, French, Italian or Japanese, as may be determined the Allied or Associated Power concerned.

9. The place and time for the meetings, of each Tribunal shall be determined by the President of the Tribunal.

Article 257.

Whenever a competent court has given or gives a decision in a case covered by Sections III., IV., V. or VII., and such decision is inconsistent with the provisions of such Sections, the party who is prejudiced by the decision shall be entitled to obtain redress which shall be fixed by the Mixed Arbitral Tribunal. At the request of the national of an Allied or Associated Power, the redress may, whenever possible, be effected by the Mixed Arbitral Tribunal directing the replacement of the parties in the position occupied by them before the judgment was given by the court of the former Austrian Empire.

Section VII.—Industrial Property.

Article 258.

Subject to the stipulations of the present Treaty, rights of industrial, literary and artistic property, as such property is defined by the International, Conventions of Paris and of Berne, mentioned in Articles 237 and 239, shall be reestablished or restored, as from the coming into force of the present Treaty, in the territories of the High Contracting Parties, in favour of the persons entitled to the benefit of them at the moment when the state of war commenced, or their legal representatives. Equally, rights which, except for the war, would have been acquired during the war in consequence of an application made for the protection of industrial property, or the publication of a literary or artistic work, shall be recognised and established in favour of those persons who would have been entitled thereto, from, the coming into force of the present Treaty.

Nevertheless, all acts done, by virtue of the special measures taken during the war under legislative, executive or administrative authority of any Allied or Associated Power in regard to the rights of nationals of the former Austrian Empire in industrial, literary or artistic property shall remain in force and shall continue to maintain their full effect.

No claim shall be made or action brought by Austria or Austrian nationals, or by or on behalf of nationals of the former Austrian Empire in respect of the use during the war by the Government of any Allied, or Associated Power, or by, any persons acting on behalf or with the assent of such Government of any rights in industrial, literary or artistic property, nor in respect of the sale offering for sale or use of any products, articles or apparatus, whatsoever to which such rights applied.

Unless the legislation of any one of the Allied or Associated Powers in force at the moment of the signature of the, present Treaty otherwise directs, sums due or paid in respect of the property of persons referred to in Article 249 (b) and in virtue of any act or operation, resulting from the execution of the special measures mentioned in the second paragraph of this Article shall be dealt with in the same way as other sums due to such persons are directed to be dealt with by the present Treaty; and sums produced by any special measures taken by the Government of the former Austrian Empire in respect of rights, in industrial, literary or artistic property belonging to the nationals of the Allied, or Associated powers shall be considered and treated in the same, way as other debts due from Austrian nationals.

Each of the Allied and Associated Powers reserves to itself the right to impose, such limitations, conditions or restrictions on rights of industrial, literary or artistic property (with the exception of trade-marks) acquired before or during the war, or which may be subsequently acquired in accordance with its legislation, by Austrian nationals, whether by granting licences, or by the working, or by preserving control over their exploitation; of in any other way, as may be considered, necessary for national defence, or in the public interest, or for assuring the fair treatment by Austria of the rights of industrial, literary, and artistic property held in Austrian territory by its nationals, or for securing the due fulfilment of all obligations undertaken by Austria in the present Treaty. As regards rights of industrial, literary and artistic property acquired after, the coming into force of the present Treaty the right so reserved by the Allied and Associated Powers shall only be exercised in cases where these limitations, conditions or restrictions may be considered necessary for national defence or in the public interest.

In the event of the application of the provisions of the preceding paragraph by any Allied or Associated Power, there shall be paid reasonable indemnities or royalties, which shall be dealt with in the same way as other sums due to Austrian nationals are directed to be dealt with by the present Treaty.

Each of the Allied or Associated Powers reserves the right to treat as void and of no effect any transfer in whole or in part of or other dealing with rights of or in respect of industrial, literary or artistic property effected after July 28, 1914, or in the future, which would have the result of defeating the objects of the provisions of this Article.

The provisions of this Article shall not apply to rights, in industrial, literary or artistic property which have been dealt with in the liquidation of businesses or companies under war legislation by the Allied or Associated Powers, or which may be so dealt with by virtue of Article 249, paragraph (b).

Article 259.

A minimum of one year after the coming into force of the present Treaty shall be accorded to the nationals of the High Contracting Parties, without extension fees or other penalty, in order to enable such persons to accomplish any act, fulfil any formality, pay any fees, and generally satisfy any obligation prescribed by the laws or regulations of the respective States relating to the obtaining, preserving or opposing rights, to, or in respect of, industrial property either acquired before July 28, 1914, or which, except for the war, might have been acquired since that date as a result of an application made before the war or during its continuance, but nothing in this Article shall give any right to reopen interference proceedings in the United States of America where a final hearing has taken place.

All rights in or in respect of, such property which may have lapsed by reason of any failure to accomplish any act, fulfil any formality, or make any payment, shall revive, but subject in the case, of patents and designs to the imposition of such conditions as each Allied or Associated Power may deem reasonably necessary for the protection of persons who have manufactured or made use of the subject-matter of such property while the rights had lapsed. Further, where rights, to patents or designs belonging to Austrian nationals are revived under this Article, they shall be subject in respect of the grant of licences to the same provisions as would have been applicable to them during the war; as well as to all the provisions of the present Treaty.

The period from July 28, 1914, until the coining into force of the present Treaty, shall be excluded in considering the time within which a patent should be worked or a trade mark or design used, and it is further agreed that no patent, registered trade mark or design in force on July 28, 1914, shall be subject to revocation or cancellation by reason only of the failure to work such patent or use such trade mark or design for two years after the coming into force of the present Treaty.

Article 200.

The rights of priority provided by Article 4 of the International Convention for the Protection of Industrial Property of Paris of March 20, 1883 revised at Washington in 1911, or by any other Convention or Statute, for the filing, or registration of applications for patents or models of utility, and for the registration of trade marks, designs and models which had not expired on July 28, 1914, and those which, have arisen during the war, or would have, arisen hire for the war, shall be extended by each of the High Contracting Parties in favour of all nationals of the other High Contracting Parties for a period of six months after the coming into force of the present Treaty.

Nevertheless, such extension, shall in no way affect the right of any of the High Contracting Parties or of any person, who before the coming into force of the present Treaty was bonâfide in possession of any rights of industrial property conflicting with rights applied for by another who claims rights of priority in respect of them, to exercise such rights by itself or himself personally, or by such agents or licensees as derived their rights from it or him before the coming into force of the present Treaty; and such persons, shall not be amenable to any action or other process of law in respect of infringement.

 

Article 261.

No action shall be brought and no claim made by nationals of the former Austrian Empire, or by persons residing or carrying on business within the territory of that Empire, on the one part, and on the other part by persons residing, or carrying on business in the territory of the Allied or Associated Powers, or persons who are nationals of such Powers respectively, or by any one deriving title during the war from such persons, by reason of any action which has taken place within the territory of the other party between the date of the existence of a state of war and that of the coming into force of the present Treaty, which might constitute an infringement of the rights of industrial property or rights of literary and artistic property, either existing at any time during the war or revived, under the provisions of Articles 259 and 260.

Equally, no action for infringement of industrial, literary or artistic property rights by such persons shall at any time be permissible in respect of the sale or offering for sale for a period of one year after the signature of the present Treaty in the territories of the Allied or Associated Powers on the one hand or Austria on the other, of products or articles manufactured, or of literary or artistic works published, during the period between the existence of a state of war and the signature of the present Treaty, or against those who have acquired, and continue to use them. It is understood, nevertheless, that this revision shall not apply when the possessor of the rights was domiciled or had an industrial or commercial establishment in the districts occupied by the Austro-Hungarian armies during the war.

This Article shall not apply as between the United States of America on the one hand and Austria on the other.

Article 262.

Licences in respect of industrial, literary or artistic property concluded before the war between nationals of the Allied or Associated Powers or persons residing in their territory or carrying on business therein, on the one part, and nationals of the former Austrian Empire, on the other part, shall be considered as cancelled as from the date of the existence of a state of war between the former Austro-Hungarian Monarchy and the Allied or Associated Power. But, in any case, the former beneficiary of a contract of this kind shall have the right, within a period of six months after the coming into force of the present Treaty, to demand from the proprietor of the rights the grant of a new licence, the conditions of which, in default of agreement between the parties, shall be fixed by the duly qualified tribunal in the country under whose legislation the rights had been acquired, except in the case of licences held in respect of rights acquired under the law of the former Austrian Empire. In such cases the conditions shall be fixed by the Mixed Arbitral Tribunal referred to in Section VI. of this Part. The tribunal may, if necessary, fix also the amount which it may deem just should be paid by reason of the use of the rights during the war.

No licence in respect of industrial, literary or artistic property, granted under the special war legislation of any Allied or Associated Power, shall be affected by the continued existence of any licence entered into before the war, but shall remain valid and of full effect, and a licence so granted to the former beneficiary of a licence entered into before the war shall be considered as substituted for such licence.

Where sums have been paid during the war in respect of the rights of persons referred to in Article 249 (b) by virtue of a licence or agreement concluded before the war, in respect of rights of industrial property or for the reproduction of the representation of literary, dramatic or artistic works; these sums shall be dealt with in the same manner as other debts or credits of such persons as provided by the present Treaty.

This Article, shall not apply as between the United States of America, on the one hand and Austria on the other.

 

Printed and Published for the Government of the Commonwealth of Australia by Albert J. Mullett,