STATUTORY INSTRUMENTS

S.I. No 454 of 2006

Asian Development Bank (Designation and Immunities) Order 2006

WHEREAS it is enacted by section 40(1) (as amended by the Diplomatic Relations and Immunities (Amendment) Act 2006 (No. 10 of 2006)) of the Diplomatic Relations and Immunities Act 1967 (No. 8 of 1967) that the Government may by order designate an international organisation, community or body of which the State or the Government is or intends to become a member to be an organisation to which Part VIII of that Act applies:

AND WHEREAS it is further enacted by section 42A (as amended by the Diplomatic Relations and Immunities (Amendment) Act 2006 (No. 10 of 2006)) of the Diplomatic Relations and Immunities Act 1967 that the Government may by order make provision to enable-

(a)        international organisations, communities or bodies, their institutions or organs and their property, and

(b)        persons,

to have and enjoy in the State any inviolability, exemptions, facilities, immunities, privileges or rights provided for in relation to them by an international agreement to which the State or the Government is or intends to become a party:

AND WHEREAS the Asian Development Bank and the Articles of Agreement made on 4 December 1965 establishing the Asian Development Bank are, respectively, an organisation and an agreement as aforesaid:

NOW, the Government, in exercise of the powers conferred on them by sections 40 and 42A of the Diplomatic Relations and Immunities Act 1967 , hereby order as follows:

1.        This Order may be cited as the Asian Development Bank (Designation and Immunities) Order 2006.

2.        The Asian Development Bank is designated as an organisation to which Part VIII of the Diplomatic Relations and Immunities Act 1967 (No. 8 of 1967) applies.

3.        Chapter VIII of the Articles of Agreement made on 4 December 1965 establishing the Asian Development Bank, the text of which Chapter is for convenience of reference set out in the Schedule, shall apply for the purposes of section 42A of the Diplomatic Relations and Immunities Act 1967 .

SCHEDULE

Chapter VIII

STATUS, IMMUNITIES, EXEMPTIONS AND PRIVILEGES

Article 48

PURPOSE OF CHAPTER

To enable the Bank effectively to fulfil its purpose and carry out the functions entrusted to it, the status, immunities, exemptions and privileges set forth in this Chapter shall be accorded to the Bank in the territory of each member.

Article 49

LEGAL STATUS

The Bank shall possess full juridical personality and, in particular, full capacity:

(i)         to contract;

(ii)        to acquire, and dispose of, immovable and movable property; and

(iii)        to institute legal proceedings.

Article 50

IMMUNITY FROM JUDICIAL PROCEEDINGS

1.        The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a court of competent jurisdiction in the territory of a country in which the Bank has its principal or a branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.

2.        Notwithstanding the provisions of paragraph 1 of this Article, no action shall be brought against the Bank by any member, or by any agency or instrumentality of a member, or by any entity or person directly or indirectly acting for or deriving claims from a member or from any agency or instrumentality of a member. Members shall have recourse to such special procedures for the settlement of controversies between the Bank and its members as may be prescribed in this Agreement, in the by-laws and regulations of the Bank, or in contracts entered into with the Bank.

3.        Property and assets of the Bank, shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank.

Article 51

IMMUNITY OF ASSETS

Property and assets of the Bank, wheresoever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation or any other form of taking or foreclosure by executive or legislative action.

Article 52

IMMUNITY OF ARCHIVES

The archives of the Bank, and, in general, all documents belonging to it, or held by it, shall be inviolable, wherever located.

Article 53

FREEDOM OF ASSETS FROM RESTRICTIONS

To the extent necessary to carry out the purpose and functions of the Bank effectively, and subject to the provisions of this Agreement, all property and assets of the Bank shall be free from restrictions, regulations, controls and moratoria of any nature.

Article 54

PRIVILEGE FOR COMMUNICATIONS

Official communications of the Bank shall be accorded by each member treatment not less favourable than that it accords to the official communications of any other member.

Article 55

IMMUNITIES AND PRIVILEGES OF BANK PERSONNEL

All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank:

(i)       shall be immune from legal process with respect to acts performed by them in their official capacity, except when the Bank waives the immunity;

(ii)       where they are not local citizens or nationals, shall be accorded the same immunities from immigration restrictions, alien registration requirements and national service obligations, and the same facilities as regards exchange regulations, as are accorded by members to the representatives, officials and employees of comparable rank of other members; and

(iii)      shall be granted the same treatment in respect of travelling facilities as is accorded by members to representatives, officials and employees of comparable rank of other members.

Article 56

EXEMPTION FROM TAXATION

1.        The Bank, its assets, property, income and its operations and transactions, shall be exempt from all taxation and from all customs duties. The Bank shall also be exempt from any obligation for the payment, withholding or collection of any tax or duty.

2.        No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to Directors, alternates, officers or employees of the Bank, including experts performing missions for the Bank, except where a member deposits with its instrument of ratification or acceptance a declaration that such member retains for itself and its political subdivisions the right to tax salaries and emoluments paid by the Bank to citizens or nationals of such member.

3.        No tax of any kind shall be levied on any obligation or security issued by the Bank, including any dividend or interest thereon, by whomsoever held:

(i)       which discriminates against such obligation or security solely because it is issued by the Bank; or

(ii)      if the sole jurisdictional basis for such taxation is the place or currency in which it is issued, made payable or paid, or the location of any office or place of business maintained by the Bank.

4.        No tax of any kind shall be levied on any obligation or security guaranteed by the Bank, including any dividend or interest thereon, by whomsoever held:

(i)       which discriminates against such obligation or security solely because it is guaranteed by the Bank; or

(ii)      if the sole jurisdictional basis for such taxation is the location of any office or place of business maintained by the Bank.

Article 57

IMPLEMENTATION

Each member, in accordance with its juridical system, shall promptly take such action as is necessary to make effective in its own territory the provisions set forth in the Chapter and shall inform the Bank of the action which it has taken on the matter.

Article 58

WAIVER OF IMMUNITIES, EXEMPTIONS AND PRIVILEGES

The Bank at its discretion may waive any of the privileges, immunities and exemptions conferred under this Chapter in any case or instance, in such manner and upon such conditions as it may determine to be appropriate in the best interests of the Bank.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The effect of this order is to enable Chapter VIII of the Agreement Establishing the Asian Development Bank to be implemented pursuant to the Diplomatic Relations and Immunities Acts 1967-2006.