Notification of implementation (Article 59)
Each member shall promptly inform the Bank of the specific action which it has taken to make effective in its territory the provisions of this chapter.
Under the general rules of in.ternational law each member upon ratification must, where it is required, take action in accordance with its constitution and its administrative and legal system in order to make all provisions of this Agreement effective ,in its own territory. It seems therefore unnecessary to enjoin members to do so specifically as regards the provisions of Chapter VII. On the other hand, in v,iew of their practical implications for the activities of the Bank. it is advisable that the Bank should be speedly informed by members of action taken in the field covered by the chapter (see \BRD, Art. VII (0), and IADB Art. XI (10)).
Upper Volta: The Article should provide far a maximum period with';n which information or action taken should be given.
ARTICLE 58
NOTIFICATION OF IMPLEMENTATION
Each member shall promptly inform the Bank of the specific action which It has taken to make effective in its territory the provisions of this Chapter.
Draft {Jrepared by the Committee of Nine
Explanatory notes submitted by the Committee of Nine
A mendJrlents proposed by Governments
Final text adopted by the Conference
APPLICATION OF IMMUNITIES. EXEMPTIONS AND PRIVILEGES Application of immnnities, exemptions and privileges (Article 60) The immunities. ,exemptions and pt!"ivileges provided in thi,s chapter are granted
In the interests of the Bank. The Board of Directors may waive, to such extent and upon such conditions as it may determine. the immunities and exemptions provided in Articles 53, 55, 57 a'nd 58 of this A~rcemcnt,in cases whme its action would, in its opulion, funher the interests of the Bank. The Pr,esident shall have the right (lnd the duty to waive the immunity of any official in cases wherr~,-in his opinion, the immunity would impede the course of jus,tice and can be waived without prejudice to the interests of the Bank.
This Article is designed to st'r-ess the need of the immunities, exemptions and privileges provided in th,is chapter for the proper conduct of the activiti'es of the Eank and to emphasize the exceptional and restricted character of any waiver that may be granted by the Board of Di'reetors and the President. respectively. in particular cases (see IFC, Art. VI (11).
Upper Volta: Since not all members are represented on the Board of Directors, .the importance of decisions concerndng immunities, exemptions and privileges would seem to require that they should be reserved for the Board of Governors.
ARTICLE 59
APPLICATION OF IMMUNITIES, EXEMPTIONS AND PRIVILEGES The immuni,ties, exemptions and privileges provided in this Chapter are granted in the interests of the Bank. The Board of Directors may waive, to such extent and upon .such conditions as it may determine, the immunities and exemptions provided in Articles 52, 54, 56. and 57 of this Agreement in cases where its action would in its opinion, further the interests of the Bank. The President shall have the duty to waive the immunity of any official in case'i where, in hi.s opinicn. the im-munity would impede the course of justice and can be waived without prejudice 1D the inlerests of the Bank.
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192-Draft prepared by rhe Committee of Nine
Explanatory notes submitted by the Committee of Nine
CHAPTER VIII
Amendments, Interpretation, Arbitration AMENDMENTS
Amendments (Article 61)
(I) Any proposal to introduce modifications to this Agreement, whether emanat-ing from a member, a governor or the Board of Directors, shall be communicated to the Chairman of the Board of Governors, who shall bring the proposal before that Board. If the proposed amendment is approved by the Board, the Bank shall, by circular letter or telegram, ask the members whether they accept the proposed amendment. When two-thirds of the members, having three-quarters of the total voting power of the members have accepted the proposed amendment, the Bank shall certify the fact by formal communication addressed to the members.
(2) Notwithstanding paragraph (I) of this Article, acceptance by all the members is required for any amendment modifying:
(i) The right secured by paragraph (2) of Article 6 of this Agreement;
(ii) The limitation on liability provided in paragraph (5) of that Article;
and
(iii) The right to withdraw from the Bank provided in Article 44 of this Agreement.
(3) Amendments shall enter into force for all members three months after the date of the formal communication provided for in paragraph (I) of this Article unless the Board of Governors specifies a different period.
I. Amendments to an international agreement require, by virtue of a general principle of the law of treaties, the signature and ratification or acceptance of the amending instrument by each party. Exceptions to this principle have been agreed by the parties to a small number of multilateral agreements, including, however,
the lBRD, IFC, IDA and IADB.
2, Thus, under the IBRD, Art. Vlll, and IDA, Art. IX - subject to certain exceptions - amendments to these instruments may enter into force if - after their preliminary approval by a simple majority of the Board of Governors -they are accepted by three-fifths of the members representing four-fifths of the total voting power.
3. Under the IFC, Art. VII, and IADB, Art. XII, this procedure is simplified:
subject to exceptions, amendments may be adopted by - in the case of the IFC threefifths of the Governors exercising fourfifths of the total voting power, and -in the IADB - two-thirds of the Governors representing not less than three-fourtb' of that power.
4. For the text of paragraph (I) of this Article, the method and language used by the IBRD and IDA (described in note 2) have been chosen as being more in keeping with tbe inter-governmental character of the Bank: not all governors may be expected to come from government departments. It may therefore be more appropriate that after preliminary approval by the Board of Governors, formal acceptance of the amendment should be sought by the Bank from the member Governments as such. The Board of Directors will, as usual, prepare the work of the Governors (see Art. 32 (2) (b)).
5. Sub-paragraphs (i), (ii) and (iii) of paragraph (2) set out, in the order of the Agreement, the same exceptions to the principle of qualified majorities as are pro-vided in the lBRD, IFC, IDA and lADE. In the case of these exceptions, amend-ments require acceptance by all the members. The exceptions refer to modifications of the right of a member to obtain an appropriate fraction of shares in the case of a general increase in the capital of the Bank; of the rule limiting the liability on shares to the unpaid portion of the issue price; and of the right of withdrawal.
6. The text of paragraph (3) of Art. 61 follows the wording of the last sentence of IADB, Art. XII (c). Thus, as distinct from the lBRD or IDA, it is clear that, first, the Board of Governors alone may prescribe a period other than that of three
Amendments proposed hy Governments Final text adopted by the Con!erenee
months for the entry into [DIel: of an amendment and, secondly, that such period may be either shorter or longer than the regular three month period.
None.
CHAPTER VIll
Amendments, Interpretation, Arbitration ARTICLE 60
AMENDMENTS
(I) Any proposal to introduce modifications to this Agreement, whether em-anating from a member, a governor or the Board of Directors,shall becommunicated to the Chairman of the Board of Governors, who shall bring rhe proposal before that Board. If the proposed amendment is approved by the Board, the Bank shall, by circular letter or telegram, ask the members whether they accept the proposed amendment. When two-thirds of the members having three-quarters of the total voting power of the members. have accepted the proposed amendment, the Bank shall certify the fact by formal communication addressed to the members.
(2) Notwithstanding paragraph (I) of this Article, acceptance by all the members is required for any amendment modifying:
(i) the right secured by paragraph (2) of Article 6 of this Agreement;
(ii) the limitation on liability provided in paragraph (5) of that Article;
and
(iii) the right to withdraw from the Bank provided in Article 43 of this Agreement.
(3) Amendments shall enter into force for all members three months after the date of the formal communication provided for in paragraph (1) of this Article unless the Board of Governors specifies a different period.
(4) Notwithstanding the provisions of paragraph (I) of this Article, three years at the latest after the entry into force of this Agreement and in the light of the ex-perience of the Bank, the rule according to which each member should have one vote shall be examined by the Board of Governors or at a meeting of Heads of State of the member countries in accordance with the conditions that applied to the adoption of this Agreement.
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194-Draft prepared by the Committee of Nine
Explanatory notes submitted by the Committee of Nine
Amendments proposed by international organizations
Final text adopted by the Conference
INTERPRETAnON Interpretation (Article 62)
(I) The English and French texts of this Agreement shall be regarded as equally authentic.
(2) Any question of interpretation of the provisions of this Agreement arising between any member and the Bank or between any members of the Bank shall be submitted to the Eoard of Directors for decision. If there is no director of its nationality on that Board, a member particularly affected by the question under consideration shall be entitled to direct representation in such cases.
(3) In any case where the Board of Directors has given a decision under para-graph (2) of this Article, any member may require that the question be referred to the Board of Governors, whose decision shall be final. Pending the result of the reference to that Board, the Bank may, so far asitdeems necessary, act011 the basi..;
of the decision of the Eoard of Directors.
1. The question of an authoritative interpretation of their provision~ has been resolved by the !BRD, IFC, IDA and IABD in a special fashion. Their method, it is suggested, should be adopted for the Bank.
2. Consequently, paragraphs (2) and (3) of this Article follow closely the texts of !BRD, Art. IX (a) and (b): IFC, Art. VIII (a) and (b); IDA, Art. X (a) and (b);
IADB, Art. XIII (I).
3. Following the precedent of Art. 74 of the Constitution of the World Health Organization, paragraph (I) defines the texts of the Agreement which are
"authentic" and serve for the purpose of its interpretation.
IBRD: Presumably the prOVtSlOn for direct representation is not intended to affect the voting rights of Directors. It might be useful to make this clear by an express statement.
ARTICLE 61 INTERPRETAnON
(I) The English and French texts of this Agreement shall be regarded as equally authentic.
(2) Any question of interpretation of the provisions of this Agreement arising between any member and the Bank or between any members of the Bunk shall be submitted to the Board of Directors for decision. Ifthere is no djrector of its nationality on that Eoard, a member particularly affected by the question under consideration shall be entitled to direct representation in such cases. Such right of representation shall be regulated by the Board of Governors.
(3) In any case where the Board of Directors has given a decision under para-graph (2) of this Article, any member may require that the question be referred to the Board of Governors, whose decision shall be sought - under a procedure to be established in accordance with paragraph (3) of Article 31 of this Agreement -within three months. That decision shall be final.
Draft prepared by the Committee of Nine
Explanatory notes submitted by the Committee of Nine
Amendments proposed by Governments
Final text adopted by the Conference
ARBITRATION Arbitration (Article 63)
Whenever a disagreement arises between the Bank and the Government of a State which has ceased to be a member, or between the Bank and any member upon the termination of the operations of the Bank, such disagreement shall be submitted to arbitration by a tribunal of three arbitrators. One of the arbitrators shall be appointed by the Bank, another by the Government of the State concerned, and the third arbitrator, unless the parties otherwise agree, shall be appointed by the President of the International Court of Justice or such other authority as may have been prescribed by regulation adopted by the Board of Governors. The third arbitrator shall have full power to settle all questions of procedure in any case where the parties are in disagreement with respect thereto.
I. It will be noted that the Article, which closely follows the text of IBRO, Art.
IX; IFC, Art. VIII (c); and IDA, Art. X (c), refers to the settlement of disputes which arise in cases where, in fact, membership ceases. The Bankwill,no doubt, adopt regulations providing - as the other lending agencies do - for arbitral settlement of disputes between a member and the Bank arising out of loan or guarantee agree-ments.
2. In view of a recent judgment of the International Court of Justice, the term
"umpire" has-as in the case of the IADB, Art. XIII (2) - been replaced by the term "third arbitrator".
Kenya
I
Tanganyika \ As to the appointment of the ·'third arbitrator", delete reference to authority other than the President of the International Court of Justice.
Such a reference, addsKenya.is not absolutely necessary and may give rise to argu-ment as to whether there should be a prescribed minimum vote of the Board of Governors for the adoption of a regulation appointing a "third arbitrator".
ARTICLE 62 ARBITRATION
In the case of a dispute between the Bank and the Government of a State which has ceased to be a member, or between the Bank and any member upon the termination of the operations of the Bank, such dispute shall be submitted to arbitration by a tribunal of three arbitrators. One of the arbitrators shall be appoint-ed by the Bank, another by the Government of the State concernappoint-ed, and the third arbitrator, unless the parties otherwise agree, shall be appointed by such other authority as may have been prescribed by regulations adopted by the Board of Governors. The third arbitrator shall have full power to settle all questions of pro-cedure in any case where the parties are in disagreement with respect thereto.
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196-Draft prepared by the Committee of Nine
Explanatory notes submitted by the Committee of Nine
Amendments proposed by Governments
CHAPTER IX