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UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982
Article 299
Right of the parties to agree upon a procedure
1. A dispute excluded under Article 297 or excepted by a declaration
made under Article 298 from the dispute settlement procedures provided for
in section 2 may be submitted to such procedures only by agreement of the
parties to the dispute.
2. Nothing in this section impairs the right of the parties to the
dispute to agree to some other procedure for the settlement of such
dispute or to reach an amicable settlement.
PART XVI GENERAL PROVISIONS
Article 300
Good faith and abuse of rights
States Parties shall fulfil in good faith the obligations assumed
under this Convention and shall exercise the rights, jurisdiction and
freedoms recognised in this Convention in a manner which would not
constitute an abuse of right.
Article 301
Peaceful uses of the seas
In exercising their rights and performing their duties under this
Convention, States Parties shall refrain from any threat or use of force
against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the principles of international
law embodied in the Charter of the United Nations.
Article 302
Disclosure of information
Without prejudice to the right of a State Party to resort to the
procedures for the settlement of disputes provided for in this Convention,
nothing in this Convention shall be deemed to require a State Party, in
the fulfilment of its obligations under this Convention, to supply
information the disclosure of which is contrary to the essential interests
of its security.
Article 303
Archaeological and historical objects found at sea
1. States have the duty to protect objects of an archaeological and
historical nature found at sea and shall co-operate for this purpose.
2. In order to control traffic in such objects, the coastal State may,
in applying Article 33, presume that their removal from the sea-bed in the
zone referred to in that Article without its approval would result in an
infringement within its territory or territorial sea of the laws and
regulations referred to in that Article.
3. Nothing in this Article affects the rights of identifiable owners,
the law of salvage or other rules of admiralty, or laws and practices with
respect to cultural exchanges.
4. This Article is without prejudice to other international agreements
and rules of international law regarding the protection of objects of an
archaeological and historical nature.
Article 304
Responsibility and liability for damage
The provisions of this Convention regarding responsibility and
liability for damage are without prejudice to the application of existing
rules and the development of further rules regarding responsibility and
liability under international law.
PART XVII FINAL PROVISIONS
Article 305
Signature
1. This Convention shall be open for signature by:
(a) all States;
(b) Namibia, represented by the United Nations Council for
Namibia;
(c) all self-governing associated States which have chosen that
status in an act of self-determination supervised and approved by the
United Nations in accordance with General Assembly resolution 1514 (XV)
and which have competence over the matters governed by this Convention,
including the competence to enter into treaties in respect of those
matters;
(d) all self-governing associated States which, in accordance with
their respective instruments of association, have competence over the
matters governed by this Convention, including the competence to enter
into treaties in respect of those matters;
(e) all territories which enjoy full internal self-government,
recognised as such by the United Nations, but have not attained full
independence in accordance with General Assembly resolution 1514 (XV) and
which have competence over the matters governed by this Convention,
including the competence to enter into treaties in respect of those
matters;
(f) international organisations, in accordance with Annex IX.
2. This Convention shall remain open for signature until December 9,
1984 at the Ministry of Foreign Affairs of Jamaica and also, from July 1,
1983 until December 9, 1984, at United Nations Headquarters in New York.
Article 306
Ratification and formal confirmation
This Convention is subject to ratification by States and the other
entities referred to in Article 305, paragraph 1 (b), (c), (d) and (e),
and to formal confirmation, in accordance with Annex IX, by the entities
referred to in Article 305, paragraph 1 (f). The instruments of
ratification and of formal confirmation shall be deposited with the
Secretary-General of the United Nations.
Article 307
Accession
This Convention shall remain open for accession by States and the
other entities referred to in Article 305. Accession by the entities
referred to in Article 305, paragraph 1 (f), shall be in accordance with
Annex IX. The instruments of accession shall be deposited with the
Secretary-General of the United Nations.
Article 308
Entry into force
1. This Convention shall enter into force 12 months after the date of
deposit of the sixtieth instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the
deposit of the sixtieth instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day following the
deposit of its instrument of ratification or accession, subject to
paragraph 1.
3. The Assembly of the Authority shall meet on the date of entry into
force of this Convention and shall elect the Council of the Authority. The
first Council shall be constituted in a manner consistent with the purpose
of Article 161 if the provisions of that Article cannot be strictly
applied.
4. The rules, regulations and procedures drafted by the Preparatory
Commission shall apply provisionally pending their formal adoption by the
Authority in accordance with Part XI.
5. The Authority and its organs shall act in accordance with
resolution II of the Third United Nations Conference on the Law of the Sea
relating to preparatory investment and with decisions of the Preparatory
Commission taken pursuant to that resolution.
Article 309
Reservations and exceptions
No reservations or exceptions may be made to this Convention unless
expressly permitted by other Articles of this Convention.
Article 310
Declarations and statements
Article 309 does not preclude a State, when signing, ratifying or
acceding to this Convention, from making declarations or statements,
however phrased or named, with a view, inter alia, to the harmonisation of
its laws and regulations with the provisions of this Convention, provided
that such declarations or statements do not purport to exclude or to
modify the legal effect of the provisions of this Convention in their
application to that State.
Article 311
Relation to other conventions and international agreements
1. This Convention shall prevail, as between States Parties, over the
Geneva Conventions on the Law of the Sea of April 29, 1958.
2. This Convention shall not alter the rights and obligations of
States Parties which arise from other agreements compatible with this
Convention and which do not affect the enjoyment by other States Parties
of their rights or the performance of their obligations under this
Convention.
3. Two or more States Parties may conclude agreements modifying or
suspending the operation of provisions of this Convention, applicable
solely to the relations between them, provided that such agreements do
not relate to a provision derogation from which is incompatible with the
effective execution of the object and purpose of this Convention, and
provided further that such agreements shall not affect the application of
the basic principles embodied herein, and that the provisions of such
agreements do not affect the enjoyment by other States Parties of their
rights or the performance of their obligations under this Convention.
4. States Parties intending to conclude an agreement referred to in
paragraph 3 shall notify the other States Parties through the depositary
of this Convention of their intention to conclude the agreement and of the
modification or suspension for which it provides.
5. This Article does not affect international agreements expressly
permitted or preserved by other Articles of this Convention.
6. States Parties agree that there shall be no amendments to the basic
principle relating to the common heritage of mankind set forth in Article
136 and that they shall not be party to any agreement in derogation
thereof.
Article 312
Amendment
1. After the expiry of a period of 10 years from the date of entry
into force of this Convention, a State Party may, by written
communication addressed to the Secretary-General of the United Nations,
propose specific amendments to this Convention, other than those relating
to activities in the Area, and request the convening of a conference to
consider such proposed amendments. The Secretary-General shall circulate
such communication to all States Parties. If, within 12 months from the
date of the circulation of the communication, not less than one half of
the States Parties reply favourably to the request, the Secretary-General
shall convene the conference.
2. The decision-making procedure applicable at the amendment
conference shall be the same as that applicable at the Third United
Nations Conference on the Law of the Sea unless otherwise decided by the
conference. The conference should make every effort to reach agreement on
any amendments by way of consensus and there should be no voting on them
until all efforts at consensus have been exhausted.
Article 313
Amendment by simplified procedure
1. A State Party may, by written communication addressed to the
Secretary-General of the United Nations, propose an amendment to this
Convention, other than an amendment relating to activities in the Area, to
be adopted by the simplified procedure set forth in this Article without
convening a conference. The Secretary-General shall circulate the
communication to all States Parties.
2. If, within a period of 12 months from the date of the circulation
of the communication, a State Party objects to the proposed amendment or
to the proposal for its adoption by the simplified procedure, the
amendment shall be considered rejected. The Secretary-General shall
immediately notify all States Parties accordingly.
3. If, 12 months from the date of the circulation of the
communication, no State Party has objected to the proposed amendment or to
the proposal for its adoption by the simplified procedure, the proposed
amendment shall be considered adopted. The Secretary-General shall notify
all States Parties that the proposed amendment has been adopted.
Article 314
Amendments to the provisions of this Convention relating exclusively
to activities in the Area
1. A State Party may, by written communication addressed to the
Secretary-General of the Authority, propose an amendment to the provisions
of this Convention relating exclusively to activities in the Area,
including Annex VI, section 4. The Secretary-General shall circulate such
communication to all States Parties. The proposed amendment shall be
subject to approval by the Assembly following its approval by the Council.
Representatives of States Parties in those organs shall have full powers
to consider and approve the proposed amendment. The proposed amendment as
approved by the Council and the Assembly shall be considered adopted.
2. Before approving any amendment under paragraph 1, the Council and
the Assembly shall ensure that it does not prejudice the system of
exploration for an exploitation of the resources of the Area, pending the
Review Conference in accordance with Article 155.
Article 315
Signature, ratification of, accession to and authentic texts of
amendments
1. Once adopted, amendments to this Convention shall be open for
signature by States Parties for 12 months from the date of adoption, at
United Nations Headquarters in New York, unless otherwise provided in the
amendment itself.
2. Articles 306, 307 and 320 apply to all amendments to this
Convention.
Article 316
Entry into force of amendments
1. Amendments to this Convention, other than those referred to in
paragraph 5, shall enter into force for the States Parties ratifying or
acceding to them on the thirtieth day following the deposit of instruments
of ratification or accession by two thirds of the States Parties or by 60
States Parties, whichever is greater. Such amendments shall not affect the
enjoyment by other States Parties of their rights or the performance of
their obligations under this Convention.
2. An amendment may provide that a larger number of ratification or
accessions shall be required for its entry into force than are required by
this Article.
3. For each State Party ratifying or acceding to an amendment referred
to in paragraph 1 after the deposit of the required number of instruments
of ratification or accession, the amendment shall enter into force on the
thirtieth day following the deposit of its instrument of ratification or
accession.
4. A State which becomes a Party to this Convention after the entry
into force of an amendment in accordance with paragraph 1 shall, failing
an expression of a different intention by that State:
(a) be considered as a Party to this Convention as so amended; and
(b) be considered as a Party to the unamended Convention in
relation to any State Party not bound by the amendment.
5. Any amendment relating exclusively to activities in the Area and
any amendment to Annex VI shall enter into force for all States Parties
one year following the deposit of instruments of ratification or accession
by three fourths of the States Parties.
6. A State which becomes a Party to this Convention after the entry
into force of amendments in accordance with paragraph 5 shall be
considered as a Party to this Convention as so amended.
Article 317
Denunciation
1. A State Party may, by written notification addressed to the
Secretary-General of the United Nations, denounce this Convention and may
indicate its reasons. Failure to indicate reasons shall not affect the
validity of the denunciation. The denunciation shall take effect one year
after the date of receipt of the notification, unless the notification
specifies a later date.
2. A State shall not be discharged by reason of the denunciation from
the financial and contractual obligations which accrued while it was a
Party to this Convention, nor shall the denunciation affect any right,
obligation or legal situation of that State created through the execution
of this Convention prior to its termination for that State.
3. The denunciation shall not in any way affect the duty of any State
Party to fulfil any obligation embodied in this Convention to which it
would be subject under international law independently of this Convention.
Article 318
Status of Annexes
The Annexes form an integral part of this Convention and, unless
expressly provided otherwise, a reference to this Convention or to one of
its Parts includes a reference to the Annexes relating thereto.
Article 319
Depositary
1. The Secretary-General of the United Nations shall be the depositary
of this Convention and amendments thereto.
2. In addition to his functions as depositary, the Secretary-General
shall:
(a) report to all States Parties, the Authority and competent
international organisations on issues of a general nature that have arisen
with respect to this Convention;
(b) notify the Authority of ratification and formal confirmations
of and accessions to this Convention and amendments thereto, as well as of
denunciations of this Convention;
(c) notify States Parties of agreements in accordance with Article
311, paragraph 4;
(d) circulate amendments adopted in accordance with this
Convention to States Parties for ratification or accession;
(e) convene necessary meetings of States Parties in accordance
with this Convention.
3. (a) The Secretary-General shall also transmit to the observers
referred to in Article 156:
(i) reports referred to in paragraph (a);
(ii) notifications referred to in paragraph 2(b) and (c); and
(iii) texts of amendments referred to in paragraph 2(d), for
their information.
(b) The Secretary-General shall also invite those observers to
participate as observers at meetings of States Parties referred to in
paragraph 2(e).
Article 320
Authentic texts
The original of this Convention, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic, shall,
subject to Article 305, paragraph 2, be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly
authorised thereto, have signed this Convention.
DONE AT MONTEGO BAY, this tenth day of December, one thousand nine
hundred and eighty-two.
ANNEX I. HIGHLY MIGRATORY SPECIES
1. Albacore tuna: Thunnus alalunga.
2. Bluefin tuna: Thunnus thynnus.
3. Bigeye tuna: Thunnus obesus.
4. Skipjack tuna: Katsuwonus pelamis.
5. Yellowfin tuna: Thunnus albacares.
6. Blackfin tuna: Thunnus atlanticus.
7. Little tuna: Euthynnus alletteratus; Euthynnus affinis.
8. Southern Bluefin tuna: Thunnus maccoyii.
9. Frigate mackerel: Auxis thazard; Auxis rochei.
10. Pomfrets: Family Bramidae.
11. Marlins: Tetrapturus angustirostris; Tetrapturus belone;
Tetrapturus pfluegeri; Tetrapturus albidus; Tetrapturus audax; Tetrapturus
georgei; Makaira mazara; Makaira indica; Makaira nigricans.
12. Sail-fishes: Istiophorus platy pterus; Istiophorus albicans.
13. Swordfish: Xiphias gladius.
14. Sauries: Scomberesox saurus; Cololabis saira cololabis adocetus;
Scomberesox saurus scombroides.
15. Dolphin: Coryphaena hippurus; Coryphaena equiselis.
16. Oceanic sharks: Hexanchus griseus; Cetorhinus maximus; Family
Alopiidae; Rhincodon typus; Family Carcharhinidae; Family Sphyrnidae;
Family Isurida.
17. Cetaceans: Family Physeteridae; Family Balaenopteridae; Family
Balaenidae; Family Eschrichtiidae; Family Monodontidae, Family Ziphiidae;
Family Delphinidae.
ANNEX II. COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF
Article 1
In accordance with the provisions of Article 76, a Commission on the
Limits of the Continental Shelf beyond 200 nautical miles shall be
established in conformity with the following Articles.
Article 2
1. The Commission shall consist of 21 members who shall be experts in
the field of geology, geophysics or hydrography, elected by States
Parties to this Convention from among their nationals, having due regard
to the need to ensure equitable geographical representation, who shall
serve in their personal capacities.
2. The initial election shall be held as soon as possible but in any
case within 18 months after the date of entry into force of this
Convention. At least three months before the date of each election, the
Secretary-General of the United Nations shall address a letter to the
States Parties, inviting the submission of nominations, after appropriate
regional consultations, within three months. The Secretary-General shall
prepare a list in alphabetical order of all persons thus nominated and
shall submit it to all the States Parties.
3. Elections of the members of the Commission shall be held at a
meeting of States Parties convened by the Secretary-General at United
Nations Headquarters. At that meeting, for which two thirds of the States
Parties shall constitute a quorum, the persons elected to the Commission
shall be those nominees who obtain a two-thirds majority of the votes of
the representatives of States Parties present and voting. Not less than
three members shall be elected from each geographical region.
4. The members of the Commission shall be elected for a term of five
years. They shall be eligible for re-election.
5. The State Party which submitted the nomination of a member of the
Commission shall defray the expenses of that member while in performance
of Commission duties. The coastal State concerned shall defray the
expenses incurred in respect of the advice referred to in Article 3,
paragraph 1 (b), of this Annex. The secretariat of the Commission shall be
provided by the Secretary-General of the United Nations.
Article 3
1. The functions of the Commission shall be:
(a) to consider the data and other material submitted by coastal
States concerning the outer limits of the continental shelf in areas where
those limits extend beyond 200 nautical miles, and to make recommendations
in accordance with Article 76 and the Statement of Understanding adopted
on August 29, 1980 by the Third United Nations Conference on the Law of
the Sea;
(b) to provide scientific and technical advice, if requested by
the coastal State concerned during the preparation of the data referred to
in subparagraph (a).
2. The Commission may co-operate, to the extent considered necessary
and useful, with the Intergovernmental Oceanographic Commission of UNESCO,
the International Hydrographic Organisation and other competent
international organisations with a view to exchanging scientific and
technical information which might be of assistance in discharging the
Commission's responsibilities.
Article 4
Where a coastal State intends to establish, in accordance with Article
76, the outer limits of its continental shelf beyond 200 nautical miles,
it shall submit particulars of such limits to the Commission along with
supporting scientific and technical data as soon as possible but in any
case within 10 years of the entry into force of this Convention for that
State. The coastal State shall at the same time give the names of any
Commission members who have provided it with scientific and technical
advice.
Article 5
Unless the Commission decides otherwise, the Commission shall function
by way of subcommissions composed of seven members, appointed in a
balanced manner taking into account the specific elements of each
submission by a coastal State. Nationals of the coastal State making the
submission who are members of the Commission and any Commission member who
has assisted a coastal State by providing scientific and technical advice
with respect to the delineation shall not be a member of the
sub-commission dealing with that submission but has the right to
participate as a member in the proceedings of the Commission concerning
the said submission. The coastal State which has made a submission to the
Commission may send its representatives to participate in the relevant
proceedings without the right to vote.
Article 6
1. The sub-commission shall submit its recommendations to the
Commission.
2. Approval by the Commission of the recommendations of the
subcommission shall be by a majority of two thirds of Commission members
present and voting.
3. The recommendations of the Commission shall be submitted in writing
to the coastal State which made the submission and to the
Secretary-General of the United Nations.
Article 7
Coastal States shall establish the outer limits of the continental
shelf in conformity with the provisions of Article 76, paragraph 8, and in
accordance with the appropriate national procedures.
Article 8
In the case of disagreement by the coastal State with the
recommendations of the Commission, the coastal State shall, within a
reasonable time, make a revised or new submission to the Commission.
Article 9
The actions of the Commission shall not prejudice matters relating to
delimitation of boundaries between States with opposite or adjacent
coasts.
ANNEX III. BASIC CONDITIONS OF PROSPECTING, EXPLORATION AND EXP-LOITATION
Article 1
Title to minerals
Title to minerals shall pass upon recovery in accordance with this
Convention.
Article 2
Prospecting
1. (a) The Authority shall encourage prospecting in the Area.
(b) Prospecting shall be conducted only after the Authority has
received a satisfactory written undertaking that the proposed prospector
will comply with this Convention and the relevant rules, regulations and
procedures of the Authority concerning co-operation in the training
programmes referred to in Articles 143 and 144 and the protection of the
marine environment, and will accept verification by the Authority of
compliance therewith. The proposed prospector shall, at the same time,
notify the Authority of the approximate area or areas in which prospecting
is to be conducted.
(c) Prospecting may be conducted simultaneously by more than one
prospector in the same area or areas.
2. Prospecting shall not confer on the prospector any rights with
respect to resources. A prospector may, however, recover a reasonable
quantity of minerals to be used for testing.
Article 3
Exploration and exploitation
1. The Enterprise, States Parties, and the other entities referred to
in Article 153, paragraph 2(b), may apply to the Authority for approval of
plans of work for activities in the Area.
2. The Enterprise may apply with respect to any part of the Area, but
applications by others with respect to reserved areas are subject to the
additional requirements of Article 9 of this Annex.
3. Exploration and exploitation shall be carried out only in areas
specified in plans of work referred to in Article 153, paragraph 3, and
approved by the Authority in accordance with this Convention and the
relevant rules, regulations and procedures of the Authority.
4. Every approved plan of work shall:
(a) be in conformity with this Convention and the rules,
regulations and procedures of the Authority;
(b) provide for control by the Authority of activities in the Area
in accordance with Article 153, paragraph 4.
(c) confer on the operator, in accordance with the rules,
regulations and procedures of the Authority, the exclusive right to
explore for and exploit the specified categories of resources in the area
covered by the plan of work. If, however, the applicant presents for
approval a plan of work covering only the stage of exploration or the
stage of exploitation, the approved plan of work shall confer such
exclusive right with respect to that stage only.
5. Upon its approval by the Authority, every plan of work, except
those presented by the Enterprise, shall be in the form of a contract
concluded between the Authority and the applicant or applicants.
Article 4
Qualifications of applicants
1. Applicants, other than the Enterprise, shall be qualified if they
have the nationality or control and sponsorship required by Article 153,
paragraph 2(b), and if they follow the procedures and meet the
qualification standards set forth in the rules, regulations and procedures
of the Authority.
2. Except as provided in paragraph 6, such qualification standards
shall relate to the financial and technical capabilities of the applicant
and his performance under any previous contracts with the Authority.
3. Each applicant shall be sponsored by the State Party of which it is
a national unless the applicant has more than one nationality, as in the
case of a partnership or consortium of entities from several States, in
which event all States Parties involved shall sponsor the application, or
unless the applicant is effectively controlled by another State Party or
its nationals, in which event both States Parties shall sponsor the
application. The criteria and procedures for implementation of the
sponsorship requirements shall be set forth in the rules, regulations and
procedures of the Authority.
4. The sponsoring State or States shall, pursuant to Article 139, have
the responsibility to ensure, within their legal systems, that a
contractor so sponsored shall carry out activities in the Area in
conformity with the terms of its contract and its obligations under this
Convention. A sponsoring State shall not, however, be liable for damage
caused by any failure of a contractor sponsored by it to comply with its
obligations if that State Party has adopted laws and regulations and taken
administrative measures which are, within the framework of its legal
system, reasonably appropriate for securing compliance by persons under
its jurisdiction.
5. The procedures for assessing the qualifications of States Parties
which are applicants shall take into account their character as States.
6. The qualification standards shall require that every applicant,
without exception, shall as part of his application undertake:
(a) to accept as enforceable and comply with the applicable
obligations created by the provisions of Part XI, the rules, regulations
and procedures of the Authority, the decisions of the organs of the
Authority and terms of his contracts with the Authority;
(b) to accept control by the Authority of activities in the Area,
as authorised by this Convention;
(c) to provide the Authority with a written assurance that his
obligations under the contract will be fulfilled in good faith;
(d) to comply with the provisions on the transfer of technology
set forth in Article 5 of this Annex.
Article 5
Transfer of technology
1. When submitting a plan of work, every applicant shall make
available to the Authority a general description of the equipment and
methods to be used in carrying out activities in the Area, and other
relevant non-proprietary information about the characteristics of such
technology and information as to where such technology is available.
2. Every operator shall inform the Authority of revisions in the
description and information made available pursuant to paragraph 1
whenever a substantial technological change or innovation is introduced.
3. Every contract for carrying out activities in the Area shall
contain the following undertakings by the contractor:
(a) to make available to the Enterprise on fair and reasonable
commercial terms and conditions, whenever the Authority so requests, the
technology which he uses in carrying out activities in the Area under the
contract, which the contractor is legally entitled to transfer. This shall
be done by means of licences or other appropriate arrangements which the
contractor shall negotiate with the Enterprise and which shall be set
forth in a specific agreement supplementary to the contract. This
undertaking may be invoked only if the Enterprise finds that it is unable
to obtain the same or equally efficient and useful technology on the open
market on fair and reasonable commercial terms and conditions;
(b) to obtain a written assurance from the owner of any technology
used in carrying out activities in the Area under the contract, which is
not generally available on the open market and which is not covered by
subparagraph (a), that the owner will, whenever the Authority so requests,
make that technology available to the Enterprise under licence or other
appropriate arrangements and on fair and reasonable commercial terms and
conditions, to the same extent as made available to the contractor. If
this assurance is not obtained, the technology in question shall not be
used by the contractor in carrying out activities in the Area;
(c) to acquire from the owner by means of an enforceable contract,
upon the request of the Enterprise and if it is possible to do so without
substantial cost to the contractor, the legal right to transfer to the
Enterprise any technology used by the contractor, in carrying out
activities in the Area under the contract, which the contractor is
otherwise not legally entitled to transfer and which is not generally
available on the open market. In cases where there is a substantial
corporate relationship between the contractor and the owner of the
technology, the closeness of this relationship and the degree of control
or influence shall be relevant to the determination whether all feasible
measures have been taken to acquire such a right. In cases where the
contractor exercises effective control over the owner, failure to acquire
from the owner the legal right shall be considered relevant to the
contractor's qualification for any subsequent application for approval of
a plan of work;
(d) to facilitate, upon the request of the Enterprise, the
acquisition by the Enterprise of any technology covered by subparagraph
(b), under licence or other appropriate arrangements and on fair and
reasonable commercial terms and conditions, if the Enterprise decides to
negotiate directly with the owner of the technology;
(e) to take the same measures as are prescribed in subparagraphs
(a), (b), (c) and (d) for the benefit of a developing State or group of
developing States which has applied for a contract under Article 9 of this
Annex, provided that these measures shall be limited to the exploitation
of the part of the area proposed by the contractor which has been reserved
pursuant to Article 8 of this Annex and provided that activities under the
contract sought by the developing State or group of developing States
would not involve transfer of technology to a third State or the nationals
of a third State. The obligation under this provision shall only apply
with respect to any given contractor where technology has not been
requested by the Enterprise or transferred by that contractor to the
Enterprise.
4. Disputes concerning undertakings required by paragraph 3, like
other provisions of the contracts, shall be subject to compulsory
settlement in accordance with Part XI and, in cases of violation of these
undertakings, suspension or termination of the contract or monetary
penalties may be ordered in accordance with Article 18 of this Annex.
Disputes as to whether offers made by the contractor are within the range
of fair and reasonable commercial terms and conditions may be submitted by
either party to binding commercial arbitration in accordance with the
UNCITRAL Arbitration Rules or such other arbitration rules as may be
prescribed in the rules, regulations and procedures of the Authority. If
the finding is that the offer made by the contractor is not within the
range of fair and reasonable commercial terms and conditions, the
contractor shall be given 45 days to revise his offer to bring it within
that range before the Authority takes any action in accordance with
Article 18 of this Annex.
5. If the Enterprise is unable to obtain on fair and reasonable
commercial terms and conditions appropriate technology to enable it to
commence in a timely manner the recovery and processing of minerals from
the Area, either the Council or the Assembly may convene a group of States
Parties composed of those which are engaged in activities in the Area,
those which have sponsored entities which are engaged in activities in the
Area and other States Parties having access to such technology. This group
shall consult together and shall take effective measures to ensure that
such technology is made available to the Enterprise on fair and reasonable
commercial terms and conditions. Each such State Party shall take all
feasible measures to this end within its own legal system.
6. In the case of joint ventures with the Enterprise, transfer of
technology will be in accordance with the terms of the joint venture
agreement.
7. The undertakings required by paragraph 3 shall be included in each
contract for the carrying out of activities in the Area until 10 years
after the commencement of commercial production by the Enterprise, and may
be invoked during that period.
8. For the purposes of this Article, "technology" means the
specialised equipment and technical know-how, including manuals, designs,
operating instructions, training and technical advice and assistance,
necessary to assemble, maintain and operate a viable system and the legal
right to use these items for that purpose on a non-exclusive basis.
Article 6
Approval of plans of work
1. Six months after the entry into force of this Convention, and
thereafter each fourth month, the Authority shall take up for
consideration proposed plans of work.
2. When considering an application for approval of a plan of work in
the form of a contract, the Authority shall first ascertain whether:
(a) the applicant has complied with the procedures established,
for applications in accordance with Article 4 of this Annex and has given
the Authority the undertakings and assurances required by that Article. In
cases of non-compliance with these procedures or in the absence of any of
these undertakings and assurances, the applicant shall be given 45 days to
remedy these defects;
(b) the applicant possesses the requisite qualifications provided
for in Article 4 of this Annex.
3. All proposed plans of work shall be taken up in the order in which
they are received. The proposed plans of work shall comply with and be
governed by the relevant provisions of this Convention and the rules,
regulations and procedures of the Authority, including those on
operational requirements, financial contributions and the undertakings
concerning the transfer of technology. If the proposed plans of work
conform to these requirements, the Authority shall approve them provided
that they are in accordance with the uniform and non-discriminatory
requirements set forth in the rules, regulations and procedures of the
Authority, unless:
(a) part or all of the area covered by the proposed plan of work
is included in an approved plan of work or a previously submitted proposed
plan of work which has not yet been finally acted on by the Authority;
(b) part or all of the area covered by the proposed plan of work
is disapproved by the Authority pursuant to Article 162, paragraph 2(x);
or
(c) the proposed plan of work has been submitted or sponsored by a
State Party which already holds:
(i) plans of work for exploration and exploitation of
polymetallic nodules in non-reserved areas that, together with either part
of the area covered by the application for a plan of work, exceed in size
30 per cent of a circular area of 400,000 square kilometres surrounding
the centre of either part of the area covered by the proposed plan of
work;
(ii) plans of work for the exploration and exploitation of
polymetallic nodules in non-reserved areas which, taken together,
constitute 2 per cent of the total sea-bed area which is not reserved or
disapproved for exploitation pursuant to Article 162, paragraph 2(x).
4. For the purpose of the standard set forth in paragraph 3(c), a plan
of work submitted by a partnership or consortium shall be counted on a pro
rata basis among the sponsoring States Parties involved in accordance with
Article 4, paragraph 3, of this Annex. The Authority may approve plans of
work covered by paragraph 3 (c) if it determines that such approval would
not permit a State Party or entities sponsored by it to monopolise the
conduct of activities in the Area or to preclude other State Parties from
activities in the Area.
5. Notwithstanding paragraph 3(a), after the end of the interim period
specified in Article 151, paragraph 3, the Authority may adopt by means of
rules, regulations and procedures other procedures and criteria consistent
with this Convention for deciding which applicants shall have plans of
work approved in cases of selection among applicants for a proposed area.
These procedures and criteria shall ensure approval of plans of work on an
equitable and non-discriminatory basis.
Article 7
Selection among applicants for production authorisations
1. Six months after the entry into force of this Convention, and
thereafter each fourth month, the Authority shall take up for
consideration applications for production authorisations submitted during
the immediately preceding period. The Authority shall issue the
authorisations applied for if all such applications can be approved
without exceeding the production limitation or contravening the
obligations of the Authority under a commodity agreement or arrangement to
which it has become a party, as provided in Article 151.
2. When a selection must be made among applicants for production
authorisations because of the productions limitation set forth in Article
151, paragraphs 2 to 7, or because of the obligations of the Authority
under a commodity agreement or arrangement to which it has become a party,
as provided for in Article 151, paragraph 1, the Authority shall make the
selection on the basis of objective and non-discriminatory standards set
forth in its rules, regulations and procedures.
3. In the application of paragraph 2, the Authority shall give
priority to those applicants which:
(a) give better assurance of performance, taking into account
their financial and technical qualifications and their performance, if
any, under previously approved plans of work;
(b) provide earlier prospective financial benefits to the
Authority, taking into account when commercial production is scheduled to
begin;
(c) have already invested the most resources and effort in
prospecting or exploration.
4. Applicants which are not selected in any period shall have priority
in subsequent periods until they receive a production authorisation.
5. Selection shall be made taking into account the need to enhance
opportunities for all States Parties, irrespective of their social and
economic systems or geographical locations so as to avoid discrimination
against any State or system, to participate in activities in the Area and
to prevent monopolisation of those activities.
6. Whenever fewer reserved areas than non-reserved areas are under
exploitation, applications for production authorisations with respect to
reserved areas shall have priority.
7. The decisions referred to in this Article shall be taken as soon as
possible after the close of each period.
Article 8
Reservation of areas
Each application, other than those submitted by the Enterprise or by
any other entities for reserved areas, shall cover a total area, which
need not be a single continuous area, sufficiently large and of sufficient
estimated commercial value to allow two mining operations. The applicant
shall indicate the co-ordinates dividing the area into two parts of equal
estimated commercial value and submit all the date obtained by him with
respect to both parts. Without prejudice to the powers of the Authority
pursuant to Article 17 of this Annex, the data to be submitted concerning
polymetallic nodules shall relate to mapping, sampling, the abundance of
nodules, and their metal content. Within 45 days of receiving such data,
the Authority shall designate which part is to be reserved solely for the
conduct of activities by the Authority through the Enterprise or in
association with developing States. This designation may be deferred for a
further period of 45 days if the Authority requests an independent expert
to assess whether all data required by this Article has been submitted.
The area designated shall become a reserved area as soon as the plan of
work for the non-reserved area is approved and the contract is signed.
Article 9
Activities in reserved areas
1. The Enterprise shall be given an opportunity to decide whether it
intends to carry out activities in each reserved area. This decision may
be taken at any time, unless a notification pursuant to paragraph 4 is
received by the Authority, in which event the Enterprise shall take its
decision within a reasonable time. The Enterprise may decide to exploit
such areas in joint ventures with the interested State or entity.
2. The Enterprise may conclude contracts for the execution of part of
its activities in accordance with Annex IV, Article 12. It may also enter
into joint ventures for the conduct of such activities with any entities
which are eligible to carry out activities in the Area pursuant to Article
153, paragraph 2 (b). When considering such joint ventures, the Enterprise
shall offer to States Parties which are developing States and their
nationals the opportunity of effective participation.
3. The Authority may prescribe, in its rules, regulations and
procedures substantive and procedural requirements and conditions with
respect to such contracts and joint ventures.
4. Any State Party which is a developing State or any natural or
juridical person sponsored by it and effectively controlled by it or by
other developing State which is a qualified applicant, or any group of
the foregoing, may notify the Authority that it wishes to submit a plan of
work pursuant to Article 6 of this Annex with respect to a reserved area.
The plan of work shall be considered if the Enterprise decides, pursuant
to paragraph 1, that it does not intend to carry out activities in that
area.
Article 10
Preference and priority among applicants
An operator who has an approved plan of work for exploration only, as
provided in Article 3, paragraph 4(c), of this Annex shall have a
preference and a priority among applicants for a plan of work covering
exploitation of the same area and resources. However, such preference or
priority may be withdrawn if the operator's performance has not been
satisfactory.
Article 11
Joint arrangements
1. Contracts may provide for joint arrangements between the contractor
and the Authority through the Enterprise, in the form of joint ventures or
production sharing, as well as any other form of joint arrangement, which
shall have the same protection against revision, suspension or termination
as contracts with the Authority.
2. Contractors entering into such joint arrangements with the
Enterprise may receive financial incentives as provided for in Article 13
of this Annex.
3. Partners in joint ventures with the Enterprise shall be liable for
the payments required by Article 13 of this Annex to the extent of their
share in the joint ventures, subject to financial incentives as provided
for in that Article.
Article 12
Activities carried out by the Enterprise
1. Activities in the Area carried out by the Enterprise pursuant to
Article 153, paragraph 2 (a), shall be governed by Part XI, the rules,
regulations and procedures of the Authority and its relevant decisions.
2. Any plan of work submitted by the Enterprise shall be accompanied
by evidence supporting its financial and technical capabilities.
Article 13
Financial terms of contracts
1. In adopting rules, regulations and procedures concerning the
financial terms of a contract between the Authority and the entities
referred to in Article 153, paragraph 2(b), and in negotiating those
financial terms in accordance with Part XI and those rules, regulations
and procedures, the Authority shall be guided by the following objectives:
(a) to ensure optimum revenues for the Authority from the proceeds
of commercial production;
(b) to attract investments and technology to the exploration and
exploitation of the Area;
(c) to ensure equality of financial treatment and comparable
financial obligations for contractors;
(d) to provide incentives on a uniform and non-discriminatory
basis for contractors to undertake joint arrangements with the Enterprise
and developing States or their nationals, to stimulate the transfer of
technology thereto, and to train the personnel of the Authority and of
developing States;
(e) to enable the Enterprise to engage in sea-bed mining
effectively at the same time as the entities referred to in Article 153,
paragraph 2(b); and
(f) to ensure that, as a result of the financial incentives
provided to contractors under paragraph 14, under the terms of contracts
reviewed in accordance with Article 19 of this Annex or under the
provisions of Article 11 of this Annex with respect to joint ventures,
contractors are not subsidised so as to be given an artificial competitive
advantage with respect to land-based miners.
2. A fee shall be levied for the administrative cost of processing an
application for approval of a plan of work in the form of a contract and
shall be fixed at an amount of $ US 500,000 per application. The amount of
the fee shall be reviewed from time to time by the Council in order to
ensure that it covers the administrative cost incurred. If such
administrative cost incurred by the Authority in processing an application
is less than the fixed amount, the Authority shall refund the difference
to the applicant.
3. A contractor shall pay an annual fixed fee of $ US 1 million from
the date of entry into force of the contract. If the approved date of
commencement of commercial production is postponed because of a delay in
issuing the production authorisation, in accordance with Article 151, the
annual fixed fee shall be waived for the period of postponement. From the
date of commencement of commercial production, the contractor shall pay
either the production charge or the annual fixed fee, whichever is
greater.
4. Within a year of the date of commencement of commercial production,
in conformity with paragraph 3, a contractor shall choose to make his
financial contribution to the Authority by either:
(a) paying a production charge only; or
(b) paying a combination of a production charge and a share of net
proceeds.
5. (a) If a contractor chooses to make his financial contribution to
the Authority by paying a production charge only, it shall be fixed at a
percentage of the market value of the processed metals produced from the
polymetallic nodules recovered from the area covered by the contract. This
percentage shall be fixed as follows:
(i) years 1-10 of commercial production
5 per cent
(ii) years 11 to the end of commercial production
12 per cent
(b) The said market value shall be the product of the quantity of
the processed metals produced from the polymetallic nodules extracted from
the area covered by the contract and the average price for those metals
during the relevant accounting year, as defined in paragraphs 7 and 8.
6. If a contractor chooses to make his financial contribution to the
Authority by paying a combination of a production charge and a share of
net proceeds, such payments shall be determined as follows:
(a) The production charge shall be fixed at a percentage of the
market value, determined in accordance with subparagraph (b), of the
processed metals produced from the polymetallic nodules recovered from the
area covered by the contract. This percentage shall be fixed as follows:
(i) first period of commercial production 2 per cent
(ii) second period of commercial production 4 per cent
If, in the second period of commercial production, as defined in
subparagraph (d), the return on investment in any accounting year as
defined in subparagraph (m) falls below 15 per cent as a result of the
payment of the production charge at 4 per cent, the production charge
shall be 2 per cent instead of 4 per cent in that accounting year.
(b) The said market value shall be product of the quantity of the
processed metals produced from the polymetallic nodules recovered from the
area covered by the contract and the average price for those metals during
the relevant accounting year as defined in paragraphs 7 and 8.
(c) (i) The Authority's share of net proceeds shall be taken out
of that portion of the contractor's net proceeds which is attributable to
the mining of the resources of the area covered by the contract, referred
to hereinafter as attributable net proceeds.
(ii) The Authority's share of attributable net proceeds shall
be determined in accordance with the following incremental schedule:
|-----------|---------|
|Portion of attributable net proceeds | Share of the Authority |
|-----------|---------|
|First period of | Second period of|
|commercial | commercial |
|production | production |
|-----------|---------|
|That portion re presentinga return | |
|on investment which is greater than | |
|0 per cent, but less than 10 per cent|35 per cent | 40 per cent |
|-----------|---------|
|That portion representing a return | |
|on investment which is 10 per cent | |
|or greater, but less than 20 per cent|42.5 per cent | 50 per cent |
|-----------|---------|
|That portion representing a return | |
|on investment which is 20 per cent | |
|or greater | 50 percent | 70 per cent |
|-----------|---------|
(d) (i) The first period of commercial production referred to in
subparagraphs (a) and (c) shall commence in the first accounting year of
commercial production and terminate in the accounting year in which the
contractor's development costs with interest on the un-recovered portion
thereof are fully recovered by his cash surplus, as follows:
In the first accounting year during which development costs are
incurred, un-recovered development costs shall equal the development
costs less cash surplus in that year. In each subsequent accounting year,
un-recovered development costs shall equal the unrecovered development
costs at the end of the preceding accounting year, plus interest thereon
at the rate of 10 per cent per annum, plus development costs incurred in
the current accounting year and less contractor's cash surplus in the
current accounting year. The accounting year in which unrecovered
development costs become zero for the first time shall be the accounting
year in which the contractor's development costs with interest on the
unrecovered portion thereof are fully recovered by his cash surplus. The
contractor's cash surplus in any accounting year shall be his gross
proceeds less his operating costs and less his payments to the Authority
under subparagraph (c).
(ii) The second period of commercial production shall commence
in the accounting year following the termination of the first period of
commercial production and shall continue until the end of the contract.
(e) "Attributable net proceeds" means the product of the
contractor's net proceeds and the ratio of the development costs in the
mining sector to the contractor's development costs. If the contractor
engages in mining, transporting polymetallic nodules and production
primarily of three processed metals, namely, cobalt, copper and nickel,
the amount of attributable net proceeds shall not be less than 25 per cent
of the contractor's net proceeds. Subject to subparagraph (n), in all
other cases, including those where the contractor engages in mining,
transporting polymetallic nodules, and production primarily of four
processed metals, namely, cobalt, copper, manganese and nickel, the
Authority may, in its rules, regulations and procedures, prescribe
appropriate floors which shall bear the same relationship to each case as
the 25 per cent floor does to the three-metal case.
(f) "Contractor's net proceeds" means the contractor's gross
proceeds less his operating costs and less the recovery of his development
costs as set out in subparagraph (j).
(g) (i) If the contractor engages in mining, transporting
polymetallic nodules and production of processed metals, "contractor's
gross proceeds" means the gross revenues from the sale of the processed
metals and any other moneys deemed reasonably attributable to operations
under the contract in accordance with the financial rules, regulations and
procedures of the Authority.
(ii) In all cases other than those specified in subparagraphs
(g) (i) and (n) (iii), "contractor's gross proceeds" means the gross
revenues from the sale of the semi-processed metals from the polymetallic
nodules recovered from the area covered by the contract, and any other
monies deemed reasonably attributable to operations under the contract in
accordance with the financial rules, regulations and procedures of the
Authority.
(h) "Contractor's development costs" means:
(i) all expenditures incurred prior to the commencement of
commercial production which are directly related to the development of the
productive capacity of the area covered by the contract and the activities
related thereto for operations under the contract in all cases other than
that specified in subparagraph (n), in conformity with generally
recognised accounting principles, including, inter alia, costs of
machinery, equipment, ships, processing plant, construction, buildings,
land, roads, prospecting and exploration of the area covered by the
contract, research and development, interest, required leases, licences
and fees; and
(ii) expenditures similar to those set forth in (i) above
incurred subsequent to the commencement of commercial production and
necessary to carry out the plan of work, except those chargeable to
operating costs.
(i) The proceeds from the disposal of capital assets and the
market value of those capital assets which are no longer required for
operations under the contract and which are not sold shall be deducted
from the contractor's development costs during the relevant accounting
year. When these deductions exceed the contractor's development costs the
excess shall be added to the contractor's gross proceeds.
(j) The contractor's development costs incurred prior to the
commencement of commercial production referred to in subparagraphs (h) (i)
and (n) (iv) shall be recovered in 10 equal annual instalments from the
date of commencement of commercial production. The contractor's
development costs incurred subsequent to the commencement of commercial
production referred to in subparagraphs (h) (ii) and (n) (iv) shall be
recovered in 10 or fewer equal annual instalments so as to ensure their
complete recovery by the end of the contract.
(k) "Contractor's operating costs" means all expenditures incurred
after the commencement of commercial production in the operation of the
productive capacity of the area covered by the contract and the activities
related thereto for operations under the contract, in conformity with
generally recognised accounting principles, including, inter alia, the
annual fixed fee or the production charge, whichever is greater,
expenditures for wages, salaries, employee benefits, materials, services,
transporting, processing and marketing costs, interest, utilities,
preservation of the marine environment, overhead and administrative costs
specifically related to operations under the contract, and any net
operating losses carried forward or backward as specified herein. Net
operating losses may be carried forward for two consecutive years except
in the last two years of the contract in which case they may be carried
backward to the two preceding years.
(l) If the contractor engages in mining, transporting of
polymetallic nodules, and production of processed and semi-processed
metals, "development costs of the mining sector" means the portion of the
contractor's development costs which is directly related to the mining of
the resources of the area covered by the contract, in conformity with
generally recognised accounting principles, and the financial rules,
regulations and procedures of the Authority, including, inter alia,
application fee, annual fixed fee and, where applicable, costs of
prospecting and exploration of the area covered by the contract, and a
portion of research and development costs.
(m) "Return on investment" in any accounting year means the ratio
of attributable net proceeds in that year to the development costs of the
mining sector. For the purpose of computing this ratio the development
costs of the mining sector shall include expenditures on new or
replacement equipment in the mining sector less the original cost of the
equipment replaced.
(n) If the contractor engages in mining only:
(i) "attributable net proceeds" means the whole of the
contractor's net proceeds;
(ii) "contractor's net proceeds" shall be as defined in
subparagraph (f);
(iii) "contractor's gross proceeds" means the gross revenues
from the sale of the polymetallic nodules, and any other monies deemed
reasonably attributable to operations under the contract in accordance
with the financial rules, regulations and procedures of the Authority;
(iv) "contractor's development costs" means all expenditures
incurred prior to the commencement of commercial production as set forth
in subparagraph (h) (i), and all expenditures incurred subsequent to the
commencement of commercial production as set forth in subparagraph (h)
(ii), which are directly related to the mining of the resources of the
area covered by the contract, in conformity with generally recognised
accounting principles;
(v) "contractor's operating costs" means the contractor's
operating costs as in subparagraph (k) which are directly related to the
mining of the resources of the area covered by the contract in conformity
with generally recognised accounting principles;
(vi) "return on investment" in any accounting year means the
ratio of the contractor's net proceeds in that year to the contractor's
development costs. For the purpose of computing this ratio, the
contractor's development costs shall include expenditures on new or
replacement equipment less the original cost of the equipment replaced.
(o) The costs referred to in subparagraphs (h), (k), (l) and (n)
in respect of interest paid by the contractor shall be allowed to the
extent that, in all the circumstances, the Authority approves, pursuant to
Article 4, paragraph 1, of this Annex, the debt-equity ratio and the rates
of interest as reasonable, having regard to existing commercial practice.
(p) The costs referred to in this paragraph shall not be
interpreted as including payments of corporate income taxes or similar
charges levied by States in respect of the operations of the contractor.
7. (a) "Processed metals", referred to in paragraphs 5 and 6, means
the metals in the most basic form in which they are customarily traded on
international terminal markets. For this purpose, the Authority shall
specify, in its financial rules, regulations and procedures, the relevant
international terminal market. For the metals which are not traded on such
markets, "processed metals" means the metals in the most basic form in
which they are customarily traded in representative arm's length
transactions.
(b) If the Authority cannot otherwise determine the quantity of
the processed metals produced from the polymetallic nodules recovered from
the area covered by the contract referred to in paragraphs 5(b) and 6(b),
the quantity shall be determined on the basis of the metal content of the
nodules, processing recovery efficiency and other relevant factors, in
accordance with the rules, regulations and procedures of the Authority and
in conformity with generally recognised accounting principles.
8. If an international terminal market provides a representative
pricing mechanism for processed metals, polymetallic nodules and
semi-processed metals from the nodules, the average price on that market
shall be used. In all other cases, the Authority shall, after consulting
the contractor, determine a fair price for the said products in accordance
with paragraph 9.
9. (a) All costs, expenditures, proceeds and revenues and all
determinations of price and value referred to in this Article shall be the
result of free market or arm's length transactions. In the absence
thereof, they shall be determined by the Authority, after consulting the
contractor, as though they were the result of free market or arm's length
transactions, taking into account relevant transactions in other markets.
(b) In order to ensure compliance with and enforcement of the
provisions of this paragraph, the Authority shall be guided by the
principles adopted for, and the interpretation given to, arm's length
transactions by the Commission on Trans-national Corporations of the
United Nations, the Group of Experts on Tax Treaties between Developing
and Developed Countries and other international organisations, and shall,
in its rules, regulations and procedures specify uniform and
internationally acceptable accounting rules and procedures, and the means
of selection by the contractor of certified independent accountants
acceptable to the Authority for the purpose of carrying out auditing in
compliance with those rules, regulations and procedures.
10. The contractor shall make available to the accountants, in
accordance with the financial rules, regulations and procedures of the
Authority, such financial data as are required to determine compliance
with.
11. All costs, expenditures, proceeds and revenues, and all prices and
values referred to in this Article, shall be determined in accordance with
generally recognised accounting principles and the financial rules,
regulations and procedures of the Authority.
12. Payments to the Authority under paragraphs 5 and 6 shall be made
in freely usable currencies or currencies which are freely available and
effectively usable on the major foreign exchange markets or, at the
contractor's option, in the equivalents of processed metals at market
value. The market value shall be determined in accordance with paragraph 5
(b). The freely usable currencies and currencies which are freely
available and effectively usable on the major foreign exchange markets
shall be defined in the rules, regulations and procedures of the Authority
in accordance with prevailing international monetary practice.
13. All financial obligations of the contractor to the Authority, as
well as all his fees, costs, expenditures, proceeds and revenues referred
to in this Article, shall be adjusted by expressing them in constant terms
relative to a base year.
14. The Authority may, taking into account any recommendations of the
Economic Planning Commission and the Legal and Technical Commission, adopt
rules, regulations and procedures that provide for incentives, on a
uniform and non-discriminatory basis, to contractors to further the
objectives set out in paragraph 1.
15. In the event of a dispute between the Authority and a contractor
over the interpretation or application of the financial terms of a
contract, either party may submit the dispute to binding commercial
arbitration, unless both parties agree to settle the dispute by other
means, in accordance with Article 188, paragraph 2.
Article 14
Transfer of data
1. The operator shall transfer to the Authority, in accordance with
its rules, regulations and procedures and the terms and conditions of the
plan of work, at time intervals determined by the Authority all data which
are both necessary for and relevant to the effective exercise of the
powers and functions of the principal organs of the Authority in respect
of the area covered by the plan of work.
2. Transferred data in respect of the area covered by the plan of
work, deemed proprietary, may only be used for the purposes set forth in
this Article. Date necessary for the formulation by the Authority of
rules, regulations and procedures concerning protection of the marine
environment and safety, other than equipment design data, shall not be
deemed proprietary.
3. Data transferred to the Authority by prospectors, applicants for
contracts or contractors, deemed proprietary, shall not be disclosed by
the Authority to the Enterprise or to anyone external to the Authority,
but data on the reserved areas may be disclosed to the Enterprise. Such
data transferred by such persons to the Enterprise shall not be disclosed
by the Enterprise to the Authority or to anyone external to the Authority.
Article 15
Training programmes
The contractor shall draw up practical programmes for the training of
personnel of the Authority and developing States, including the
participation of such personnel in all activities in the Area which are
covered by the contract, in accordance with Article 144, paragraph 2.
Article 16
Exclusive right to explore and exploit
The Authority shall, pursuant to Part XI and its rules, regulations
and procedures, accord the operator the exclusive right to explore and
exploit the area covered by the plan of work in respect of a specified
category of resources and shall ensure that no other entity operates in
the same area for a different category of resources in a manner which
might interfere with the operations of the operator. The operator shall
have security of tenure in accordance with Article 153, paragraph 6.
Article 17
Rules, regulations and procedures of the Authority
1. The Authority shall adopt and uniformly apply rules, regulations
and procedures in accordance with Article 160, paragraph 2 (f) (ii), and
Article 162, paragraph 2 (o) (ii), for the exercise of its functions as
set forth in Part XI on, inter alia, the following matters:
(a) administrative procedures relating to prospecting, exploration
and exploitation in the Area;
(b) operations:
(i) size of area;
(ii) duration of operations;
(iii) performance requirements including assurances pursuant
to Article 4, paragraph 6 (c), of this Annex;
(iv) categories of resources;
(v) renunciation of areas;
(vi) progress reports;
(vii) submission of data;
(viii) inspection and supervision of operations;
(ix) prevention of interference with other activities in the
marine environment;
(x) transfer of rights and obligations by a contractor;
(xi) procedures for transfer of technology to developing
States in accordance with Article 144 and for their direct participation;
(xii) mining standards and practices, including those relating
to operational safety, conservation of the resources and the protection
of the marine environment;
(xiii) definition of commercial production;
(xiv) qualification standards for applicants;
(c) financial matters:
(i) establishment of uniform and non-discriminatory costing
and accounting rules and the method of selection of auditors;
(ii) apportionment of proceeds and operations;
(iii) the incentives referred to in Article 13 of this Annex;
(d) implementation of decisions taken pursuant to Article 151,
paragraph 10, and Article 164, paragraph 2(d).
2. Rules, regulations and procedures on the following items shall
fully reflect the objective criteria set out below:
(a) Size of areas:
The Authority shall determine the appropriate size of areas
for exploration which may be up to twice as large as those for
exploitation in order to permit intensive exploration operations. The size
of area shall be calculated to satisfy the requirements of Article 8 of
this Annex on reservation of areas as well as stated production
requirements consistent with Article 151 in accordance with the terms of
the contract taking into account the state of the art of technology then
available for sea-bed mining and the relevant physical characteristics of
the areas. Areas shall be neither smaller not larger than are necessary to
satisfy this objective.
(b) Duration of operations:
(i) Prospecting shall be without time-limit;
(ii) Exploration should be of sufficient duration to permit a
thorough survey of the specific area, the design and construction of
mining equipment for the area and the design and construction of small and
medium-size processing plants for the purpose of testing mining and
processing systems;
(iii) The duration of exploitation should be related to the
economic life of the mining project, taking into consideration such
factors as the depletion of the ore, the useful life of mining equipment
and processing facilities and commercial viability. Exploitation should be
of sufficient duration to permit commercial extraction of minerals of the
area and should include a reasonable time period for processing systems,
during which period commercial production should not be required. The
total duration of exploitation, however, should also be short enough to
give the Authority an opportunity to amend the terms and conditions of the
plan of work at the time it considers renewal in accordance with rules,
regulations and procedures which it has adopted subsequent to approving
the plan of work.
(c) Performance requirements:
The Authority shall require that during the exploration stage
periodic expenditures be made by the operator which are reasonably related
to the size of the area covered by the plan of work and the expenditures
which should be expected of a bona fide operator who intended to bring the
area into commercial production within the time imits established by the
Authority. The required expenditures should not be established at a level
which would discourage prospective operators with less costly technology
than is prevalently in use. The Authority shall establish a maximum time
interval, after the exploration stage is completed and the exploitation
stage begins, to achieve commercial production. To determine this
interval, the Authority should take into consideration that construction
of large-scale mining and processing systems cannot be initiated until
after the termination of the exploration stage and the commencement of the
exploitation stage. Accordingly, the interval to bring an area into
commercial production should take into account the time necessary for this
construction after the completion of the exploration stage and reasonable
allowance should be made for unavoidable delays in the construction
schedule. Once commercial production is achieved, the Authority shall
within reasonable limits and taking into consideration all relevant
factors require the operator to maintain commercial production throughout
the period of the plan of work.
(d) Categories of resources:
In determining the category of resources in respect of which a
plan of work may be approved, the Authority shall give emphasis inter alia
to the following characteristics:
(i) that certain resources require the use of similar mining
methods; and
(ii) that some resources can be developed simultaneously
without undue interference between operators developing different
resources in the same area.
Nothing in this subparagraph shall preclude the Authority from
approving a plan of work with respect to more than one category of
resources in the same area to the same applicant.
(e) Renunciation of areas:
The operator shall have the right at any time to renounce without
penalty the whole or part of his rights in the area covered by a plan of
work.
(f) Protection of the marine environment:
Rules, regulations and procedures shall be drawn up in order to
secure effective protection of the marine environment from harmful effects
directly resulting from activities in the Area or from shipboard
processing immediately above a mine site of minerals derived from that
mine site, taking into account the extent to which such harmful effects
may directly result from drilling, dredging, coring and excavation and
from disposal, dumping and discharge into the marine environment of
sediment, wastes or other affluence.
(g) Commercial production:
Commercial production shall be deemed to have begun if an operator
engages in sustained large-scale recovery operations which yield a
quantity of materials sufficient to indicate clearly that the principal
purpose is large-scale production rather than production intended for
information gathering, analysis or the testing of equipment or plant.
Article 18
Penalties
1. A contractor's rights under the contract may be suspended or
terminated only in the following cases:
(a) if, in spite of warnings by the Authority, the contractor has
conducted his activities in such a way as to result in serious, persistent
and wilful violations of the fundamental terms of the contract. Part XI
and the rules, regulations and procedures of the Authority; or
(b) if the contractor has failed to comply with a final binding
decision of the dispute settlement body applicable to him.
2. In the case of any violation of the contract not covered by
paragraph 1 (a), or in lieu of suspension or termination under paragraph
1(a), the Authority may impose upon the contractor monetary penalties
proportionate to the seriousness of the violation.
3. Except for emergency orders under Article 162, paragraph 2 (w), the
Authority may not execute a decision involving monetary penalties,
suspension or termination until the contractor has been accorded a
reasonable opportunity to exhaust the judicial remedies available to him
pursuant to Part XI, section 5.
Article 19
Revision of contract
1. When circumstances have arisen or are likely to arise which, in the
opinion of either party, would render the contract inequitable or make it
impracticable or impossible to achieve the objectives set out in the
contract or in Part XI, the parties shall enter into negotiations to
revise it accordingly.
2. Any contract entered into in accordance with Article 153, paragraph
3, may be revised only with the consent of the parties.
Article 20
Transfer of rights and obligations
The rights and obligations arising under a contract may be transferred
only with the consent of the Authority, and in accordance with its rules,
regulations and procedures. The Authority shall not unreasonably withhold
consent to the transfer if the proposed transferee is in all respects a
qualified applicant and assumes all of the obligations of the transferor
and if the transfer does not confer to the transferee a plan of work, the
approval of which would be forbidden by Article 6 paragraph 3 (c), of this
Annex.
Article 21
Applicable law
1. The contract shall be governed by the terms of the contract, the
rules, regulations and procedures of the Authority, Part XI and other
rules of international law not incompatible with this Convention.
2. Any final decision rendered by a court or tribunal having
jurisdiction under this Convention relating to the rights and obligations
of the Authority and of the contractor shall be enforceable in the
territory of each State Party.
3. No State Party may impose conditions on a contractor that are
inconsistent with Part XI. However, the application by a State Party to
contractors sponsored by it, or to ships flying its flag, of environmental
or other laws and regulations more stringent than those in the rules,
regulations and procedures of the Authority adopted pursuant to Article
17, paragraph 2 (f), of this Annex shall not be deemed inconsistent with
Part XI.
Article 22
Responsibility
The contractor shall have responsibility or liability for any damage
arising out of wrongful acts in the conduct of its operations, account
being taken of contributory acts or omissions by the Authority, Similarly,
the Authority shall have responsibility or liability for any damage
arising out of wrongful acts in the exercise of its powers and functions,
including violations under Article 168, paragraph 2, account being taken
of contributory acts or omissions by the contractor. Liability in every
case shall be for the actual amount of damage.
ANNEX IV. STATUTE OF THE ENTERPRISE
Article 1
Purposes
1. The Enterprise is the organ of the Authority which shall carry out
activities in the Area directly, pursuant to Article 153, paragraph 2 (a),
as well as the transporting, processing and marketing of minerals
recovered from the Area.
2. In carrying out its purposes and in the exercise of its functions,
the Enterprise shall act in accordance with this Convention and the rules,
regulations and procedures of the Authority.
3. In developing the resources of the Area pursuant to paragraph 1,
the Enterprise shall, subject to this Convention, operate in accordance
with sound commercial principles.
Article 2
Relationship to the Authority
1. Pursuant to Article 170, the Enterprise shall act in accordance
with the general policies of the Assembly and the directives of the
Council.
2. Subject to paragraph 1, the Enterprise shall enjoy autonomy in the
conduct of its operations.
3. Nothing in this Convention shall make the Enterprise liable for the
acts or obligations of the Authority, or make the Authority liable for the
acts or obligations of the Enterprise.
Article 3
Limitation of liability
Without prejudice to Article 11, paragraph 3, of this Annex, no member
of the Authority shall be liable by reason only of its membership for the
acts or obligations of the Enterprise.
Article 4
Structure
The Enterprise shall have a Governing Board, a Director-General and
the staff necessary for the exercise of its functions.
Article 5
Governing Board
The Governing Board shall be composed of 15 members elected by the
Assembly in accordance with Article 160, paragraph 2(c). In the election
of the members of the Board, due regard shall be paid to the principle of
equitable geographical distribution. In submitting nominations of
candidates for election to the Board, members of the Authority shall bear
in mind the need to nominate candidates of the highest standard of
competence, with qualifications in relevant fields, so as to ensure the
viability and success of the Enterprise.
2. Members of the Board shall be elected for four years and may be
re-elected; and due regard shall be paid to the principle of rotation of
membership.
3. Members of the Board shall continue in office until their
successors are elected. If the office of a member of the Board becomes
vacant, the Assembly shall, in accordance with Article 160, paragraph 2
(c), elect a new member for the remainder of his predecessor's term.
4. Members of the Board shall act in their personal capacity. In the
performance of their duties they shall not seek or receive instructions
from any government or from any other source. Each member of the Authority
shall respect the independent character of the members of the Board and
shall refrain from all attempts to influence any of them in the discharge
of their duties.
5. Each member of the Board shall receive remuneration to be paid out
of the funds of the Enterprise. The amount of remuneration shall be fixed
by the Assembly, upon the recommendation of the Council.
6. The Board shall normally function at the principal office of the
Enterprise and shall meet as often as the business of the Enterprise may
require.
7. Two thirds of the members of the Board shall constitute a quorum.
8. Each member of the Board shall have one vote. All matters before
the Board shall be decided by a majority of its members. If a member has a
conflict of interest on a matter before the Board he shall refrain from
voting on that matter.
9. Any member of the Authority may ask the Board for information in
respect of its operations which particularly affect that member. The Board
shall endeavour to provide such information.
Article 6
Powers and functions of the Governing Board
The Governing Board shall direct the operations of the Enterprise.
Subject to this Convention, the Governing Board shall exercise the powers
necessary to fulfil the purposes of the Enterprise, including powers:
(a) to elect a Chairman from among its members;
(b) to adopt its rules of procedure;
(c) to draw up and submit formal written plans of work to the
Council in accordance with Article 153, paragraph 3, and Article 162,
paragraph 2(j);
(d) to develop plans of work and programmes for carrying out the
activities specified in Article 170;
(e) to prepare and submit to the Council applications for
production authorisations in accordance with Article 151, paragraphs 2 to
7;
(f) to authorise negotiations concerning the acquisition of
technology, including those provided for in Annex III, Article 5,
paragraph 3 (a), (c) and (d), and to approve the results of those
negotiations;
(g) to establish terms and conditions, and to authorise
negotiations, concerning joint ventures and other forms of joint
arrangements referred to in Annex III, Articles 9 and 11, and to approve
the results of such negotiations;
(h) to recommend to the Assembly what portion of the net income of
the Enterprise should be retained as its reserves in accordance with
Article 160, paragraph 2 (f), and Article 10 of this Annex;
(i) to approve the annual budget of the Enterprise;
(j) to authorise the procurement of goods and services in
accordance with Article 12, paragraph 3, of this Annex;
(k) to submit an annual report to the Council in accordance with
Article 9 of this Annex;
(l) to submit to the Council for the approval of the Assembly
draft rules in respect of the organisation, management, appointment and
dismissal of the staff of the Enterprise and to adopt regulations to give
effect to such rules;
(m) to borrow funds and to furnish such collateral or other
security as it may determine in accordance with Article 11, paragraph 2,
of this Annex;
(n) to enter into any legal proceedings, agreements and
transactions and to take any other actions in accordance with Article 13
of this Annex;
(o) to delegate, subject to the approval of the Council, any
non-discretionary powers to the Director-General and to its committees.
Article 7
Director-General and staff of the Enterprise
1. The Assembly shall, upon the recommendation of the Council and the
nomination of the Governing Board, elect the Director-General of the
Enterprise who shall not be a member of the Board. The Director-General
shall hold office for a fixed term, not exceeding five years, and may be
re-elected for further terms.
2. The Director-General shall be the legal representative and chief
executive of the Enterprise and shall be directly responsible to the Board
for the conduct of the operations of the Enterprise. He shall be
responsible for the organisation, management, appointment and dismissal of
the staff of the Enterprise in accordance with the rules and regulations
referred to in Article 6, subparagraph (1), of this Annex. He shall
participate, without the right to vote, in the meetings of the Board and
may participate, without the right to vote, in the meetings of the
Assembly and the Council when these organs are dealing with matters
concerning the Enterprise.
3. The paramount consideration in the recruitment and employment of
the staff and in the determination of their conditions of service shall be
the necessity of securing the highest standards of efficiency and of
technical competence. Subject to this consideration, due regard shall be
paid to the importance of recruiting the staff on an equitable
geographical basis.
4. In the performance of their duties the Director-General and the
staff shall not seek or receive instructions from any government or from
any other source external to the Enterprise. They shall refrain from any
action which might reflect on their position as international officials of
the Enterprise responsible only to the Enterprise. Each State Party
undertakes to respect the exclusively international character of the
responsibilities of the Director-General and the staff and not to seek to
influence them in the discharge of their responsibilities.
5. The responsibilities set forth in Article 168, paragraph 2, are
equally applicable to the staff of the Enterprise.
Article 8
Location
The Enterprise shall have its principal office at the seat of the
Authority. The Enterprise may establish other offices and facilities in
the territory of any State Party with the consent of that State Party.
Article 9
Reports and financial statements
1. The Enterprise shall, not later than three months after the end of
each financial year, submit to the Council for its consideration an
annual report containing an audited statement of its accounts and shall
transmit to the Council at appropriate intervals a summary statement of
its financial position and a profit and loss statement showing the results
of its operations.
2. The Enterprise shall publish its annual report and such other
reports as it finds appropriate.
3. All reports and financial statements referred to in this Article
shall be distributed to the members of the Authority.
Article 10
Allocation of net income
1. Subject to paragraph 3, the Enterprise shall make payments to the
Authority under Annex III, Article 13, or their equivalent.
2. The Assembly shall, upon the recommendation of the Governing Board,
determine what portion of the net income of the Enterprise shall be
retained as reserves of the Enterprise. The remainder shall be transferred
to the Authority.
3. During an initial period required for the Enterprise to become
self-supporting, which shall not exceed 10 years from the commencement of
commercial production by it, the Assembly shall exempt the Enterprise from
the payments referred to in paragraph 1, and shall leave all of the net
income of the Enterprise in its reserves.
Article 11
Finances
1. The funds of the Enterprise shall include:
(a) amounts received from the Authority in accordance with Article
173, paragraph 2 (b);
(b) voluntary contributions made by States Parties for the purpose
of financing activities of the Enterprise;
(c) amounts borrowed by the Enterprise in accordance with
paragraphs 2 and 3;
(d) income of the Enterprise from its operations;
(e) other funds made available to the Enterprise to enable it to
commence operations as soon as possible and to carry out its functions.
2. (a) The Enterprise shall have the power to borrow funds and to
furnish such collateral or other security as it may determine. Before
making a public sale of its obligations in the financial markets or
currency of a State Party, the Enterprise shall obtain the approval of
that State Party. The total amount of borrowings shall be approved by the
Council upon the recommendation of the Governing Board.
(b) State Parties shall make every reasonable effort to support
applications by the Enterprise for loans on capital markets and from
international financial institutions.
3. (a) The Enterprise shall be provided with the funds necessary to
explore and exploit one mine site, and to transport, process and market
the minerals recovered therefrom and the nickel, copper, cobalt and
manganese obtained, and to meet its initial administrative expenses. The
amount of the said funds, and the criteria and factors for its adjustment,
shall be included by the Preparatory Commission in the draft rules,
regulations and procedures of the Authority.
(b) All States Parties shall make available to the Enterprise an
amount equivalent to one half of the funds referred to in subparagraph (a)
by way of long-term interest-free loans in accordance with the scale of
assessments for the United Nations regular budget in force at the time
when the assessments are made, adjusted to take into account the States
which are not members of the United Nations. Debts incurred by the
Enterprise in raising the other half of the funds shall be guaranteed by
all States Parties in accordance with the same scale.
(c) If the sum of the financial contributions of States Parties is
less than the funds to be provided to the Enterprise under subparagraph
(a), the Assembly shall, at its first session, consider the extent of the
shortfall and adopt by consensus measures for dealing with this shortfall,
taking into account the obligation of States Parties under subparagraphs
(a) and (b) and any recommendations of the Preparatory Commission.
(d) (i) Each State Party shall, within 60 days after the entry
into force of this Convention, or within 30 days after the deposit of its
instrument of ratification or accession, whichever is later, deposit with
the Enterprise irrevocable, non-negotiable, non-interest bearing
promissory notes in the amount of the share of such State Party of
interest-free loans pursuant to subparagraph (b).
(ii) The Board shall prepare, at the earliest practicable date
after this Convention enters into force, and thereafter at annual or other
appropriate intervals, a schedule of the magnitude and timing of its
requirements for the funding of its administrative expenses and for
activities carried out by the Enterprise in accordance with Article 170
and Article 12 of this Annex.
(iii) The States Parties shall, thereupon, be notified by the
Enterprise, through the Authority, of their respective shares of the funds
in accordance with paragraph 3 (b), required for such expenses. The
Enterprise shall encash such amounts of the promissory notes as may be
required to meet the expenditure referred to in the schedule with respect
to interest-free loans.
(iv) States Parties shall, upon receipt of the notification,
make available their respective shares of debt guarantees for the
Enterprise in accordance with subparagraph (b).
(e) (i) If the Enterprise so requests, State Parties may provide
debt guarantees in addition to those provided in accordance with the scale
referred to in subparagraph (b).
(ii) In lieu of debt guarantees, a State Party may make a
voluntary contribution to the Enterprise in an amount equivalent to that
portion of the debts which it would otherwise be liable to guarantee.
(f) Repayment of the interest-bearing loans shall have priority
over the repayment of the interest-free loans. Repayment of interest-free
loans shall be in accordance with a schedule adopted by the Assembly, upon
the recommendation of the Council and the advice of the Board. In the
exercise of this function the Board shall be guided by the relevant
provisions of the rules, regulations and procedures of the Authority,
which shall take into account the paramount importance of ensuring the
effective functioning of the Enterprise and, in particular, ensuring its
financial independence.
(g) Funds made available to the Enterprise shall be in freely
usable currencies or currencies which are freely available and effectively
usable in the major foreign exchange markets. These currencies shall be
defined in the rules, regulations and procedures of the Authority in
accordance with prevailing international monetary practice. Except as
provided in paragraph 2, no State Party shall maintain or impose
restrictions on the holding, use or exchange by the Enterprise of these
funds.
(h) "Debt guarantee" means a promise of a State Party to creditors
of the Enterprise to pay, pro rata in accordance with the appropriate
scale, the financial obligations of the Enterprise covered by the
guarantee following notice by the creditors to the State Party of a
default by the Enterprise. Procedures for the payment of those obligations
shall be in conformity with the rules, regulations and procedures of the
Authority.
4. The funds, assets and expenses of the Enterprise shall be kept
separate from those of the Authority. This Article shall not prevent the
Enterprise from making arrangements with the Authority regarding
facilities, personnel and services and arrangements for reimbursement of
administrative expenses paid by either on behalf of the other.
5. The records, books and accounts of the Enterprise, including its
annual financial statements, shall be audited annually by an independent
auditor appointed by the Council.
Article 12
Operations
1. The Enterprise shall propose to the Council projects for carrying
out activities in accordance with Article 170. Such proposals shall
include a formal written plan of work for activities in the Area in
accordance with Article 153, paragraph 3, and all such other information
and data as may be required from time to time for its appraisal by the
Legal and Technical Commission and approval by the Council.
2. Upon approval by the Council, the Enterprise shall execute the
project on the basis of the formal written plan of work referred to in
paragraph 1.
3. (a) If the Enterprise does not possess the goods and services
required for its operations it may procure them. For that purpose, it
shall issue invitations to tender and award contracts to bidders offering
the best combination of quality, price and delivery time.
(b) If there is more than one bid offering such a combination, the
contract shall be awarded in accordance with:
(i) the principle of non-discrimination on the basis of
political or other considerations not relevant to the carrying out of
operations with due diligence and efficiency;
(ii) guidelines approved by the Council with regard to the
preferences to be accorded to goods and services originating in developing
States, including the land-locked and geographically disadvantaged among
them.
(c) The Governing Board may adopt rules determining the special
circumstances in which the requirements of invitations to bid may, in the
best interests of the Enterprise, be dispensed with.
4. The Enterprise shall have title to all minerals and processed
substances produced by it.
5. The Enterprise shall sell its products on a non-discriminatory
basis. It shall not give non-commercial discounts.
6. Without prejudice to any general or special power conferred on the
Enterprise under any other provision of this Convention, the Enterprise
shall exercise such powers incidental to its business as shall be
necessary.
7. The Enterprise shall not interfere in the political affairs of any
State Party; nor shall it be influenced in its decisions by the political
character of the State Party concerned. Only commercial considerations
shall be relevant to its decisions, and that considerations shall be
weighed impartially in order to carry out the purposes specified in
Article 1 of this Annex.
Article 13
Legal status, privileges and immunities
1. To enable the Enterprise to exercise its functions, the status,
privileges and immunities set forth in this Article shall be accorded to
the Enterprise in the territories of States Parties. To give effect to
this principle the Enterprise and States Parties may, where necessary,
enter into special agreements.
2. The Enterprise shall have such legal capacity as is necessary for
the exercise of its functions and the fulfilment of its purposes and, in
particular, the capacity:
(a) to enter into contracts, joint arrangements or other
arrangements, including agreements with States and international
organisation;
(b) to acquire, lease, hold and dispose of immovable and movable
property;
(c) to be a party to legal proceedings.
3. (a) Actions may be brought against the Enterprise only in a court
of competent jurisdiction in the territory of a State Party in which the
Enterprise:
(i) has an office or facility;
(ii) has appointed an agent for the purpose of accepting
service or notice of process;
(iii) has entered into a contract for goods or services;
(iv) has issued securities; or
(v) is otherwise engaged in commercial activity.
(b) The property and assets of the Enterprise, wherever located
and by whomsoever held, shall be immune from all forms of seizure,
attachment or execution before the delivery of final judgement against the
Enterprise.
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