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Legal alert no. 58

On, 15 March 2018, Resolution n. 69/2018 was published in the Portuguese Official Gazette, approving the Host State Agreement between the Portuguese Republic and the Permanent Court of Arbitration signed in Lisbon, on 16 June 2017 (hereinafter, the “Agreement”), the text of which, in Portuguese and English, is attached to the referred Resolution.

As stated in the preamble of the Agreement now approved, the Permanent Court of Arbitration (PCA) was established by the 1889 Convention for the Pacific Settlement of International Disputes and it was subsequently reviewed by the 1907 Convention.

In turn, the Portuguese Republic is a Contracting Party to both referred Conventions, having been invited by the Secretary-General of the Permanent Court of Arbitration to become a host State for arbitration, mediation, conciliation and fact-finding commissions of inquiry administered by the TPA.

In this context, and since the Portuguese Republic has accepted the invitation, the Agreement now approved was entered into, from which we highlight:

1. The TPA shall have the legal capacity necessary to fulfill its purposes and objectives in the Portuguese territory;  

2. Portugal will make available to the PCA, on an as-needed basis and at no cost, office and meeting space, including notably telephonic, fax and internet means, as well as, secretarial services;  

3. The coordination and implementation of this Agreement is granted to the Portuguese Ministry of Foreign Affairs;

4. In turn, on the part of the PCA, the principal point of contact will be the respective Deputy Secretary-General;

5. The Agreement foresees several privileges and immunities of the PCA, its Officials and Adjudicators, of the Personnel of the Portuguese Republic and  the Participants, which shall mean any person taking part in a hearing, meeting or other activity in relation to PCA proceedings (e.g. lawyers, experts, witnesses, parties, agents, translators, etc.);

6. In relation to the privileges and immunities of the PCA, we highlight, among others, the following:  

  • The PCA, its property and assets enjoy immunity from every form of legal process;
  • The premises of the PCA shall be inviolable;
  • The property and assets of the PCA shall be immune from search, requisition, confiscation, expropriation and any other form of interference, regardless the nature of the procedure;
  • The archives of the PCA and all documents belonging to it or held by it shall be inviolable;
  • The TPA, its assets, income and other property shall be exempt from all direct taxes, duties and prohibitions and restrictions on imports and exports in respect of articles for its official use or of its publications; among others

7. In relation to the privileges and immunities of Officials and Adjudicators of the PCA, it is foreseen that they enjoy, mutatis mutandis, the same immunities and privileges as the Portuguese Republic accords to members of diplomatic missions of comparable rank pursuant to the 1961 Vienna Convention, differentiating the Officials and Adjudicators between those who are not nationals or permanent residents of the Portuguese Republic and those who are. In both cases, the Officials and Adjudicators enjoy:  

  • Immunity from personal arrest or detention and from seizure of their personal baggage;
  • Immunity from legal process of every kind in respect of words spoken or written and acts done by them in the course of the discharge of their duties, even after the person has ceased to exercise its functions;
  • Inviolability for all documents and papers;
  • Exemption from taxation on any fees, salaries and emoluments paid to them by the PCA;  

8.    In relation to the Personnel immunity of the Portuguese Republic, it is established that any person assigned by the Portuguese Republic to assist in the conduct of any dispute resolution or meeting administered, promoted or under the auspices of the PCA enjoys immunity from legal process in respect of words spoken or written and any act performed by them in their official capacity in connection with the work of PCA, which immunity shall continue in perpetuity;

9.    Finally, in relation to the Participants in the proceedings of PCA, similarly to the officials and adjudicators of the PCA, the privileges and immunities vary according to the Participant is or is not a national or permanent resident of the Portuguese Republic. In any case, the Participants enjoy, among others:

  • Immunity from personal arrest or detention or any other restriction on their liberty;
  • Immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in the course of their participation in PCA proceedings, which immunity shall continue in perpetuity;
  • Inviolability of all papers and documents and any materials related to their participation in PCA proceedings, which immunity shall continue in perpetuity;
  • Right to receive and send papers and documents in whatever form by courier or in sealed bags, for purposes of their communications.

10.  It should also be noted that although the Agreement foresee several privileges and immunities, it is also established rules to be applied in case of abuse of privileges and immunities.

11.Pursuant to the Agreement, the Portuguese Republic is also under a special security duty, undertaking to take all appropriate steps to protect PCA proceedings and meetings conducted in its territory;

12.Last of all, we highlight that, in accordance to the Agreement, in case of  dispute between the Portuguese Republic and the PCA that is not settled by negotiation, it shall be settled by final and binding arbitration in accordance to the Permanent Court of Arbitration Optional Rules for Arbitration Involving International Organizations and States, as in force on the date of signature of the Agreement, i.e. on 16 June 2017.

The Agreement will enter into force 30 days after the date of receipt by the Secretary-General of the notification of the Portuguese Republic, in writing through diplomatic channels, conveying the completion of its internal procedures required for that purpose.

To access the full text of the Agreement, please click here

 

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