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Agreement between the Government of Canada and the Multilateral Fund for the Implementation of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, Regulating Matters Resulting from the Establishment in Canada of the Multilateral Fund and its Organs [1998] CATSer 24 (23 November 1998)

E103123 - CTS 1998 No. 24

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE MULTILATERAL FUND FOR THE IMPLEMENTATION OF THE 1987 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, REGULATING MATTERS RESULTING FROM THE ESTABLISHMENT IN CANADA OF THE MULTILATERAL FUND AND ITS ORGANS

THE GOVERNMENT OF CANADA AND THE MULTILATERAL FUND FOR THE IMPLEMENTATION OF THE 1987 MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER;

NOTING the undertaking of the Government of Canada to ensure the availability of all the necessary facilities to enable the Multilateral Fund to perform its functions, including its scheduled programmes of work and any related activities;

DESIRING, therefore, to conclude an Agreement regulating matters resulting from the establishment in Canada of the Multilateral Fund for the Implementation of the 1987 Montreal Protocol and its organs;

HAVE AGREED as follows:

ARTICLE 1

Definitions

For the purposes of the present Agreement:

(a) “Montreal Protocol” means the 1987 Montreal Protocol on Substances that Deplete the ozone Layer;

(b) “Multilateral Fund” means the Multilateral Fund for the Implementation of the 1987 Montreal Protocol on Substance that Deplete the Ozone Layer;

(c) “Secretariat”, means the Secretariat of the Multilateral Fund;

(d) “Executive Committee” means the Executive Committee of the Multilateral Fund;

(e) “Office Premises” means the buildings or part of buildings occupied permanently or temporarily by any organ of the Multilateral Fund or by meetings convened in Canada by the Multilateral Fund;

(f) “Member States” means the States that are parties to the Montreal Protocol;

(g) “Representative of a Member State” means a person charged by a Member State with the duty of acting on its behalf;

(h) “Officials of the Secretariat” means United Nations officials assigned by the United Nations to service the Secretariat, irrespective of nationality, with the exception of those who are recruited locally and are assigned to hourly rates;

(i) “Expert” means a person, other than a United Nations official, or any other official of the Secretariat performing missions for the Multilateral Fund;

(j) “Agreement” means the Agreement between the United Nations and the Government of Canada concerning the Privileges, Immunities and other Facilities of United Nations Officials Servicing the Secretariat of the Multilateral Fund for the Implementation of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer; and

(k) “Convention” means the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946.

ARTICLE 2

Juridical Personality and Capacity

The Multilateral Fund shall possess juridical personality. It shall have the capacity:

(a) to contract;

(b) to acquire and dispose of immovable and movable property; and

(c) to institute legal proceedings.

ARTICLE 3

Inviolability and Protection

1. The Office Premises shall be inviolable. The competent Government authorities shall not enter the Office Premises to perform their official duties except with the consent of and under conditions agreed to by the Chief Officer of the Secretariat. These provisions shall not prevent the reasonable application of fire regulations.

2. The Government of Canada shall accord to the Office Premises the same protection as is given to diplomatic missions in Canada.

3. The archives and documents of the Multilateral Fund shall be inviolable at any time wherever located.

ARTICLE 4

Property, funds and assets

1. The Multilateral Fund, its property, funds and assets, including funds administered in furtherance of its constitutional functions, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity, it being understood that the waiver shall not extend to any measure of execution of legal actions.

2. The property, funds and assets of the Multilateral Fund, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.

3. The Multilateral Fund may hold funds, gold and currencies of any kind and operate accounts in any currency. It shall be free to transfer its funds, gold and currencies within Canada and from Canada to any other country and to convert any currency held by it into any other currency.

4. The Multilateral Fund shall prevent the office Premises from becoming refuge either for persons who are avoiding arrest or for persons who are endeavouring to avoid service of legal process.

ARTICLE 5

Exemption from Taxes and Duties

1. The Multilateral Fund, its property, funds and assets shall be:

(a) exempt from all direct taxes; it is understood, however, that the Multilateral Fund will not claim exemption from taxes which are no more than charges for public utility services;

(b) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the Multilateral Fund for its official use. It is understood, however, that articles imported under such exemption will not be sold in Canada except under conditions agreed with the Government of Canada;

(c) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of its publications.

2. While the Multilateral Fund will not, as a general rule, claim exemption from excise duties and from taxes on the sale of movable and immovable property which form part of the price to be paid, nevertheless when the Multilateral Fund is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable, the Government of Canada will make appropriate administrative arrangements for the remission or return of the amount of duty or tax.

ARTICLE 6

Communications Facilities

1. The Multilateral Fund shall enjoy in Canada for its official communications, treatment not less favourable than that accorded by the Government of Canada to any other Government including its diplomatic mission in matters of establishment and operation, priorities, tariffs, charges on mail and cablegrams and on teleprinter, facsimile, telephone and other communications, as well as rates for information to the press and radio. No censorship shall be applied to the official correspondence and other official communications of the Multilateral Fund.

2. The Multilateral Fund shall have the right to use codes and to dispatch and receive its correspondence by courier or in bags, which shall have the same immunities and privileges as diplomatic couriers and bags.

3. The facilities provided for in this Article may, to the extent necessary for efficient operation, be established and operated outside the Office Premises with the consent of the Government of Canada.

ARTICLE 7

Interruption of Public Services

In case of interruption or threatened interruption of public services, including communications and transportation, the Government of Canada will consider the needs of the Multilateral Fund as being of equal importance with the similar needs of its essential agencies and attempt to ensure that the work of the Multilateral Fund is not prejudiced.

ARTICLE 8

Access to Office Premises

1. The competent Canadian authorities shall not impose any impediments to transit to or from the Office Premises of representatives of Member States, officials of the Secretariat, experts or other persons invited thereto on official business.

2. Visas, where required, for persons referred to in paragraph 1, shall be issued by the Government of Canada free of charge and as promptly as possible.

3. The provisions of paragraphs 1 and 2 shall also apply to the spouses and members of the families forming part of the households of the persons referred to in those paragraphs.

4. Except as provided above and in the relevant provisions of the Agreement, the Government of Canada retains full control and authority over the entry of persons or property into the territory of Canada and the conditions under which persons may remain or reside there.

ARTICLE 9

Privileges and Immunities for the Representatives of Member States and Experts

1. Representatives of Member States shall, while exercising their functions and during their journeys to and from the place of meetings, enjoy the following privileges and immunities:

(a) immunity from personal arrest or detention and from seizure of personal baggage, and immunity from legal process of every kind in respect of words spoken or written and all acts performed in their capacity as representatives of Member States;

(b) inviolability of all papers and documents;

(c) the right to use codes and to receive and send papers or correspondence by courier or in sealed bags;

(d) exemption in respect of themselves and their spouses and members of their family forming part of their households from immigration restrictions, aliens registration or national service obligations;

(e) the same facilities in respect of currency or exchange restrictions as are accorded to diplomatic agents;

(f) the same exemption from examination of personal baggage as accorded to diplomatic agents;

(g) such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods imported, otherwise than as part of their personal baggage, or from excise duties or sales taxes.

2. Experts shall be entitled to the privileges, immunities and facilities set out in Article VI and Section 26 of Article VII of the Convention.

ARTICLE 10

Privileges and Immunities of the Officials of the Fund

Officials of the Multilateral Fund other than Officials of the United Nations shall enjoy in Canada the following privileges and immunities:

(a) immunity from legal process in respect of words spoken or written and any act performed by them in their official capacity;

(b) the right to deduct from the national income tax otherwise payable by them an amount determined in respect of the amount of the staff assessment levied by the Multilateral Fund in lieu of national income tax on salaries and emoluments paid by the Multilateral Fund to these officials;

(c) immunity for themselves, their spouses and relatives dependent on them, from immigration restrictions and alien registration procedures;

(d) immunity from national service obligations;

(e) the same repatriation facilities in time of international crisis for themselves, their spouses and relatives dependent on them, as are accorded to diplomatic agents;

(f) the same exchange facilities as accorded to officials of comparable rank forming part of diplomatic missions in Canada; and

(g) the right to import free of duty their furniture and effects, including motor vehicles, but excluding alcoholic beverages and tobacco products, at the time of first entry into Canada, or in the case of former residents of Canada returning to Canada to resume residence in Canada after having been residents of another country, the right, subject to the applicable legislation, to import free of duty their furniture and effects, including motor vehicles, at the time of their return to Canada.

ARTICLE 11

Waiver of Immunities

1. The privileges and immunities of officials of the Multilateral Fund other than officials of the United Nations and of experts are accorded not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the Multilateral Fund.

2. The Chairman of the Executive Committee not only has the right, but is under the duty to waive the immunity referred to in paragraph 1 in any case where in his or her opinion, the immunity would impede the course of justice and it could be waived without prejudice to the purpose for which the immunity is accorded.

ARTICLE 12

Respect for the Laws and Regulations of Canada

1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of Canada. They also have the duty not to interfere in the internal affairs of Canada.

2. The Multilateral Fund shall cooperate at all times with the appropriate authorities of Canada to facilitate the proper administration of justice, secure the observance of police regulations and avoid the occurrence of any abuse in connection with the privileges, immunities and facilities referred to in this Agreement.

ARTICLE 13

Notification Procedure

No persons shall be accepted as a representative of a Member State, an official of the Multilateral Fund or an Expert for purposes of Articles 9 and 10 unless and until his or her name and status have been duly notified to the Minister of Foreign Affairs of Canada.

ARTICLE 14

Settlement of Disputes

1. Any dispute concerning the interpretation or implementation of this Agreement that is not settled by negotiation or other agreed method of settlement shall, at the request of either Party, be referred to a tribunal of three arbitrators, one to be appointed by the Minister of Foreign Affairs of Canada, one to be appointed by the Chairman of the Executive Committee and the third to be appointed by the two arbitrators. If, within thirty days of the request for arbitration, either Party has not appointed an arbitrator or if, within fifteen days of the appointment of two arbitrators, the third arbitrator has not been appointed, either Party may request the President of the International Court of Justice to appoint an arbitrator.

2. The procedure of arbitration shall be determined by the arbitrators, and the expenses of the arbitration shall be borne by the Parties as assessed by the arbitrators. The arbitral award shall contain a statement of the reasons on which it is based and shall be accepted by the Parties as the final adjudication of the disputes.

3. The Multilateral Fund shall take the measures necessary for ensuring the proper settlement of:

(a) disputes arising out of contracts or other disputes of a private law character to which the Multilateral Fund is a party; and

(b) disputes involving any official of the Multilateral Fund other than an official of the United Nations who by reason of his or her official position enjoys immunity, if immunity has not been waived by the Chairman of the Executive Committee.

ARTICLE 15

Final Provisions

1. This Agreement shall enter into force upon signature.

2. This Agreement may be amended by mutual consent at any time at the request of either Party.

3. This Agreement shall continue in effect indefinitely.

4. This Agreement shall cease to be in force if the Multilateral Fund is relocated from the territory of Canada, except for such provisions as may be applicable in connection with the orderly termination of the operations of the Multilateral Fund in Canada and the disposition of its property therein.

IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Agreement.

DONE in duplicate, at Cairo on this 23rd day of November 1998, in the English and French languages, all texts being equally authentic.

Marie-Andrée Beauchemin

FOR THE GOVERNMENT OF CANADA

Marco A. Gonzalez-Salazar

FOR THE EXECUTIVE COMMITTEE OF THE MULTILATERAL FUND