TNAG-1768-FCO40-2522-Hong-Kong-and-the-Multilateral-Investment-Guarantee-Agency-(-1988 — Page 145

My Hay Kay dost

2

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OVERSEAS DEVELOPMENT ADMINISTRATION Eland House Stag Place London SW1E 5DH

Telephone 01-213:

or Switchboard 01-213:3000

Hhr Fifort, Legal Advisers

Chan Erg Geneal Duties

Branch HK

R bunten Esq, APA(6) HK ✓ Chusi Eny, Track + Industry

Branch HK

Mr J Gibb

UK Delegation to IBRD/IMF HKC 102

Your reference

1

Washington

RECEIVED IN HUS

Our reference

- 6 JAN 1988

IDG8788/990/101/001A

Date

4 January 1988

DESK OFFICER

INDEX

PA

MIGA: DEPENDENT TERRITORIES

1. Article 66 of the Convention states: "This Convention shall apply to all territories under the jurisdiction of a member including the territories for whose international relations a member is responsible, except those which are excluded by such member by written notice to the depository of this Convention either at the time of ratification, acceptance or approval or subsequently."

2. It is probable that we shall want to have the Convention applying to the Channel Islands, the Isle of Man and to the Dependent Territories and, in the case of the Dependent Territories, we would want to have them regarded as developing member countries for the purposes of the Convention under Article 14. However, it is unlikely that we shall be able to say so at the time we ratify because some subordinte legislation will be needed after the enactment of our MIGA Bill for its application to the off-shore islands and the dependent Territories. As worded, Article 66 seems to give us the right to have such a territory included from the outset and subsequently excluded if we so wish; but does not give us the right to have a territory initially excluded and subsequently included. It may be that we would in fact wish to have some territories initially excluded until we have the necessary subordinate legislation in place and then subsequently include them. Our legal advisers have drawn our attention to a relevant precedent for excluding a Dependant Territory from the outset and subsequently withdrawing such an exclusion. It relates to the Convention on the Settlement of Яnvestment Disputes between States and Nationals of other States (the ICSID Convention). Article 70 of the CSID Convention is in terms of base similar to Article 66 of the MIGA Convention. On ratifying the CSID Convention, the United Kingdom notified the depository in accordance with Article 70 that it excluded from the application of the Convention certain specified territories, "pending written notification to the contrary". We think this notification was subsequently withdrawn in the case of the Channel Islands. We have in mind adopting a similar procedure when, annus mirabilis, we ratify the MIGA Convention. I would be grateful if you would check with IBRD staff whether they think this would pose any problems in accepting our ratification.

W T Birrell