The Iraq (United Nations) (Sequestration of Assets) (Dependent Territories) Order 1993
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UNITED NATIONS The Iraq (United Nations) (Sequestration of Assets) (Dependent Territories) Order 1993
At the Court at Buckingham Palace, the 12th day of May 1993 Present, The Queen's Most Excellent Majesty in Council
1.—(1) This Order may be cited as the Iraq (United Nations) (Sequestration of Assets) (Dependent Territories) Order 1993 and shall come into force on 24th May 1993. (2)
2.—(1) In this Order the following expressions have, except where otherwise expressly provided, the meanings respectively assigned to them, that is to say—
(2) Any reference in this Order to funds being held by any person extends to funds held in any capacity recognised by the law of the Territory and any reference to funds to which an Iraqi person is entitled extends to funds to which such person is entitled under the law of the Territory but shall not extend to funds in relation to which the entitlement of such person is in issue in legal proceedings in the Territory or in any other jurisdiction.
3. The provisions of Schedule 1 to this Order shall have effect in order to facilitate the obtaining, by or on behalf of the Governor, of evidence and information for the purpose of securing compliance with or detecting evasion of this Order or of giving effect to a request received from the Secretary General or the Government or competent authority of another country in accordance with paragraph 1(3) of Schedule 1 and in order to facilitate the obtaining, by or on behalf of the Governor, of evidence of the commission of an offence under this Order.
4.—(1) In the exercise of the powers to obtain evidence and information described in Schedule 1 to this Order the Governor may serve a notice in writing on a relevant institution requesting it to furnish to the Governor, within such period as may be specified therein, any information in its possession or control, and to produce to the Governor any document in its possession or control concerning any time on or after 6th August 1990—
(2) Without prejudice to the generality of the foregoing, a notice may request the furnishing of information or the production of documents concerning the balance on an account held with a relevant institution at any time on or after 6th August 1990, any transactions on the account on or after 6th August 1990 and the names of the drawers and holders of cheques in respect of monies credited to and debited from the account together with the names of the paying or collecting institutions, the numbers of the relevant accounts in other institutions to or from which payments have been credited or debited and the names of the persons by whom such accounts are held. (3) A notice may be given under paragraph (1) to relevant institutions individually or to particular classes of relevant institutions.
5. In the exercise of the powers to obtain evidence and information described in the Schedule to this Order the Governor may serve a notice in writing on any person requesting him to furnish to the Governor any information in his possession or control or to produce to the Governor any document in his possession or control within such period as may be specified therein—
6. Where the Governor considers that a relevant institution or other person holds funds to which an Iraqi person is entitled representing amounts which may be derived from or otherwise attributable to a relevant transaction he may—
7. Where the Governor considers that petroleum or petroleum products to which an Iraqi person is entitled is or are held in the Territory he may—
8.—(1) Where the Governor is satisfied that funds to which an Iraqi person is entitled held by a relevant institution represent amounts which are derived from or otherwise attributable to a relevant transaction he may, for the purpose of ascertaining whether such funds may be subject to or required to satisfy the rights of a third party at the time of the adoption of the resolution, publish a notice in the Gazette inviting any person who considers that the funds or any part thereof are subject to or required to satisfy such rights to make representations in writing to the Governor within such period of not less than21 days beginning on the day on which the notice is published as may be specified in the notice and stating that, if the person so requests, he shall be afforded an opportunity of being heard by the Governor. (2) No notice shall be given under paragraph (1) until the Governor has notified his decision under article 15(1) to the relevant institution or to any other person holding funds to which the decision applies and to any other person who made representations under article 6.
9.—(1) Where the Governor is satisfied that an Iraqi person is entitled to petroleum or petroleum products in the Territory he may, for the purpose of ascertaining whether such petroleum or petroleum products may be subject to or required to satisfy the rights of a third party at the time of the adoption of the resolution, publish a notice in the Gazette inviting any person who considers that the petroleum or petroleum products or any part thereof is or are subject to or required to satisfy his rights to make representations in writing to the Governor within such period of not less than 21 days beginning on the day on which the notice is published as may be specified in the notice and stating that, if the person so requests, he shall be afforded an opportunity of being heard by the Governor. (2) No notice shall be given under paragraph (1) until the Governor has notified his decision under article 16(1) to any person holding petroleum or petroleum products to which the decision applies and to any other person who has made representations under article 7.
10.—(1) For the purposes of this Order and without prejudice to the existence of third party rights in other circumstances, but subject as provided in paragraph (2)—
(2) Where the Governor has reason to believe or to suspect that, notwithstanding the application of one of the conditions described in paragraph (1), a person claiming to be the creditor of an Iraqi person does not or may not have rights as a third party to funds or to petroleum or to petroleum products to which that Iraqi person is entitled he shall examine all the relevant facts before reaching a conclusion on the existence of third party rights in the circumstances. (3) A person shall not be treated as having rights as a third party to funds or to petroleum or petroleum products unless—
11.—(1) The Governor shall give no less than 28 days' notice to any person who has requested a hearing following the giving of notice under article 6, article 7, article 8(1) or article 9(1) of the date, time and place fixed for the hearing unless such a person agrees to a lesser period of notice being given. (2) The Governor may vary the date, time and place fixed for the hearing and shall give such notice of any such variations as appears to him to be reasonable.
12.—(1) A person intending to appear at a hearing following the giving of notice under article 6, article 7, article 8(1) or article 9(1) shall send a copy of any documents to which he proposes to refer at the hearing and any proof of evidence which he proposes to read or have read by a witness at the hearing to the Governor not later than 14 days before the date fixed for the hearing. (2) The Governor shall send a copy of any document or proof of evidence received from a person intending to appear at a hearing to such other persons intending to appear at a hearing as in his view have an interest in the contents thereof.
13.—(1) A hearing following the giving of notice under article 6, article 7, article 8(1) or article 9(1) shall be conducted by the Governor who shall, subject as provided in this article, determine the procedure at the hearing. (2) A hearing shall be conducted in private. (3) The Governor may hold a single hearing following the giving of notice under article 6 or article 7 or, if relevant, under article 8(1) or article 9(1) in relation to all the issues arising in connection with particular funds or petroleum or petroleum products or may hold separate hearings at which specific persons or classes of person concerned with particular funds or petroleum or petroleum products or may hold separate hearings at which specific persons or classes of person concerned with particular funds or petroleum or petroleum products may appear. (4) At a hearing a person may appear on his own behalf or be represented by counsel, a solicitor or any other person, and may give or produce oral and written evidence and may cross-examine any other person appearing at the same hearing and any witnesses produced by any such person. (5) The Governor may take into account any document or any other written evidence received by him from any person intending to appear at a hearing before a hearing is held or during the hearing provided that he discloses it to such other persons intending to appear at or appearing at the hearing as in his view have an interest in the contents thereof. (6) The Governor may from time to time adjourn a hearing and, if the date, time and place of the adjourned hearing are announced at the hearing before the adjournment, no further notice shall be required.
14.—(1) Where a hearing has been held following the giving of notice under article 6, article 7, article 8(1) or article 9(1), the Governor may, if he thinks fit, cause a further hearing to be held to afford an opportunity for persons to be heard on such matters relating to the subject matter of the hearing as he may specify. (2) Where a further hearing is held under paragraph (1), the Governor shall send to the persons who made written representations or appeared at the previous hearing following the giving of notice as described in paragraph (1) a written statement of the specified matters. (3) Where a further hearing is held under paragraph (1) articles 11, 12 and 13 shall apply as if the references to a hearing were references to a further hearing.
15.—(1) The Governor shall notify any relevant institution or other person, and any other person who made representations or gave evidence to him following the giving of notice under article 6, whether he is satisfied that the institution or other person holds funds to which an Iraqi person is entitled representing amounts derived from or otherwise attributable to a relevant transaction and of the reasons for his decision. (2) Subject to paragraph (3), where the Governor is satisfied that a relevant institution or other person holds funds as described in paragraph (1), he may direct it or him to remit the funds or equivalent amounts to the escrow account within such period and in such manner as may be specified. (3) A direction by the Governor under paragraph (2) shall not extend to any funds to which an Iraqi person is, or where sub-paragraph (a) below applies was, entitled representing amounts which the Governor is satisfied were derived from or otherwise attributable to a relevant transaction and which he is satisfied—
(4) The Governor shall notify any person who made representations or gave evidence to him following the giving of notice under article 8(1) whether he is satisfied that funds to which an Iraqi person is entitled representing amounts derived from or otherwise attributable to a relevant transaction are subject to or required to satisfy any rights of a third party at the time of the adoption of the resolution and of the reasons for his decision. (5) A direction by the Governor under paragraph (2) may be given at the time of notification of his decision under paragraph (1) or at the time of or following notification of his decision under paragraph (4). (6) Where the Governor is satisfied that funds in an account held with a relevant institution to which an Iraqi person is entitled include amounts derived from or otherwise attributable to a relevant transaction, and that funds have been withdrawn from the account between the date of the relevant transaction and the date of the decision under paragraph (2) with permission granted by or on behalf of the Governor under an instrument applicable to the Territory listed in Schedule 3 to this Order, he may give a direction in relation to such a proportion of the funds remaining in the account as is equivalent to the proportion which the funds derived from or otherwise attributable to a relevant transaction bore to the total funds in the account immediately before the date of the withdrawal or, if more than one, the first withdrawal.
16.—(1) The Governor shall notify any person holding petroleum or petroleum products and any other person who made representations or gave evidence to him following the giving of notice under article 7 whether he is satisfied that an Iraqi person is entitled to it or them and of the reasons for his decision. (2) Subject to paragraph (3), where the Governor is satisfied that an Iraqi person is entitled to petroleum or petroleum products in the Territory he may direct the person holding it or them to sell the petroleum or petroleum products and to remit the proceeds of sale to the escrow account within such period and in such manner as the Governor may specify. (3) A direction by the Governor under paragraph (2) shall not extend to any petroleum or petroleum products in the Territory to which an Iraqi person is entitled which the Governor is satisfied was or were subject to or required to satisfy the rights of any third party at the time of adoption of the resolution. (4) The Governor shall notify any person who made representations or gave evidence to him following the giving of notice under article 9(1) whether he is satisfied that petroleum or petroleum products in the Territory to which an Iraqi person is entitled are subject to or required to satisfy any third party rights at the time of the adoption of the resolution and of his reasons for the decision. (5) A direction by the Governor under paragraph (2) may be given at the time of notification of his decision under paragraph (1) or at the time of or following notification of his decision under paragraph (4).
17.—(1) The Governor shall not be required to give reasons for his decisions under article 15(1) or (4) or article 16(1) or (4) to the extent that to do so would involve the disclosure of information obtained under Schedule I to this Order contrary to the provisions of the Schedule. (2) The Governor shall not be required to give reasons for his decisions under article 15(1) or article 16(1), to the extent that to do so would in his opinion be likely to cause damage to national security.
18.—(1) A relevant institution or any other person to whom a direction has been given under article 15(2) of article 16(2) shall, within 7 days of the expiry of the period specified for compliance or of the date of compliance, if earlier, notify the Governor in writing of having complied with the direction and shall provide him with such evidence of compliance as he may require within 7 days of being required to provide it. (2) Where a person has not complied with a direction under article 16(2) within the period specified for compliance, the Governor may direct that person to deliver the petroleum or petroleum products, to which the direction under article 16(2) related, tothe Governor at such time and in such manner as he may specify. (3) On delivery to him of the petroleum or petroleum products pursuant to a direction under paragraph (2) the Governor may sell it or them at such time and in such manner as he thinks fit and may remit the proceeds of sale to the escrow account. (4) A relevant institution or other person to whom a direction has been given under article 15(2) or article 16(2) may deduct from the amount transferred to the escrow account such sum in respect of its or his costs in complying with the direction as the Governor may before the date of the transfer certify as appropriate.
19.—(1) A person who holds an account at a relevant institution, and a relevant institution with which an account is held from which a transfer of an amount has been made pursuant to a direction of the Governor under article 15, shall not close the account pending any retransfer of the amount transferred or any part of it under article 20. (2) Any costs or expenses which may be incurrred consequent on the continuing operation of the account pursuant to paragraph (1) shall be the liability of the person by whom the account is held unless the relevant institution agrees otherwise with such person. (3) Notwithstanding the foregoing, a relevant institution may restrict access to an account described in paragraph (1) to any lawful extent. (4) Nothing in this Order shall affect any rights, liabilities or claims existing with respect to amounts transferred to the escrow account under article 15 or 16 prior to the date of their transfer.
20.—(1) If the Secretary General at any time pursuant to the resolution remits an amount representing the amount of any payment into the escrow account under article 15 or 16, together with any interest which may be determined to be applicable, the Governor shall take such measures as may be necessary to arrange for the amount to be transferred forthwith to any relevant institution by which, or to any person by whom, an amount was remitted to the escrow account to replace any such amount. (2) The Governor may apportion any amount remitted by the Secretary General as described in paragraph (1) which does not represent the total of any payments into the escrow account under article 15 or 16 as he considers appropriate between relevant institutions and other persons by whom amounts have been remitted. (3) The Governor may pay to any person described in paragraph (4) any amount remitted by the Secretary General as described in paragraph (1) which he considers appropriate to transfer to a relevant institution or other person by which or by whom an amount was remitted to the escrow account, where the relevant institution or other person—
(4) Where paragraph (3) applies, the Governor may pay any relevant amount to a person who appears to him to be—
(5) Where the Governor decides that there is no person of a description in paragraph (4) he shall deposit the relevant amount including any interest in an interest-bearing account in the Territory and may release that amount or any part of it together with any interest accruing from the date of deposit to any Iraqi person or any other person who establishes to the satisfaction of the Governor that he is entitled to receive it and the receipt of such a person shall be a valid discharge to the Governor for the amount paid. (6) Where any amounts are paid to a relevant institution or to any other person by the Secretary General pursuant to the resolution, or are so paid by the Governor under paragraph (1), (4) or (5), they shall be treated for all purposes as subject to any rights, liabilities and claims subsisting at the date of the transfer under article 15 or 16. (7) An amount transferred under this article to a relevant institution or to any peson shall not be subject to interest in respect of any period between the date of the transfer under article 15 or 16 and—
21.—(1) Any requirement imposed on a relevant institution or any other person under this Order shall have effect notwithstanding—
(2) No relevant institution or other person shall be liable in respect of any action taken pursuant to powers conferred by this Order or in compliance with duties imposed under it.
22.—(1) Any person who fails without reasonable excuse to comply with a direction given to him under article 15(2) or article 16(2) within the period and in the manner specified therein or who fails without reasonable excuse to comply with a direction given to him under article 18(2) at the time and in the manner specified shall be guilty of an offence and shall be liable—
(2) Any person guilty of an offence under paragraph 6(b) or (d) of Schedule 1 to this Order shall be liable—
(3) Any person who fails without reasonable excuse to notify the Governor of compliance with a direction under article 15(2) or article 16(2) or to provide the evidence of compliance required by him under article 18(1) shall be guilty of an offence and shall be liable—
(4) Any person guilty of an offence under paragraph 6(a) or (c) of Schedule 1 to this Order shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £5,000 or its equivalent or to both. (5) Any person who without reasonable excuse deducts from an amount transferred to the escrow account in compliance with a direction given to him under article 15(2) or article 16(2) any sum which has not been certified by the Governor under article 18(4) as being properly deductible shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £5,000 or its equivalent. (6) Any person who without reasonable excuse closes an account described in article 19(1) pending a transfer under article 20 of the amount remitted or any part of it shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £5,000 or its equivalent. (7) Where any body corporate is guilty of an offence under this Order, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (8) An indictable offence which is triable summarily under this Order, or a summary offence thereunder, may be so tried if an information is laid at any time within 3 years after the commission of the offence and within 12 months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to his knowledge. (9) Proceedings against any person for an offence under this Order may be taken before the appropriate court in the Territory having jurisdiction in the place where that person is for the time being. (10) No proceedings for an offence under this Order, other than for a summary offence, shall be instituted in the Territory except by or with the consent of the principal public officer of the Territory having responsibility for criminal prosecutions:
23. The Governor may to such extent, and subject to such restrictions and conditions as he may think proper, delegate or authorise the delegation of any of his powers under this Order (other than the power to give authority under Schedule 1 to this Order to apply for a search warrant) to any person, or class or description of persons, approved by him, and reference in this Order to the Governor shall be construed accordingly.
Notes: [2] OJ No. L379, 30.12.78, p.1; the relevant amending instrument is Council Regulation (EEC) No. 1971/89OJ No. L189, 4.7.89, p.1. back |
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