to contracts and transactions Regulations, 2014

L.N. 282 of 2014

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

Enforcement of European Union Sanctions prohibiting the

satisfying of claims by the Haitian Authorities with regards

to contracts and transactions Regulations, 2014

IN exercise of the powers conferred by article 3(2) of the

National Interest (Enabling Powers) Act, the Prime Minister has

made the following regulations:-

The title of these regulations is the Enforcement of Citation.

European Union Sanctions prohibiting the satisfying of claims by the

Haitian Authorities with regards to contracts and transactions

Regulations, 2014.

(Regulation 3)

COUNCIL REGULATION (EC) No 1264/94 of 30 May 1994 prohibiting the satisfying of

claims by the Haitian authorities with regard to contracts and transactions the performance

of which was affected by the measures imposed

by or pursuant to United Nations Security Council resolutions 917 (1994),

841 (1993), 873 (1993) and 875 (1993)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular

Article 73g and Article 228a thereof,

Having regard to Council Decision 94/315/CFSP of 30 May 1994 concerning the

common position defined on the basis of Article J.2 of the Treaty on European Union

regarding the reduction of economic relations with Haiti,

Having regard to the proposal from the Commission,

Whereas under Council Regulation (EEC) No 1608/93 of 24 June 1993 introducing

an embargo concerning certain trade between the European Economic Community and

Haiti * and Council Regulation (EEC) No 3028/93 of 28 October 1993 repealing the

suspension of the embargo concerning certain trade between the European Economic

Community and Haiti and amending Regulation (EEC) No 1608/93 introducing this

embargo ** and Council Regulation (EC) No 1263/94 of introducing a discontinuation of

certain financial and economic relations with Haiti (4);

Whereas, as a consequence of these measures, economic operators in the

Community and third countries are exposed to the risk of claims by the authorities of Haiti

concerning contracts or transactions the performance of which was affected by United

Nations Security Council resolutions 917 (1994), 841 (1993), 873 (1993) and 875 (1993);

Whereas paragraph 11 of resolution 917 (1994) obliges all States to prevent the

satisfaction of such claims by the Haitian authorities;

Whereas it is therefore necessary to protect economic operators permanently against

such claims and to prevent the authorities of Haiti from obtaining compensation for the

negative effects of the embargo;

Whereas the Community considers that, in deciding whether to reduce of lift

measures taken against the authorities of Haiti, particular account must be taken of any

failure by these authorities to comply with paragraph 11 of resolution 917 (1994),

HAS ADOPTED THIS REGULATION

Article 1

* OJ No L 155, 26. 6. 1993, p. 2.

** OJ No L 270, 30. 10. 1993, p. 73.

B B 3738

For the purposes of this Regulation

1. 'contract or transaction' means any transaction of whatever form and whatever

the applicable law, whether comprising one or more contracts or similar obligations made

between the same or different parties; for this purpose 'contract' includes a bond, financial

guarantee and indemnity or credit whether legally independent or not and any related

provision arising under or in connection with the transaction;

2. 'claim' means any claim, whether asserted by legal proceedings or not, made

before or after the date of entry into force of this Regulation, under or in connection with a

contract or transaction, and in particular includes

(a)

a claim for performance of any obligation arising under in connection

with a contract or transaction;

(b)

a claim for extension or payment of a bond, financial guarantee or

indemnity of whatever form;

(c)

a claim for compensation in respect of a contract or transaction;

(d)

a counter-claim;

(e)

a claim for the recognition or enforcement, including by the procedure

of exequatur, of a judgment, an arbitration award or an equivalent decision,

wherever made or given;

3. 'measures decided on pursuant to United Nations Security Council resolution

917 (1994) and related resolutions' means measures of the United Nations Security

Council or measures introduced by the European Communities or any State, country or

international organization in conformity with, as required by or in connection with the

implementation of relevant decisions fo the United Nations Security Council, or any

action authorized by the United Nations Security Council, in respect of the discontinuation

of certain financial and economic relations with Haiti;

4. 'person or body in Haiti' means

(a)

the authorities in Haiti;

(b)

any Haitian national;

(c)

any body having its registered office or head-quartes in Haiti;

(d)

any body controlled, directly or indirectly, by one or more of the

abovementioned persons or bodies;

(e)

any person claiming through or for the benefit of any person or body

referred to in (a), (b), (c) or (d).

Without prejudice to Article 2, performance of a contract or transaction shall also be

regarded as having been affected by measures decided on pursuant to United Nations

Security Council resolution 917 (1994) and related resolutions where the existence or

content of the claim results directly or indirectly from those measures.

Article 2

1. It shall be prohibited to satisfy or to take any step to salisty a claim made by

(a)

a person or body in Haiti or acting through a person or body in Haiti;

(b)

any person or body acting, directly or indirectly, on behalf of or for the

benefit of one or more persons or bodies in Haiti;

(c)

any person or body taking advantage of a transfer or rights of,

otherwise claiming through or under, one or more persons or bodies in Haiti;

(d)

any other person or body referred to in paragraph 11 of United Nations

Security Council regulation 917 (1994);

(e)

any person or body making a claim arising from or in connection with

the payment of a bond or financial guarantee or indemnity to one or more of the

above-mentioned persons or bodies, under or in connection with a contract or

transaction the performance of which was affected, directly or indirectly, wholly or

in part, by the measures decided on pursuant to United Nations Security Council

resolution 917 (1994) and related resolutions.

2. The prohibition referred to in paragraph 1 shall apply within the Community

and to any national of a Member State and any body with is incorporated or constituted

under the law of a Member State.

Article 3

Without prejudice to the measures decided on pursuant to United Nations Security

Council resolution 917 (1994) and related resolutions, Article 2 shall not apply

(a)

to claims relating to contracts or transactions, with the exception of

any bond, financial guarantee or indemnity, in respect of which the persons or

bodies referred to in the said Article prove to a court in a Member State that the

claim was accepted by the parties prior to the adoption of the measures decided on

pursuant to United Nations Security Council resolution 917 (1994) and related

resolutions, and that those measures have had no effect on the existence or content

of the claim;

(b)

to claims for payment under an insurance contract in respect of an

event occurring prior to the adoption of the measures referred to in Article 2 or

under an insurance contract where such insurance is compulsory under the law of a

Member State;

(c)

to claims for payment of sums paid into an account payment from

which was blocked pursuant to the measures referred to in Article 2 provided that

such payment does not concern sums paid under bonds in respect of contracts

referred to in the said Article;

(d)

to claims relating to contracts of employment subject to the law of any

Member State;

(e)

to claims for payment for goods which the persons or bodies referred

to in Article 2 prove to a court in a Member State were exported prior to the

adoption of the measures decided on pursuant to United Nations Security Council

resolution 917 (1994) and related resolutions and that those measures have had no

effect on the existence or content of the claim;

(f)

to claims for sums which the persons or bodies referred to in Article 2

prove to a court in a Member State are due under any loan made prior to the

adoption of the measures decided on pursuant to United Nations Security Council

resolution 917 (1994) and related resolutions and that those measures have had no

effect on the existence or content of the claim,

provided that the claim includes no amount, by way of interest, charge or otherwise, to

compensate for the fact that performance was, as a result of those measures, not made in

accordance with the terms of the relevant contract or transaction.

Article 4

In any proceedings for the enforcement of a claim, the onus of proving that

satisfying the claim is not prohibited by Article 2 shall be on the person seeking the

enforcement of that claim.

Article 5

Each Member State shall determine the sanctions to be imposed where the

provisions of this Regulation are infringed.

Article 6

This Regulation shall enter into force on the day of its publication in the Official

Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member

States.

Done at Brussels, 30 May 1994.

For the Council

The President

G. MORAITIS

€0.54

In these regulations, unless the context otherwise requires - Interpretation.

"the Act" means the National Interest (Enabling Powers) Act;

"the Council Regulations" means the Council Regulations

referred to in regulation 3, any amendment thereto and any repealing

Regulation;

"Monitoring Board" means the Board established under S.L.365.08

regulation 2 of the Sanctions (Monitoring Board) Regulations;

"the Treaty" means the Treaty referred to in article 2 of the

European Union Act.

These regulations apply to European Council Regulation Text of

(EC) No. 1264 of 30 May 1994, prohibiting the satisfying of claims European

Council

by the Haitian Authorities with regard to contracts and transactions Regulation

No. 1264/1994

the performance of which was affected by the measures imposed by

or pursuant to United Nations Security Council Resolutions 917

(1994), 841 (1993), 873 (1993) and 875 (1993) (as subsequently

amended), which text is contained in the Schedule to these

regulations.

For the purposes of article 3 of the European Union Act, Applicability of

the Council Regulation is binding in its entirety on Malta and shall be the

Union Act.

part of the domestic law thereof under the conditions laid down in the Cap. 460.

Treaty.

(1)

Where any provision of any regulation made under Notification

the Act requires any person or any other entity to carry out the about

of assets.

identification of funds or assets belonging to or in the possession of

persons or entities as may be identified or identifiable under these

regulations, or the freezing or blocking of such funds or assets, such

person or entity shall without delay notify in writing any relevant

information it may have regarding persons, entities, assets or funds

affected by these regulations to the Monitoring Board, or to such

other public authority as may be prescribed by any other law.

(2) The disclosure of any information within the terms and

requirements of this regulation shall not constitute a breach of the

Professional Secrecy Act, where applicable, or of any other

confidentiality obligation arising from a contract or any other law.

(3) Whosoever fails to abide by the provisions of sub-

regulation (1) shall be guilty of an offence as is referred to in article 4

of the Criminal Code.

(1)

Where an offence against any provision of the

Council Regulation to which these regulations apply, or against these

regulations is committed by a body of persons, whether corporate or

unincorporate, every person who, at the time of the commission of the

offence, was a director, manager, secretary or other similar officer of

such body or association, or was purporting to act in any such

capacity, shall be guilty of that offence unless he proves that the

offence was committed without his knowledge and that he exercised

all due diligence to prevent the commission of the offence.

(2) Where the person found guilty of an offence under these

regulations is an officer of a body corporate as is referred to in article

121D of the Criminal Code or is a person having a power of

representation or having such authority as is referred to in that article

and the offence of which that person was found guilty was committed

for the benefit, in part or in whole, of that body corporate, the said

person shall for the purposes of these regulations be deemed to be

vested with the legal representation of the same body corporate which

shall be liable to the payment of a fine of not less than five thousand

euro (€5,000) and not more than one hundred and sixteen thousand

four hundred and sixty-eight euro (€116,468).

Any person who commits an offence against any provision

of the Council Regulation to which these regulations apply, or against

these regulations shall, on conviction, be liable to imprisonment for a

term from twelve months to five years or to a fine (multa) not

exceeding one hundred and sixteen thousand four hundred and sixty-

eight euro (€116,468), or to both such imprisonment and fine.

B B 3737