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DECISION OF ECONOMIC COURT OF COMMONWEALTH OF INDEPENDENT STATES

of December 13, 1995 No. 08/95

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the Chairman of Economic Court Dashuk L. A.,

judges of Economic Court of Abdrakhmanov S. S., Apostle D.D., Begaliyev M. A., Bekenova R. A., Kerimbayeva A. Sh., Makhmudova L. Sh., Miroshnik V. I., Simonyana G. V., Tolibova X., in case of Madudina T. I. secretary.,

with participation:

representative of Interstate bank Boorman M. A., General adviser of Economic Court Lazarenkov E. V., having considered case on request of Interstate bank on interpretation in proceeding in open court,

established:

Need of entering into the Charter of Bank of changes and amendments for the purpose of enhancement of the status of Interstate bank formed the basis for request of Interstate bank about interpretation. Meanwhile the legal mechanism of modification and amendments in the Charter of Interstate bank is determined by documents of the Commonwealth ambiguously.

The charter of Interstate bank is integral part of the Agreement on organization of the Interstate bank signed by heads of the State Parties of the Commonwealth on January 22, 1993. According to part 12 of article 8 of the Charter of Bank of amendment and changes to it can be made in the form of special protocols with the consent of all Contracting Parties.

On October 21, 1994 Council of heads of states of the Commonwealth the Decision on enhancement of activities of bodies of the Commonwealth of Independent States determined that the questions determining strategic direction of development of the Commonwealth in problems of political, economic and military cooperation are submitted for consideration of Council of heads of states. It is entrusted to Council of Heads of Government, Council of Foreign Ministers, Council of Ministers of Defense, Interstate economic Committee of Economic union and other bodies of the Commonwealth to make the final decisions on the questions entering their competence.

In development of this provision the Council of Heads of Government of the Commonwealth by the Legal decision of December 9, 1994 granted to Council of Interstate bank the right to make changes and additions to the Charter of Bank.

Due to stated the Interstate bank asks Economic Court to give interpretation on the following questions:

1. In what procedure changes and additions are made to the Charter of Bank?

2. Whether it is enough for introduction of amendments and amendments to the Charter of Interstate bank of decision making by Council of the bank?

3. How the Interstate bank acquires the rights of the legal entity? Whether observance of the procedure of registration of Interstate bank is required? If it is required, then in what procedure the Interstate bank is subject to registration?

Having heard the judge-speaker Tolibov H., the representative of Interstate bank Boorman M. A., having researched the case papers and other documents relating to being of request, having analyzed the conclusion of the General adviser of Economic Court Lazarenkov E. V., the Economic Court came to the following conclusions.

According to article 14 of the Agreement on organization of Interstate bank it becomes effective from the date of its signing, and for Contracting Parties which legislation requires ratification of such agreements, from the date of delivery of instruments of ratification to the state depositary.

Now the Agreement is ratified by all State Parties of the Agreement, except for Ukraine which provided note about application of terms of agreement before its ratification. All states ratifying the Agreement handed over instruments of ratification to the Government of the Republic of Belarus - depositary of the Agreement - by July, 1994, without having declared at the same time non-use of the Agreement concerning Ukraine.

Therefore, the Agreement became effective for all State Parties from the date of delivery of instruments of ratification to the state depositary, and the Agreement is applied to Ukraine temporarily until its ratification or the direction of the notification on the intention not to become the agreement party.

The provisions of part four of article 2 of the Agreement and part two of preamble of the Charter of Bank determining the Charter of Bank as integral part of the Agreement and also the procedure of their signing and ratification demonstrate that the text of the Agreement and the text of the Charter of Bank represent the international treaty consisting their two documents, one of which, the Agreement, regulates conditions and the general principles of creation of the interstate subject, and the second, the Charter of Bank - functions and procedure for activities of this subject, the procedure of creation, competence of its governing bodies and other questions.

Therefore, modification and amendments in the Charter of Bank means modification and amendments in component of the single document - Agreements.

Owing to article 12 of the Agreement it can be changed only with the consent of all Contracting Parties as which it is necessary to understand, proceeding from the Agreement preamble, the State Parties of the Agreement. Amendments and changes can be made to the Charter of Bank in the form of special protocols also with the consent of all Contracting Parties (part 12 of article 8 of the Charter of Bank).

According to regulations of the international public law (article 11 of the Vienna Convention on the right of international treaties of May 23, 1969) the consent of the state to obligation of the agreement for it can be expressed by agreement signature, exchange of the documents forming the agreement, its acceptance, approval, accession to it or any other method with which agreement parties agreed.

Article 14 of the Agreement provides, in fact, two methods of expression of consent of Contracting Parties - ratification and signing (for the State Parties which legislation does not require ratification of such agreements). Therefore, consent to modification and amendments in the Charter of Bank, as well as changes in the text of the Agreement, shall be expressed to one of these methods.

The agreement and the Charter of Bank do not provide procedure for modification and amendments in texts of these documents. Only in relation to form of the made changes and additions it is provided in the Charter of Bank that they are brought by special protocols.

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