| |
[p10]
The Court,
composed as above,
delivers the following Judgment:
By its Judgment of July 1st, 1952, the Court, adjudicating upon the
Preliminary Objection raised by the Government of the United Kingdom of
Great Britain and Northern Ireland to the Application of the Royal Hellenic
Government, found that it had jurisdiction to decide whether the United
Kingdom was under an obligation to submit to arbitration, in accordance with
the Declaration annexed to the Treaty of Commerce and Navigation of July
16th, 1926, between Great Britain and Greece/the difference as to the
validity of the Ambatielos claim, in so far as that claim was based on the
Treaty of Commerce and Navigation of November 10th, 1886, between the same
contracting parties. The Court, in its Judgment, reserved the fixing of
time-limits for the filing of a Reply by the Hellenic Government and a
Rejoinder by the United Kingdom Government for a subsequent Order.
This Order was made on July 18th, 1952. The Reply and Rejoinder were filed
within the prescribed time-limits, namely, October 3rd.. 1952, and January
6th, 1953, and on the latter date the issue defined by the Court in its
Judgment of July 1st, 1952, was ready for hearing.
The Court, which was presided over by the Vice-President, in accordance
with Article 13, paragraph 1, of the Rules, and which included on the Bench
Professor Jean Spiropoulos, appointed by the Hellenic Government to sit as
judge ad hoc, held public sittings on March 23rd, 24th, 25th, 26th, 27th,
28th and 30th, 1953, at which it heard, on behalf of the Hellenic
Government, M. Henri Rolin and Sir Frank Soskice, Counsel, and on behalf of
the United Kingdom Government, Mr. G. G. Fitzmaurice, Assistant Agent and
Counsel, Mr. J. E. S. Fawcett, Counsel, and Mr. W. V. J. Evans, Agent.
The Hellenic Government presented the following Submissions in the Reply:
"May it please the Court:
1. To hold that the Ambatielos claim, based upon the provisions of the
Treaty of 1886, does not prima facie appear to be unconnected with those
provisions.
2. As a consequence, to decide that the United Kingdom is under an
obligation to submit to arbitration, in accordance with the Declaration of
1926, the difference as to the validity of the Ambatielos claim.
3. To declare that the Court will assume the functions of the arbitral
tribunal in this case in the event of the Parties accepting its jurisdiction
in their final submissions. [p 13]
4. To fix time-limits for the filing by the Parties of the Reply and
Rejoinder upon the merits of the dispute."
The Government of the United Kingdom presented the following Submission in
the Rejoinder:
"The United Kingdom Government accordingly submits that the Court should
hold and declare that the United Kingdom is not under any obligation to
submit to arbitration, in accordance with the Declaration of 1926, the
difference between the Parties as to the validity of the Ambatielos claim."
During the hearings, the Hellenic Government confirmed the Submissions
contained in the Reply, and the Government of the United Kingdom formulated
the following Submissions:
"1. That the United Kingdom Government is under no obligation to submit to
arbitration, in accordance with the Declaration of 1926, the difference as
to the validity of the Ambatielos claim, unless this claim is based on the
Treaty of 1886.
2. That the Hellenic Government's contention that the Ambatielos claim is
based on the Treaty of 1886, within the meaning of the Declaration of 1926,
because it is a claim formulated on the basis of the Treaty of 1886 and not
obviously unrelated to that Treaty, is ill-founded.
3. That, even if the above Hellenic contention be correct in law, the Court
should still not order arbitration in respect of the Ambatielos claim,
because the Ambatielos claim is in fact obviously unrelated to the Treaty of
1886.
4. That the Ambatielos claim is not a claim based on the Treaty of 1886,
unless it is a claim the substantive foundation of which lies in the Treaty
of 1886.
5. That, having regard to (4) above, the Ambatielos claim is not a claim the
substantive foundation of which lies in the Treaty of 1886, for one or other
or all of the following reasons:
(a) the Ambatielos claim does not come within the scope of the Treaty;
(b) even if all the facts alleged by the Hellenic Government were true, no
violation of the Treaty would have occurred;
(c) local remedies were not exhausted;
(d) the Ambatielos claim—in so far as it has any validity at all, which the
United Kingdom Government denies—is based on the general principles of
international law and these principles are not incorporated in the Treaty of
1886.
6. That if, contrary to (4) and (5) above, the Ambatielos claim be held to
be based on the Treaty of 1886, the United Kingdom Government is not obliged
to submit to arbitration the difference as to the validity of the claim for
one or other or all of the following reasons: [p 14]
(a) non-exhaustion of local remedies;
(b) undue delay in preferring the claim on its present alleged basis;
(c) undue delay and abuse of the process of the Court in that, although
reference of the dispute to the compulsory jurisdiction of the Court has
been continuously possible since the 10th December 1926, no such reference
took place until the 9th April 1951.
Accordingly, the United Kingdom Government prays the Court
To adjudge and declare
That the United Kingdom Government is not obliged to submit to arbitration,
in accordance with the Declaration of 1926, the difference as to the
validity of the Ambatielos claim."
On April 9th, 1951, the Hellenic Government, in instituting proceedings
against the United Kingdom of Great Britain and Northern Ireland with regard
to a claim on behalf of Mr. Amba-tielos, asked the Court to adjudge and
declare : "that the arbitral procedure referred to in the Final Protocol of
the Treaty of 1886 must receive application in the present case". In the
subsequent proceedings the Hellenic Government requested the Court itself to
adjudicate upon the validity of the Ambatielos claim.
By its Judgment of July 1st, 1952, the Court held that it had no
jurisdiction to decide on the merits of the Ambatielos claim. It found at
the same time that it had jurisdiction to decide whether the United Kingdom
is under an obligation to submit to arbitration, in accordance with the
Declaration of 1926, the difference as to the validity of the Ambatielos
claim, in so far as this claim is based on the Treaty of 1886.
The question now before the Court is whether the United Kingdom Government
is under an obligation to accept arbitration of the difference between that
Government and the Hellenic Government concerning the validity of the
Ambatielos claim as presented by the Hellenic Government, in so far as this
claim is based on the Treaty of 1886.
This case, quite unlike the case of the Mavrommatis Palestine Concessions,
decided by the Permanent Court of International Justice in 1924, derives its
distinctive character from the fact that the Court is called upon to decide,
not its own jurisdiction over any particular dispute, but whether a dispute
should be referred to another tribunal for arbitration.
Both Greece and the United Kingdom have rested their case on the Declaration
of 1926 and the Judgment of the Court of July 1st, 1952.
The Declaration of 1926 reads as follows:
"It is well understood that the Treaty of Commerce and Navigation between
Great Britain and Greece of to-day's date does not prejudice claims on
behalf of private persons based on the provisions of the Anglo-Greek
Commercial Treaty of 1886, and that [p 15] any differences which may arise
between our two Governments as to the validity of such claims shall, at the
request of either Government, be referred to arbitration in accordance with
the provisions of the Protocol of November 10th, 1886, annexed to the said
Treaty."
The Protocol of 1886 referred to in the Declaration of 1926 contains, inter
alia, the following provision:
"Any controversies which may arise respecting the interpretation or the
execution of the present Treaty, or the consequences of any violation
thereof, shall be submitted, when the means of settling them directly by
amicable agreement are exhausted, to the decision of Commissions of
Arbitration, and the result of such arbitration shall be binding upon both
Governments."
The Declaration of 1926 was agreed upon for the purpose of safeguarding the
interests of the Parties with respect to claims on behalf of private persons
based on the Treaty of 1886, for which, on the termination of that Treaty,
and with it the Protocol, there would have been no remedy in the event of
the failure of the two Governments to arrive at amicable settlements by
direct means. While the controversies for which arbitration was provided in
the Protocol were relatively more general in scope, those provided for in
the Declaration are limited to claims on behalf of private persons based on
the Treaty of 1886. But in both cases the Parties were prompted by the same
motives and adopted the same method of arbitration.
The operative part of the Court's Judgment of July 1st, 1952, is in the
following terms:
"that it [the Court] is without jurisdiction to decide on the merits of the
Ambatielos claim;
that it has jurisdiction to decide whether the United Kingdom •is under an
obligation to submit to arbitration, in accordance with the Declaration of
1926, the difference as to the validity of the Ambatielos claim, in so far
as this claim is based on the Treaty of 1886".
By that decision, the Court laid down two rulings. The first, negative in
character, was that the merits of the Ambatielos claim are outside the
jurisdiction of the Court. The second ruling, positive in character,
assigned to the Court a limited jurisdiction in the Ambatielos case, namely,
to decide whether the United Kingdom is obliged to accept arbitration, as
requested by Greece. This limited jurisdiction of the Court is to be clearly
distinguished from the jurisdiction of the Commission of Arbitration. In
order to remove any possible doubt as to the respective spheres of action of
the Court and of the Commission of Arbitration, the Court stated in its
Judgment:
"The Court would decide whether there is a difference between the Parties
within the meaning of the Declaration of 1926. Should [p 16] the Court find
that there is such a difference, the Commission of Arbitration would decide
on the merits of the difference."
The Court must refrain from pronouncing final judgment upon any question of
fact or law falling within "the merits of the difference" or "the validity
of the claim". If the Court were to undertake to decide such questions, it
would encroach upon the jurisdiction of the Commission of Arbitration. The
task of the Court will have been completed when it has decided whether the
difference between Greece and the United Kingdom with regard to the validity
of the Ambatielos claim is or is not a difference as to the validity of a
claim on behalf of a private person based on the provisions of the Treaty of
1886 and whether, in consequence, there is an obligation binding the United
Kingdom to accept arbitration.
The words "in so far as this claim is based on the Treaty of 1886", used in
the operative part of the Court's Judgment of July 1st, 1952, must be
understood in the sense in which they were used. They are intended to
indicate the character which the Ambatielos claim must possess in order that
it may be the subject of arbitration in accordance with the Declaration of
1926. They do not mean that the Ambatielos claim must be found by the Court
to be validly based on the Treaty of 1886. If such a meaning had been
intended by the Court, it would not have decided that it was without
jurisdiction to pass on the merits of the claim.
The question whether there is a difference within the meaning of the
Declaration of 1926 depends upon whether the claim as formulated by the
Hellenic Government contains the elements required for arbitration as agreed
upon by the Parties in that Declaration.
The Hellenic Government states in its first submission that the Ambatielos
claim does not prima facie appear to be unconnected with the provisions of
the Treaty of 1886. The Court understands that this submission is intended
as a reason for the principal submission of the Hellenic Government that the
United Kingdom is under an obligation to accept arbitration. But the Court
considers that the reason stated in such a negative form is not sufficient.
The United Kingdom Government, on its part, contends that the Ambatielos
claim is not a claim the substantive foundation of which lies in the Treaty
of 1886. It maintains that, before the Court can decide upon arbitration, it
is necessary to determine, by way of interpreting the Declaration of 1926
and as a substantive issue, whether the claim is actually or genuinely based
on the Treaty of 1886, in the sense that the facts alleged by the Hellenic
Government, if true, would constitute a violation of that Treaty.
The Court cannot accept this contention. It would necessarily lead to
passing on a point which constitutes one of the principal elements of the
Ambatielos claim and consequently to the substitu-tion of the Court for the
Commission of Arbitration. The Court [p 17] cannot substitute itself for the
Commission of Arbitration. The question of violation or non-violation of the
Treaty of 1886 goes to the very roots of the Ambatielos claim. To decide
whether the facts alleged by the Hellenic Government, if true, would
constitute an actual violation of the Treaty of 1886 would be to pass upon
"the validity of the claim" and "the merits of the difference", which are
reserved exclusively for the Commission of Arbitration, and concerning which
this Court, according to its own earlier Judgment, is without jurisdiction.
It cannot be assumed that the Declaration of 1926 contemplates that the
verification of the allegations of fact of the Hellenic Government should be
the duty of the Commission of Arbitration, while the determination of the
question whether the facts alleged constitute a violation of the Treaty of
1886 should form the task of another tribunal. Such a division of "functions
would imply a division of the merits of the claim, which is authorized
neither by the Declaration nor by the previous Judgment of this Court.
The Declaration of 1926 was, as previously stated, agreed upon to ensure
that the method of arbitration provided for in the Protocol of 1886 should
be employed for the settlement of a limited category of differences
concerning the Treaty of 1886, namely, differences as to the validity of
claims on behalf of private persons based on that Treaty. At the time of the
"signature of the Declaration, it could hardly have entered the minds of the
Parties that before arbitration should be in order,- the Party requested to
accept that procedure might insist that the question whether a claim was
genuinely based on the Treaty of 1886 should first be examined and
definitively settled by that Party itself or by an organ other than the
Commission of Arbitration. It must have been their intention that the
genuineness of the treaty basis of any claim, if contested, should be
authoritatively decided by the Commission of Arbitration, together with any
other questions relating to the merits of the claim, just as, before 1926,
any question as to whether a certain contro-versy was concerned with the
interpretation or execution of the Treaty of 1886 would have been settled by
such a commission. If the Ambatielos claim had been referred to arbitration,
it would have been for the Commission to decide whether the claim had a
legal basis in respect of the Treaty of 1886. In the absence of any
manifestation of a common intention of the Parties to the contrary, the
Commission of Arbitration cannot be deprived of a part of its competence and
no other body can be invested with the authority to determine definitively
the validity of the treaty basis of the Ambatielos claim.
For the purpose of determining the obligation of the United Kingdom to
accept arbitration, the words "claims .... based on the provisions of the
.... Treaty of 1886" cannot be understood as meaning claims actually
supportable under that Treaty. In the context in which the words occur, they
can only mean claims [p 18] depending for support on the provisions of the
Treaty of 1886, so that the claims will eventually stand or fall according
as the provisions of the Treaty are construed in one way or another. The
fact that a claim purporting to be based on the Treaty may eventually be
found by the Commission of Arbitration to be unsupportable under the Treaty,
does not of itself remove the claim from the category of claims which, for
the purpose of arbitration, should be regarded as falling within the terms
of the Declaration of 1926.
In order to decide, in these proceedings, that the Hellenic Government's
claim on behalf of Mr. Ambatielos is "based on" the Treaty of 1886 within
the meaning of the Declaration of 1926, it is not necessary for the Court to
find—and indeed the Court is without jurisdiction to do so—that the Hellenic
Government's interpretation of the Treaty is the correct one. The Court must
determine, however, whether the arguments advanced by the Helenic Government
in respect of the treaty provisions on which the Ambatielos claim is said to
be based, are of a sufficiently plausible character to warrant a conclusion
that the claim is based on the Treaty. It is not enough for the claimant
Government to establish a remote connection between the facts of the claim
and the Treaty of 1886. On the other hand, it is not necessary for that
Government to show, for present purposes, that an alleged treaty violation
has an unassailable legal basis. The validity of the argu-ments presented by
the Hellenic Government, as well as the validity of those presented by the
United Kingdom Government, would be determined by the Commission of
Arbitration in passing upon the merits of the difference. If the
interpretation given by the Hellenic Government to any of the provisions
relied upon appears to be one of the possible interpretations that may be
placed upon it, though not necessarily the correct one, then the Ambatielos
claim must be considered, for the purposes of the present proceedings, to
be a claim based on the Treaty of 1886.
In other words, if it is made to appear that the Hellenic Government is
relying upon an arguable construction of the Treaty, that is to say, a
construction which can be defended, whether or not it ultimately prevails,
then there are reasonable grounds for concluding that its claim is based on
the Treaty. This view seems to have been in the mind of Counsel for the
United Kingdom when he said:
“…we are not, of course, suggesting that the Court must decide whether the
claim is valid or not, that is to say, well-founded on the Treaty, for that
would be a matter of the ultimate merits.... We do not suggest that the
Court must consider whether the claim is 'bien fondee', but what we say is
that it must at least consider whether the claim is 'fondee'....”
[p 19]
The Court will use its power of appreciation to resolve the legal problem
presented by the Parties, namely, whether the difference between them is of
such a character as to come under the Declaration of 1926 ; but it cannot
carry its power of appreciation to the extent of deciding the merits of the
difference. In the opinion of the Court, this course of action would be in
consonance with the intention of the Parties that all differences which
might arise concerning the validity of claims on behalf of private persons
based on the Anglo-Greek Commercial Treaty of 1886 should be referred to
arbitration.
The Court is not departing from the principle, which is well-established in
international law and accepted by its own jurisprudence as well as that of
the Permanent Court of International Justice, to the effect that a State may
not be compelled to submit its disputes to arbitration without its consent;
but it observes that, in this case, the question is whether the consent
given by the Parties in signing the Declaration of 1926 to arbitrate a
certain category of disputes, does or does not extend to the Ambatielos
claim.
***
The articles of the Treaty of 1886 invoked by the Hellenic Government are
as follows:
"Article I
There shall be between the dominions and possessions of the two High
Contracting Parties reciprocal freedom of commerce and navigation. The
subjects of each of the two Parties shall have liberty freely to come, with
their ships and cargoes<( to all places, ports and rivers in the dominions
and possessions of the other to which native subjects generally are or may
be permitted to come, and shall enjoy respectively the same rights,
privileges, liberties, favours, immunities and exemptions in matters of
commerce and navigation which are or may be enjoyed by native subjects
without having to pay any tax or impost greater than those paid by the same,
and they shall be subject to the laws and regulations in force.
Article X
The Contracting Parties agree that, in all matters relating to commerce and
navigation, any privilege, favour or immunity whatever which either
Contracting Party has actually granted or may hereafter grant to the
subjects or citizens of any other State shall be extended immediately and
unconditionally to the subjects or citizens of the other Contracting Party;
it being their intention that the trade and navigation of each country shall
be placed, in all respects, by the other on the footing of the most favoured
nation. [p 20]
Article XII
The subjects of each of the Contracting Parties who shall conform themselves
to the laws of the country:
1. Shall have full liberty, with their families, to enter, travel, or reside
in any part of the dominions and possessions of the other Contracting Party.
2. They shall be permitted to hire or possess the houses, manufactories,
warehouses, shops, and premises, which may be necessary for them.
3. They may carry on their commerce either in person or by any agents whom
they may think fit to employ.
4. They shall not be subject in respect of their persons or property, or in
respect of passports, nor in respect of their commerce or industry, to any
taxes, whether general or local, or to imposts or obligations of any kind
whatever other or greater than those which are or may be imposed upon native
subjects.
Article XV
The dwellings, manufactories, warehouses and shops of the subjects of each
of the Contracting Parties in the dominions and possessions of the other,
and all premises appertaining thereto destined for purposes of residence or
commerce shall be respected.
It shall not be allowable to proceed to make a search of, or a domiciliary
visit to, such dwellings and premises, or to examine and inspect books,
papers, or accounts, except under the conditions and with the form
prescribed by the laws for subjects of the country.
The subjects of each of the two Contracting Parties in the dominions and
possessions of the other shall have free access to the Courts of Justice for
the prosecution and defence of their rights, without other conditions,
restrictions, or taxes beyond those imposed on native subjects; and shall,
like them, be at liberty to employ, in all causes, their advocates,
attorneys or agents, from among the persons admitted to the exercise of
those professions according to the laws of the country."
The Hellenic Government, relying upon the most-favoured-nation clause
contained in Article X, invokes Article 16 of the Treaty of Peace and
Commerce between the United Kingdom and Denmark of February 13th, 1660-1661,
which the Hellenic Government has quoted in English as follows:
"Each Party shall in all causes and controversies now depending, or
hereafter to commence, cause justice and right to be speedily administered
to the subjects and people of the other Party, according to the laws and
statutes of each country without tedious and unnecessary delays and
charges."
The Hellenic Government has invoked similar provisions of other treaties
concluded between the United Kingdom and third States, that is to say: [p
21]
—Article 24 of the Treaty of Peace and Commerce with Denmark of July nth,
1670, providing that the Parties "shall cause justice and equity to be
administered to the subjects and people of each other";
—Article 8 of the Treaties of Peace and Commerce with Sweden of April 11th,
1654, and of October 21st, 1661, providing that "In case the people and
subjects on either part .... or those who act on their behalf before any
Court of Judicature for the recovery of their debts, or for other lawful
occasions, shall stand in need of the Magistrate's help, the same shall be
readily, and according to the equity of their cause, in friendly manner
granted them....";
—Article 10 of the Treaty of Commerce with Bolivia, of August 1st, 1911,
reserving the right to exercise diplomatic intervention in any case in which
there may be evidence of "denial of justice" or "violation of the principles
of international law".
The United Kingdom Government, in the first place, questions the correctness
of the English translations from the original Latin of certain of these
provisions; and in the second place, it contends that Article X of the
Treaty of 1886, dealing with matters of commerce and navigation, cannot be
invoked to claim the benefits of provisions in other treaties concerning
judicial proceedings, which, in the Treaty of 1886, form the subject of a
separate article. The United Kingdom also advances a number of other
arguments designed to show that the facts alleged by the Hellenic
Government, if true, would amount to a denial of justice, and that an
allegation of denial of justice must be based on general principles of
international law and cannot be premised on Article X of the Treaty of 1886
dealing with commerce and navigation.
On the other hand, the Hellenic Government has contended that a litigation
arising out of a commercial contract may be considered as a matter relating
to commerce and thus falling within the term "all matters relating to
commerce and navigation" to which the most-favoured-nation clause in Article
X of the Treaty of 1886 applies. The undertaking by the United Kingdom
vis-à-vis third States that the courts shall administer "justice and right"
or "justice and equity" in any litigation is regarded by the Hellenic
Government as a "favour" which inures to the benefit of Greek nationals
under the most-favoured-nation clause of Article X.
With regard to the Anglo-Bolivian Treaty of 1911, the Hellenic Government
argues that it imposes upon the L<nited Kingdom, as well as upon Bolivia,
the obligation to apply the principles of international law in the
treatment of the nationals of the other contracting party. [p 22]
Article XV, paragraph 3, of the Treaty of 1886 provides for "free access to
the Courts of Justice". The United Kingdom Government insists on a limited
interpretation of the term "free access" and maintains that Mr. Ambatielos
must be considered as having been fully accorded this right when he was
permitted to appear in the English courts for the prosecution and defence of
his rights on an equal footing with British subjects.
The Hellenic Government, on the other hand, relies on a different
interpretation of the term "free access" to the Courts of Justice and argues
that the right of "free access" should be understood to include the
prosecution of rights by the foreign litigant in the local courts free from
restrictions imposed by the executive authorities. According to the
contention of the Hellenic Government, Mr. Ambatielos did not enjoy "free
access" to the courts, because of the "withholding" by the executive branch
of the United Kingdom Government of evidence considered to be vital to his
case.
Having regard to the contentions of the Parties with respect to the scope
and effect of the most-favoured-nation clause in Article X of the Treaty of.
1886, as well as the divergence of views concerning the meaning of the
expression "free access to the Courts of Justice" contained in Article XV,
paragraph 3, of that Treaty; and bearing in mind especially the
interpretations of these provisions contended for by the Hellenic
Government, the Court must conclude that this is a case in which the
Hellenic Government is presenting a claim on behalf of a private person
"based on the provisions of the Anglo-Grëek Commercial Treaty of 1886", and
that the difference between the Parties is the kind of difference which,
according to the Declaration of 1926, should be submitted to arbitration.
Accordingly, the Court must hold that the United Kingdom is under an
obligation to co-operate with Greece in constituting a Commission of
Arbitration, in accordance with the Protocol of 1886, as provided in the
Declaration of 1926.
***
There remain for consideration contentions advanced by the United Kingdom
Government that, even assuming the facts alleged by the Hellenic Government
to be true, the United Kingdom still is not obliged to submit to arbitration
the difference as to the validity of the Ambatielos claim, for the following
additional reasons:
(1) That Mr. Ambatielos did not exhaust local remedies;
(2) That there was undue delay in preferring the claim on its present
alleged basis;
(3) That there were undue delay and abuse of the process of the Court in
that, although reference of the dispute to the [p 23] compulsory
jurisdiction of the Court has been continuously possible since the 10th
December 1926, no such reference took place until the 9th April 1951.
With regard to the first two arguments, the Court need only observe that
they are arguments in defence directed to the admissibility of the
Ambatielos claim and are not in any way related to the question whether the
claim is based on the Treaty of 1886. The points raised in these arguments
are entirely outside the terms of the Declaration of 1926, which it is the
Court's present task to interpret. For these reasons, the Court expresses no
view concerning the validity or the legal effect of these arguments.
These considerations also apply to the point of delay contained in the third
argument. As regards the point of abuse of the process of the Court raised
in that argument, the Court does not consider that the Hellenic Government
did anything improper in instituting proceedings against the United Kingdom
on April 9th, 1951, in conformity with the relevant provisions of the
Statute and Rules of Court.
The Court does not consider it necessary to pass on Submissions 3 and 4 of
the Hellenic Government.
For these reasons,
The Court,
by ten votes to four,
finds that the United Kingdom is under an obligation to submit to
arbitration, in accordance with the Declaration of 1926, the difference as
to the validity, under the Treaty of 1886, of the Amba-tielos claim.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this nineteenth day of May, one thousand nine
hundred and fifty-three, in three copies, one of which will be placed in the
archives of the Court and the others will be transmitted to the Royal
Hellenic Government and to the Government of the United Kingdom of Great
Britain and Northern Ireland, respectively.
(Signed) J. G. Guerrero,
Vice-President.
(Signed) E. Hambro,
Registrar.
[p 24]
Sir Arnold McNair, President, Judges Basdevant, Klaestad and Read, availing
themselves of the right conferred on them by Article 57 of the Statute,
append to the Judgment the joint statement of their dissenting opinion.
(Initialled) J. G. G.
(Initialled) E. H.
[p 25]
DISSENTING OPINION BY SIR ARNOLD McNAIR, PRESIDENT, AND JUDGES BASDEVANT,
KLAESTAD AND READ
To our great regret we are unable to concur in the Judgment of the Court. We
must therefore indicate the way in which we understand the task of the Court
in the present case, the meaning of the question submitted to it, the answer
which should be given, and the grounds on which we base our opinion.
***
By the Judgment of July ist, 1952, in which the Court defined the limits of
its jurisdiction in the Ambatielos case, it is now called upon to "decide",
in accordance with the terms of that Judgment, "whether the United Kingdom
is under an obligation to submit to arbitration, in accordance with the
Declaration of 1926, the difference as to the validity of the Ambatielos
claim, in so far as this claim is based on the Treaty of 1886". The Court
must say whether or not there is an obligation, as so defined, binding upon
the United Kingdom. In their final Submissions the Parties clearly
recognized that this was the object of the Judgment now to be given by the
Court. The Court, having found that it has jurisdiction for this purpose, is
called upon to adjudicate upon the merits of the difference between the
Parties as to the existence or non-existence of this obligation. As to the
difference between the same Parties with regard to the validity of the
Ambatielos claim, the Court has declared, in the Judgment mentioned above,
that it has no jurisdiction to decide upon the merits of that difference.
***
Having been required by the Application of the Hellenic Government to
decide whether the United Kingdom is under an obligation to submit to
arbitration, in accordance with the Declaration of 1926, the difference as
to the validity of the Ambatielos claim, the Court, "whose function is to
decide in accordance with international law such disputes as are submitted
to it" (Article 38, paragraph 1, of the Statute), must for this purpose
examine and take into account all legal factors which it deems relevant.
There is no rule of law which limits this examination. The Court indeed
lacks jurisdiction to adjudicate upon the validity of the Ambatielos claim;
provided, however, that it confines itself to stating whether or not there
exists an obligation to submit the difference as to the validity of that
claim to arbitration, it will not trench upon the [p 26] question of
validity itself. If it be found that there is any point of law which is
relevant to the solution of both these differences— which were clearly
distinguished by the Judgment of July ist, 1952—this cannot constitute a
valid ground for the Court's refraining from examining that point and
forming an opinion as to its importance for the purpose of determining
whether an obligation to have recourse to arbitration exists in this case.
The Court is called upon to say whether or not there exists an obligation to
set up a Commission of Arbitration whose task it would then be to decide as
to the validity of the Ambatielos claim. An affirmative reply to this
question can be given only if the existence of this obligation can be
established on a basis of law. Unless this can be established, it does not
appear to us to be possible to give an affirmative answer to the question
which the Court is required to decide. It is therefore necessary to examine
all the factors susceptible of affecting the answer to be given to this
question. It is only after such an examination, and in the light of what
may emerge from it, that it will be possible to decide whether a Commission
of Arbitration should be set up. It was in this way that the Court
considered that the respective functions should be divided in a case—the
Interpretation of Peace Treaties—which, apart from the fact that the Court
had there before it a request for an advisory opinion, had much in common
with the present case. The Court there pointed out that it had to give an
opinion on the applicability to certain disputes of the procedure for
settlement by means of Commissions instituted by the Peace Treaties, and not
on the merits of these disputes. The same is true in the present case. The
Court in that case itself considered the question whether the disputes which
it found to exist "were among those for which" the Peace Treaties had
provided a procedure for settlement. The Court found that the disputes in
question related to the performance or non-performance of obligations
arising from certain articles of the Peace Treaties. The Court made this
finding without being hampered in any way by the jurisdiction of the
Commissions charged with the duty of deciding as to the validity of the
allegations forming the subject-matter of the disputes. Having made this
finding, it deduced therefrom an obligation on the States concerned to
co-operate in the procedure for settlement prescribed by the Treaties. In
our opinion, the Court in the present case must make a similar investigation
in order to ascertain whether the conditions necessary for establishing an
obligation to arbitrate are present.
Similarly, in the Advisory Opinion relating to the Interpretation of the
Greco-Turk Agreement of December 1st, 1926, the Permanent Court of
International Justice, having been asked who was entitled to seise the
President of the Greco-Turk Arbitral Tribunal of certain proceedings, gave
its opinion on this question on the basis of the relevant provisions and did
not leave it to the President of this Tribunal to deal with the point by
deciding, in due course, whether [p 27] he had been properly seised. Yet
what was involved in that case was a question of the capacity necessary for
the seising of an authority which already existed. When, as in the present
case, it is a question of adjudicating upon the obligation to co-operate in
setting up a body which would be called upon to make a decision at a later
stage, the arguments in favour of a decision in advance on the question
whether all the necessary conditions are satisfied appear to be still more
convincing.
There is no rule of law nor anything contained in Article 29 of the Treaty
of 1926 which restricts the Court in the exercise of its jurisdiction to
decide upon the existence of the obligation to arbitrate. It follows from
this Article, in accordance with the interpretation given in the Judgment of
July 1st, 1952, that the Court has jurisdiction to deal with any dispute as
to the interpretation or application of the Declaration of 1926: this is
the question which arises in ascertaining whether the arbitration clause
contained in that Declaration is to be applied in the present case. Nothing
contained in this Article or in the Declaration imposes any limitation on
the power of the Court to consider any factor susceptible of affecting its
judgment and, in particular, nothing therein contained directs it to
surrender this examination to any other body. Provided the Court confines
itself, in the operative part of its Judgment, to adjudicating upon the
existence of the obligation to arbitrate, its power to consider the reasons
determining its decision does not appear to us to be limited by the fact
that a Commission of Arbitration may be constituted for the purpose of
deciding as to the validity of the Ambatielos claim.
***
By the Declaration of 1926, the United Kingdom consented to the submission
to arbitration of any difference with the Hellenic Government "as to the
validity" of "claims on behalf of private persons based on the provisions of
the Anglo-Greek Commercial Treaty of 1886". On the question whether this
provision is applicable to the "difference as to the validity of the
Ambatielos claim", the operative part of the Judgment of July 1st, 1952,
added the following words: "in so far as this claim is based on the Treaty
of 1886". This being the case, it is necessary to consider the meaning,
which is in issue between the Parties, of the expression "claims .... based
on the provisions of the Anglo-Greek Commercial Treaty of 1886", an
expression which is contained in the Declaration and repeated in the
Judgment.
It is not enough for the Hellenic Government to invoke a provision of the
Treaty of 1886 for the Ambatielos claim to be considered as "based on the
provisions of the .... Treaty of 1886" within the meaning of the Declaration
of 1926. There is nothing in the [p 28] Declaration which authorizes either
Party to the Treaty and Declaration of 1926 to impose its own subjective
interpretation of this expression. The Declaration states it objectively,
and the Court, which is empowered by Article 29 of the Treaty to interpret
the expression, must determine in an objective way whether the claim
presented under the Declaration is or is not based on the provisions of the
Treaty of 1886.
The arbitration clause, in the forin in which it appeared in the Protocol of
1886, was open to the risk of becoming ineffectual in cases where it was
invoked by one State and the respondent State alleged that the difference
existing between them lay outside the scope of the provisions of the clause.
The negative view of the respondent State was then sufficient to prevent the
practical application of the clause. By the combined effect of the
Declaration of 1926 and Article 29 of the Treaty of the same date, a remedy
was provided for this defect in the arbitration clause: by this remedy the
Court is empowered to decide this preliminary difference. The effect of this
is that the opinion which will prevail will be that formed by the Court
itself as to the character of the difference and, in the present case, on
the question whether the claim which has been presented is or is not a claim
based on the provisions of the Treaty of 1886.
When the Permanent Court and the present Court have had to ascertain whether
a dispute fell within the scope of an arbitration clause or a compulsory
jurisdiction clause, these Courts have always considered that it was their
duty first to determine the categories of disputes to which the clause in
question was applicable and then to enquire whether the dispute in question
fell within one of these categories.
This is the consequence of a principle of international law which forms the
basis of Article 36 of the Statute of the Court. In the Eastern Ca'relia
Opinion, the Permanent Court invoked this principle, and declared that "It
is well established in international law that no State can, without its
consent, be compelled to submit its disputes with other States either to
mediation or to arbitration, or to any other kind of pacific settlement".
This principle was thereafter applied on a number of occasions by the
Permanent Court, in particular in the cases concerning the Mavrommatis
Palestine Concessions, German Interests in Polish Upper Silesia, the Factory
at Chorzow, and the Rights of Minorities in Upper Silesia. That Court
applied the principle with particular care when it had. to decide the scope
of an exception ratione temporis contained in a compulsory jurisdiction
clause invoked before it in the Phosphates in Morocco case. The principle
was also applied by the International Court of Justice in the Corfu Channel
case, the Interpretation of Peace Treaties case and the Anglo-Iranian Oil
Company case. [p 29]
In applying this principle for the purpose of deciding whether a given
jurisdictional clause covered a given dispute which it was alleged could be
submitted to it by virtue of the clause in question, the Permanent Court was
not satisfied by a mere doubt resulting from weighty arguments presented
before it, nor by prima facie considerations or considerations of a
provisional character. In the Mavrommatis Palestine Concessions case, it
invoked "the fact that its jurisdiction .... is invariably based on the
consent of the respondent", and it expressly stated that it "cannot content
itself with the provisional conclusion that the dispute falls or not within
the terms of the Mandate". In the case concerning the Factory at Chorzow,
after repeating that its jurisdiction "is always a limited one, existing
only in so far as States have accepted it", the Court added:
"When considering whether it has jurisdiction or not, the Court's afm is
always to ascertain whether an intention on the part of the Parties exists
to confer jurisdiction upon it. The question as to the existence of a doubt
nullifying its jurisdiction need not be considered when, as in the present
case, this intention can be demonstrated in a manner convincing to the
Court."
Before declaring a State to be bound to submit a dispute to the decision of
an international tribunal, the Permanent Court and the present Court have
always considered it necessary to establish positively, and not merely on
prima facie or provisional grounds, that the State in question had in some
form given its consent to this procedure. No distinction in this connection
has been drawn between cases where the jurisdiction of the Court was
involved and cases where that of some other tribunal or authority was in
question.
Since there is nothing in the Declaration of 1926 to indicate an intention
that prima facie considerations should be regarded as sufficient, it is our
opinion, based on the principle referred to above and the way in which this
principle has been invariably applied, that the United Kingdom can only be
held to be under an obligation to accept the arbitral procedure by
application of the Declaration of 1926 if it can be established to the
satisfaction of the Court that the difference as to the validity of the
Ambatielos claim falls within the category of differences in respect of
which the United Kingdom consented to arbitration in the Declaration of
1926.
***
It is necessary therefore to examine the matter and, without prejudging the
validity of the Ambatielos claim, to ascertain what claims the Declaration
of 1926 was intended to refer to and whether the Ambatielos claim falls
within the category of claims so determined. [p 30]
The claims referred to by the Declaration of 1926 are claims "based on the
provisions of the Treaty" of 1886. These words should be construed in their
natural and ordinary meaning, as has been said over and over again and, in
particular, in the Advisory Opinion of the Court on the Competence of the
General Assembly for the Admission of a State to the United Nations. In our
opinion, the natural and ordinary meaning of these words is limited to
claims whose legal support is found in the provisions of the Treaty; that
is, claims whose validity should be appraised in the light of these
provisions; the natural and ordinary meaning of the words, in our opinion,
excludes claims whose support must be sought elsewhere. In accordance with
the method of interpretation adopted by the Court in the above-mentioned
Opinion, we would add that nothing in the Declaration suggests that the
Parties intended to confer any other meaning on these words.
A reading of the Declaration as a whole confirms the view that the natural
meaning of the words used corresponds to the purpose which the Parties had
in mind. The Declaration begins with a clause whose purpose is to keep
alive, in spite of the lapse of the Treaty of 1886, claims on behalf of
private persons based on the provisions of that Treaty. This clause can only
have a meaning, and can only have effect, in respect of claims legally based
on the Treaty of 1886. It cannot be' extended to cover claims in respect of
which those provisions might be invoked without being really applicable. It
was in the nature of things that this saving clause could only safeguard
claims that had a legal basis in the Treaty of r886. The arbitration clause
in the Declaration of 1926 mentions expressly the claims referred to in the
saving clause. It cannot extend to other claims.
Thus, and by virtue of the express reference made by the Declaration to the
Treaty of 1886, a difference concerning a claim on behalf of a private
person comes within the scope of. the arbitration clause of the Declaration
of 1926 only if the examination of the claim demonstrates that it falls
within the framework of the Treaty.
***
In order to determine whether the arbitration clause in the Declaration of
1926 should be applied in the present case, we must ascertain whether the
difference under consideration falls within the category of differences
which the Parties have agreed to submit to arbitration.
The sphere of application of the arbitration clause in the Declaration of
1926 has been defined by reference to the relevant law, namely, the
provisions of the Treaty of 1886. This method has been frequently adopted in
the drafting of arbitral or jurisdictional clauses. [p 31]
The method to be followed must therefore be to enquire whether the dispute
as to the validity of the Ambatielos claim falls to be decided by the
application of the provisions of the Treaty of 1886. This method was
described by the Permanent Court in the Mavrommatis Palestine Concessions
case as follows:
"For this reason the Court, bearing in mind the fact that its jurisdiction
is limited, that it is invariably based on the consent of the respondent and
only exists in so far as this consent has been given, cannot content itself
with the prosivional conclusion that the dispute falls or not within the
terms of the Mandate. The Court, before giving judgment on the merits of the
case, will satisfy itself that the suit before it, in the form in which it
has been submitted and on the basis of the facts hitherto established, falls
to be decided by application of the clauses of the Mandate. For the
Mandatory has only accepted the Court's jurisdiction for such disputes."
The same method was adopted by the Permanent Court in the Phosphates in
Morocco case and by the present Court in its Advisory Opinion concerning the
Interpretation of Peace Treaties. Having to decide whether the disputes
under consideration were among those which were subject to the provisions of
the Peace Treaties for the settlement of disputes by means of Commissions,
the Court examined the subject-matter of the differences. It found that the
disputes related "to the question of the performance or nonperformance of
the obligations provided in" certain articles of the Treaty, and it deduced
from this finding that these disputes "are clearly disputes concerning the
interpretation or execution of the Peace Treaties", and that furthermore the
Governments con-cerned were bound to carry out the provisions of those
articles in the treaties relating to the settlement of disputes by means of
Commissions.
***
We therefore have to consider whether the Ambatielos claim falls within the
framework of the Treaty of 1886. In order to do this, it is necessary to
examine the claim as it has been put forward, without enquiring whether the
facts alleged are true or not, and to consider the provisions of the Treaty
of 1886 which the Hellenic Government has invoked.
The origin of the claim is to be found in a contract between Mr. Ambatielos
and the British Ministry of Shipping for the sale of nine ships then under
construction. Mr. Ambatielos has contended that this contract was not
properly carried out by the seller, but this question of the breach of the
contract is not one which has to be decided by international arbitration. It
was sub-[p 32]mitted to English Courts by common accord of the Parties, as
is stated in the British Note of 29th May 1933, and not disputed in the
Hellenic answer of 3rd August 1933. The Admiralty Court gave judgment
against Mr. Ambatielos, who appealed against this decision to the Court of
Appeal but subsequently abandoned his appeal.
The present claim, as formulated by the Hellenic Government, relates to the
way in which justice was administered in the proceedings in the English
Courts between Mr. Ambatielos and the Board of Trade as the successor to the
Ministry of Shipping. It has been alleged, on behalf of the Hellenic
Government, that officials of the Board of Trade wrongly failed to produce
in the Admiralty Court all the evidence available and that this resulted in
damage to Mr. Ambatielos. The Hellenic Government also complains of the
refusal by the Court of Appeal of leave to Mr. Ambatielos to adduce new
evidence. The difference existing between the Hellenic Government and the
United Kingdom Government is therefore concerned with a claim based on
alleged improper administration of justice, in particular with regard to the
production of evidence in proceedings in the English Courts. The question
for this Court is to decide whether the matter of complaint thus relied upon
falls within the provisions of the Treaty of 18S6. Without passing upon the
truth of the facts relied on, and assuming them to be established, without
moreover passing on the legal or illegal character of these facts, it is
possible to determine whether this legal or illegal character is or is not
dependent on the application of the provisions of the Treaty of 1886, and
to decide, as a result of the view, formed on this point, whether the claim
based on these facts is or is not one which should be referred to
arbitration in application of the Declaration of 1926. Such a decision,
relating solely to the obligation to resort to arbitration, will not
prejudge any decision to be given as to the validity of the Ambatielos
claim, which is not within the jurisdiction of the Court.
Is the claim of the Hellenic Government against the United Kingdom, the
object of which has been thus defined, within the framework of the Treaty of
1886 ? The reply to this question must be in the affirmative before there
can arise an obligation, in accordance with the Declaration of 1926, to
submit the claim to arbitration. The provisions of the Treaty of 1886
invoked by the Hellenic Government must now be considered.
The Hellenic Government invokes Article XV, paragraph 3, of the Treaty of
1886. This Article provides:
"The subjects of each of the two Contracting Parties in the dominions and
possessions of the other shall have free access to the Courts of Justice for
the prosecution and defence of their rights, without other conditions,
restrictions, or taxes beyond those imposed on native subjects, and shall,
like them, be at liberty to employ, in all causes, their advocates,
attorneys or agents, from among the [p 33]persons admitted to the exercise
of those professions according to the laws of the country."
This Article promises free access to the Courts; it says nothing with regard
to the production of evidence. Questions as to the production of evidence
are by their nature within the province of the law of the Court dealing with
the case (lex fori). The Treaty could have laid down certain requirements in
this connection, but it did not do so. The free access clause frequently
found in treaties, more commonly in the past than at the present, has as its
purpose the removal, for its beneficiaries, of the obstructions, which
existed in certain countries as the result of old traditions, to the right
of foreigners to have recourse to the Courts. Its object is, as it states,
to ensure free access to the Courts, not to regulate the different question
of the production of evidence. An extensive interpretation of the free
access clause which would have the effect of including in it the
requirements of the proper administration of justice, in particular with
regard to the production of evidence, would go beyond the words and the
purpose of Article XV, paragraph 3. Free access to the Courts is one thing;
the proper administration of justice is another. A distinction is
traditionally drawn between the two as is shown, in particular, by the
preparatory work of the 1930 Conference for the Codification of
International Law (see in particular the Report of the Sub-Committee of the
Committee of Experts for the Progressive Codification of International Law,
League of Nations, C. 196. M. 70. 1927. V, pages 96-100 and 104;
Observations of the Hellenic Government on this Report, pages 167-168, and
Bases of Discussion Nos. 5 and 6 by the Preparatory Committee, League of
Nations, C. 75. M. 69. 1929. V, Vol. Ill, pages 48 and 51).
Finally, it is necessary not to lose sight of the fact that in this case the
Court has to decide, on the basis of the meaning to be attributed to the
free access clause, what is the extent of the obligation to arbitrate
arising from the Declaration of 1926. With two interpretations of Article
XV, paragraph 3, before us, we cannot subscribe to the one which would
extend it to the production of evidence and thereby enlarge the obligation
to submit to arbitration. It is particularly difficult to accept an
interpretative extension of an obligation of a State to have recourse to
arbitration. The Permanent Court in the Phosphates in Morocco case stated
that a jurisdictional clause must on no account be interpreted in such a way
as to exceed the intention of the States that subscribed to it. It went on
to say with regard to the scope to be attributed to an exception ratione
temporis contained in the compulsory jurisdiction clause invoked before it:
"it is necessary always to bear in mind the will of the State which only
accepted the compulsory jurisdiction within specified limits, and
consequently only intended to submit to that jurisdiction [p 34] disputes
having actually arisen from situations or facts subsequent to its
acceptance".
The free access clause does not do more than provide for free access and for
national treatment as regards conditions, restrictions, taxes and the
employment of counsel. The complaint, as put before the Court in this case,
does not allege that Mr. Ambatielos was refused access to the English
Courts, or that he was denied national treatment as regards conditions,
restrictions, taxes or the employment of counsel. The Hellenic Government
merely alleges that the production of evidence was effected in a manner
which in its opinion was defective and detrimental to its national. Article
XV, paragraph 3, is unconnected with this complaint. If any legal rule has
been broken, it is not a rule contained in this Article.
In fact, when the Hellenic Government complains that the executive or
judicial authorities of the United Kingdom have not acted according to the
requirements of the proper administration of justice, it is alleging a
violation of general international law. Can such a claim be considered to be
based on a provision of the Treaty of 1886 ? At this stage we meet Article X
of the Treaty of 1886 which has been invoked by the Hellenic Government.
This Article contains a most-favoured-nation clause which, in its opinion,
embodies certain references to the requirements of the proper administration
of justice. But, having regard to its terms, Article X promises
most-favoured-nation treatment only in matters of commerce and navigation;
it makes no provision concerning the administration of justice; in the
whole of the Treaty this matter is the subject of only one provision, of
limited scope, namely, Article XV, paragraph 3, concerning free access to
the Courts, and that Article contains no reference to most-favoured-nation
treatment. The mostfavoured-nation clause in Article X cannot be extended
to matters other than those in respect of which it has been stipulated. We
do not consider it possible to base the obligation on which the Court has
been asked to adjudicate, on an extensive interpretation of this clause.
The Hellenic Government has also invoked Articles I and XII of the Treaty of
1886 as a basis for its claim, but these Articles, like Article X, are
unconnected with the administration of justice. They throw no light on the
question whether the evidence was properly or improperly produced in the
English Courts. Nor do they permit an opinion to be formed as regards the
complaint of improper performance of the contract or of unjust enrichment,
even assuming that these complaints fall to be considered by an
international tribunal. [p 35]
The difference as to the validity of the Ambatielos claim, in respect of
which the Court has been asked to say whether it should be referred to
arbitration in accordance with the Declaration of 1926, does not, therefore,
appear to us to fall within the provisions of the Treaty of 1886 which have
been invoked. A comparison between the object of the claim and the
provisions of the Treaty thus leads us to the conclusion that the
claim—whether it be justified or not—falls outside the scope of the
arbitration clause in the Declaration of 1926.
***
For these reasons, we consider that the Ambatielos claim does not fall
within the category of claims in respect of which the United Kingdom has
agreed to arbitration by the Declaration of 1926. Consequently the United
Kingdom, in our opinion, is not under an obligation to submit this claim to
the arbitral procedure provided for in that Declaration.
(Signed) Arnold D. McNair.
(Signed) Basdevant.
(Signed) Helge Klaestad.
(Signed) J. E. Read.S |
|
