19 May 1953

 

General List No. 15

 
     

international Court of Justice

     
 

Ambatielos

 
     

Greece

 

v. 

United Kingdom

     
     
 

Judgment

 
     
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BEFORE: Vice-President: Guerrero, Acting President;
President: Sir Arnold McNair;
Judges: Alvarez, Basdevant, Hackworth, Winiarski, Zoricic, Klaestad, Badawi Pasha, Read, Hsu Mo, Levi Carneiro, Sir BenegalRAU, Armand-Ugon ;
Judge ad hoc: M. Spiropoulos
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1953.05.19_ambatielos.htm
   
Citation: Ambatielos, Greece v. U.K., Judgment, 1953 I.C.J. 10 (May 19)
   
Represented By:

United Kingdom: Mr. W. V. J. Evans, Assistant Legal Adviser, Foreign Office, as Agent; assisted by Mr. G. G. Fitzmaurice, C.M.G., Second Legal Adviser to the Foreign Office, as Assistant Agent and Counsel; Mr. J. E. S. Fawcett, D.S.C., Member of the English Bar, Mr. D. H. N. Johnson, Assistant Legal Adviser, Foreign Office, as Counsel;

Greece: M. N. G. Lely, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of the Hellenes in the Netherlands, as Agent;
assisted by M. E. Verghis, Charge d'affaires ad interim of Greece in the Netherlands, as Assistant Agent; M. Henri Rolin, Professor of International Law at Brussels University, former President of the Belgian Senate; The Right Honourable Sir Frank Soskice, Q.C., M.P., former Attorney-General of the United Kingdom; Mr. C. J. Colombos, Q.C., LL.LX, Member of the English Bar, as Counsel.

 
     
 
 
     
 

[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

 
     

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