General List No. 74 and 76

30 June 1938

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1938

 

The Panevezys-Saldutiskis Railway Case (Preliminary Objections)

 

Estonia v. Lithuania

Order

 
BEFORE: President: Guerrero
Vice-President: Sir Cecil Hurst
Judges: Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Negulesco, Jhr. Van Eysinga, Nagaoka, Cheng, De Visscher,
Judge(s) ad hoc: Strandman, Römer'is
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1938.06.30_panevezys-saldutiskis.htm
  
Citation: Panevezys-Saldutiskis Railway (Est. v. Lith.), 1938 P.C.I.J. (ser. A/B) No. 75 (Order of June 30)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 75; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1938.
  
 

  

[p53] The Permanent Court of International Justice,
composed as above,
after deliberation,
having regard to Articles 40 and 48 of the Statute of the Court,
having regard to Article 62 of the Rules of Court,
Makes the following Order :

AS REGARDS THE POSITION OF THE PROCEEDINGS:

[1] Whereas, by an Application filed in the Registry of the Court on November 2nd, 1937, the Estonian Government instituted proceedings before the Court against the Lithuanian Government regarding the rights claimed by the Esimene Juurdeveo Raudteede Selts Venemaal Company over the Panevezys-Saldutiskis railway;

[2] Whereas the Application was presented having regard to the declarations of Estonia and Lithuania acceding to the Optional [p54] Clause of Article 36, paragraph 2, of the Statute of the Court;

[3] Whereas the Application prays the Court to adjudge and declare :

"1. That the Lithuanian Government has wrongfully refused to recognize the rights of the Esimene Juurdeveo Raudteede Selts Venemaal Company, as owners and concessionaires of the Panevezys-Saldutiskis railway line, and to compensate that company for the illegal seizure and operation of this line.
2. That the Lithuanian Government is under an obligation to make good the prejudice which has been thus sustained by the Esimene Juurdeveo Raudteede Selts Venemaal Company, and which is estimated, the proposals for a compromise made by that company having been withdrawn, at the sum of 14,000,000 Gold Lits, plus interest at 6 % per annum as from January 1st, 1937."

[4] Whereas the Application was notified to the Lithuanian Government on November 2nd, 1937;

[5] Whereas the Court did not include on the Bench any judge of the nationality of either of the Parties and the Estonian and Lithuanian Governments, availing themselves of their right under Article 31 of the Statute each to nominate a judge, have nominated respectively in this capacity, the Estonian Government, M. Otto Strandman, and the Lithuanian Government, M. Mykolas Römer'is ;

[6] Whereas, by an Order made on November 15th, 1937, the President of the Court fixed the time-limits for the filing of the Memorial, Counter-Memorial, Reply and Rejoinder;
Whereas, within the time-limit thus fixed, the Estonian Government filed its Memorial, in which it prayed the Court to adjudge and declare :

"1. That the Lithuanian Government has wrongfully refused to recognize the rights of the Esimene Juurdeveo Raudteede Selts Venemaal Company, as owners and concessionaires of the Panevezys-Saldutiskis railway line, and to compensate that company for the illegal seizure and operation of this line.
2. That the Lithuanian Government is under an obligation to make good the prejudice which has been thus sustained by the Esimene Juurdeveo Raudteede Selts Venemaal Company and which is estimated at I) the sum of 6,850,000 Gold Lits representing the value of the railway, plus II) the sum representing the annual payments due for the operation of the line by the Lithuanian authorities from the date of seizure to the date of payment, the annual payments being reckoned at the uniform rate of six per cent of the value of the railway fixed above."

[7] Whereas on March 15th, 1938, the date fixed for the filing of the Counter-Memorial, the Lithuanian Government filed preliminary objections accompanied by a Preliminary Counter-Memorial; [p55]

[8] Whereas the Lithuanian Government raises two objections to the claims of the Estonian Government, the first of these objections being based "on the non-observance by the Estonian Government of the rule of international law to the effect that a claim must be a national claim not only at the time of its presentation, but also at the time when the injury was suffered", and the second "on the non-observance by the Estonian Government of the rule of international law requiring the exhaustion of the remedies afforded by municipal law" ; and submitted that the claims of the Estonian Government could not be entertained ;

[9] Whereas, under Article 62, paragraph 3, of the Rules, proceedings on the merits are suspended as the result of the filing of the objections; whereas accordingly the President of the Court fixed the time within which the Estonian Government might present a written statement of its observations and submissions in regard to the objections raised by the Lithuanian Government;

[10] Whereas the Estonian Government, within the time-limit thus fixed, filed its written observations and submissions praying the Court to overrule the preliminary objections of the Lithuanian Government ;

[11] Whereas, in the course of public sittings held on June 13th, 14th, 15th, 17th and 18th, 1938, the Court heard oral arguments upon the said objections presented by M. André Mandelstam, Agent, on behalf of Lithuania, and by Baron Boris Nolde, Agent, on behalf of Estonia ;

[12] Whereas the submissions made in the documents of the written proceedings were maintained by the Parties in the oral proceedings ;

[13] Whereas, in these circumstances, it is incumbent on the Court, under Article 62, paragraph 5, of the Rules, either to give its decision upon the objections or to join them to the merits ;

AS REGARDS THE PRELIMINARY OBJECTIONS :

[14] Whereas the preliminary objections of the Lithuanian Government aim at obtaining from the Court a decision that the Estonian Government is not entitled in the present case to take up the case of the Esimene Juurdeveo Raudteede Selts Venemaal Company, nor to submit that case to the Court ;

[15] Whereas the Estonian Government submits that the said objections should be overruled, on the ground, firstly, that the Lithuanian Government is not entitled to present these objections as preliminary objections and, alternatively, that they are not well-founded ;

[16] Whereas, at the present stage of the proceedings, a decision cannot be taken either as to the preliminary character of the objections or on the question whether they are well-founded; [p56] any such decision would raise questions of fact and law in regard to which the Parties are in several respects in disagreement and which are too closely linked to the merits for the Court to adjudicate upon them at the present stage ;

[17] Whereas, in view of the said disagreement between the Parties, the Court must have exact information as to the legal contentions respectively adduced by the Parties and the arguments in support of these contentions ;

[18] Whereas, if it were now to pass upon these objections, the Court would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution;

[19] Whereas the Court may order the joinder of preliminary objections to the merits, whenever the interests of the good administration of justice require it;

[20] Whereas, in view of these considerations, the objections submitted by the Lithuanian Government should be joined to the merits ;

AS REGARDS THE FURTHER PROCEEDINGS :

[21] Whereas under Article 62, paragraph 5, of the Rules, it is incumbent on the Court, when it joins objections to the merits, once more to fix time-limits for the further proceedings ; and time-limits for the filing of the Counter-Memorial, Reply and Rejoinder on the merits must therefore be fixed ;

[22] THE COURT:

(1) joins the objections raised by the Lithuanian Government to the merits on the proceedings instituted by the Application of the Estonian Government, filed with the Registry on November 2nd, 1937, in order that it may adjudicate in one and the same judgment upon these objections and, if need be, on the merits ;
(2) fixes as follows the time-limits for the filing of the subsequent documents :

(a) for the Counter-Memorial of the Lithuanian Government : September 1st, 1938;
(b) for the Reply of the Estonian Government : October 14th, 1938;
(c) for the Rejoinder of the Lithuanian Government : November 25th, 1938. [p57]

[23] Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this thirtieth day of June, one thousand nine hundred and thirty-eight, in three copies, of which one will be placed in the archives of the Court and the others will be transmitted to the Estonian and Lithuanian Governments respectively.

(Signed) J. G. Guerrero,
President.

(Signed) J. López Oliván,
Registrar.







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