General List No. 75

 26 February 1940

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1940

 

The Electricity Company of Sofia and Bulgaria

 

Belgium v. Bulgaria

Order

 
BEFORE: President: Guerrero
Vice-President: Sir Cecil Hurst
Judges: Fromageot, Altamira, Anzilotti, Negulesco, Jhr. Van Eysinga, Hudson, Cheng, De Visscher, Erich
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1940.02.26_electricity.htm
  
Citation: Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.), 1940 P.C.I.J. (ser. A/B) No. 80 (Order of Feb. 26)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 80; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1940.
  
 

  

[p4] The Permanent Court of International Justice,
composed as above,
after deliberation,
Having regard to Articles 43 and 48 of the Statute of the Court,
Having regard to Articles 37, 42, 45 and 47 of the Rules of Court,
Makes the following Order:

[1] Having regard to the Application filed in the Registry of the Court on January 26th, 1938, whereby the Belgian Government brought before the Court against the Bulgarian Government a suit with regard to the Electricity Company of Sofia and Bulgaria;

[2] Having regard to the appointment by the two Governments-concerned of their respective Agents, namely: for the Belgian Government, M. J. G. de Ruelle, and, for the Bulgarian Government, M. Ivan Altinoff;

[3] Having regard to the nomination by the Bulgarian Government — which, having no judge of its nationality in the Court, [p5] availed itself of its right under Article 31 of the Statute; — of M. Theohar Papazoff to sit in the case;

[4] Having regard to the Order made by the President of the Court on March 28th, 1938, fixing June 1st, 1938, as the date for the filing of the Memorial of the Belgian Government and September 12th, 1938, as the date for the filing of the Counter-Memorial of the Bulgarian Government, the fixing of time-limits for the filing of a Reply by the Belgian Government and of a Rejoinder by the Bulgarian Government being left for a subsequent Order;

[5] Having regard to the Memorial duly filed by the Belgian Government on June 1st, 1938 (subsequently reprinted on August 27th to meet a request of the Bulgarian Government);

[6] Having regard to the request for the indication of interim measures of protection filed with the Registry of the Court on July 4th, 1938, by the Belgian Government, and to the telegrams sent by the Agent for the Bulgarian Government to the President of the Court on July 27th, 1938, and the letter of the Agent for the Belgian Government to the Registrar of the Court, dated August 26th, 1938;

[7] Having regard to the Order made by the President of the Court on August 27th, 1938, whereby, in view of the above-mentioned communications, the withdrawal by the Belgian Government of the said request for the indication of interim measures of protection was placed on record;

[8] Having regard to the Order made by the President of the Court on the same date, August 27th, 1938, extending until October 31st, 1938, the time-limit originally fixed to expire on September 12th for the filing of the Bulgarian Counter-Memorial;

[9] Having regard to the Order made by the President of the Court on October 22nd, 1938, granting the Bulgarian Government a further extension of time expiring on November 30th, 1938, for the filing of its Counter-Memorial;

[10] Having regard to the preliminary objection raised on November 25th, 1938, by the Bulgarian Government contending that the Court had no jurisdiction;

[11] Having regard to the judgment upon this objection rendered by the Court on April 4th, 1939, whereby the objection was partially overruled;

[12] Having regard to the Order made the same day, April 4th, 1939, whereby the Court extended until July 4th, 1939, the time-limit for the filing of the Bulgarian Counter-Memorial and fixed August 19th and October 4th, 1939, respectively as the dates of expiration of the time-limits for the filing of a Reply and Rejoinder;

[13] Having regard to the Bulgarian Counter-Memorial which was duly filed on July 4th, 1939, and to the Belgian Reply duly filed on August 19th, 1939; [p6]

[14] Having regard to the following telegram sent to the Court by the Bulgarian Agent on October 2nd, 1939:

"Sofia — October 2nd, 1939 — Have honour inform Court that recent events have prevented my collaboration with advocate for Bulgarian defence French Professor Gilbert Gidel and that owing to circumstances of force majeure resulting from the war am unable present Bulgarian Rejoinder — Altinoff Minister Plenipotentiary Agent Bulgarian Government";

[15] Having regard to the following telegram sent to the Court on October 3rd, 1939, by the Belgian Agent in response to a communication transmitting the telegram of October 2nd, 1939, of the Bulgarian Agent:

"Brussels — October 3rd, 1939 — In case Electricity Company Sofia Belgian Government makes no objection to reasonable extension time-limit having regard force majeure stop Nevertheless Sofia Municipality having on August 1st brought an action as demandant against the Belgian Company before the Bulgarian courts on the basis of their earlier declaratory decisions Belgian Government will submit to Court new request for interim measures protection in case Sofia action decided before Hague case — de Ruelle";

[16] Having regard to the Order made by the President of the Court on October 4th, 1939, extending until January 4th, 1940, the time-limit granted to the Bulgarian Government for the filing of its Rejoinder;

[17] Having regard to the request of the Belgian Government of October 17th, 1939, for the indication of interim measures of protection;

[18] Having regard to the notification of this request on October 18th, 1939, to the Agent for the Bulgarian Government, and to the fixing of November 24th, 1939, as the date of expiration of the time allowed for the presentation of any observations in writing which he might make upon the request of the Belgian Government for the indication of interim measures of protection;

[19] Having regard to the following telegram of the Bulgarian Agent, dated November 18th, 1939:

"Sofia — November 18th, 1939 — In reply second Belgian incidental request am instructed by Bulgarian Government inform Court that in consequence of war impossible for Bulgarian Agent collaborate with foreign counsel in preparation Bulgarian defence and that owing to necessity of crossing belligerent countries to reach Hague involving serious risks personal safety Bulgarian Government forbids departure national judge Papazoff and Bulgarian Agent stop Having regard this situation of force majeure Bulgarian Government does not consider itself bound to submit Court observations asked for but declares many reasons exist for rejection Belgian request interim measures — Altinoff Minister Plenipotentiary Agent Bulgarian Government"; [p7]

[20] Having regard to the Order made by the Court on December 5th, 1939, adjudicating upon the request of the Belgian Government for the indication of interim measures of protection;
Having regard to the following telegram sent to the Court on January 2nd, 1940, by the Bulgarian Agent:

"Sofia — January 2nd, 1940 — Have honour inform Court that Bulgarian Government reiterates its statement concerning existence of circumstances of force majeure for reasons given in my two earlier telegrams of October 2nd and November 18th in consequence of which it does not consider itself bound to present Bulgarian Rejoinder to Court by date fixed stop According to official information advocate for Bulgarian defence well-known Professor Gilbert Gidel has been mobilized in French army — Altinoff Minister Plenipotentiary Agent Bulgarian Government";

[21] Having regard to the letter of January 24th, 1940, whereby the Belgian Agent replied to the communication transmitting to him the telegram of the Bulgarian Agent of January 2nd, 1940, and submitted to the Court "certain observations in the form of submissions":

"Sir, — On the 4th instant you were good enough to inform me of the text of a telegram from the Agent for the Bulgarian Government dated January 3rd, regarding the case now pending between the State of Belgium and the State of Bulgaria (the case of the Electricity Company of Sofia and Bulgaria). — The attitude adopted by the Bulgarian Government in this telegram with regard to force majeure calls for certain observations on the part of the Belgian Government which I have the honour to submit to the Court in the form of submissions the text of which is attached. — I have, etc. — J. de Ruelle, Agent for the Belgian Government. — Case concerning the Electricity Company of Sofia and Bulgaria. — Submissions. — Having regard to the telegram sent by the Agent for the Bulgarian Government to the Registrar of the Court on January 3rd, — Whereas the Belgian Government cannot accept the contention therein set forth, namely that the state of war at present existing between certain countries constitutes a situation of force majeure preventing the continuation of the proceedings which should therefore be suspended indefinitely until the end of the war, — Whereas this contention is unreasonable, calculated to obstruct the rights of the applicant Party and inconsistent with the high mission of the Court, — Whereas neither of the Parties to the case is involved in the hostilities and nor are the Netherlands, where the seat of the Court is established, — Whereas it can be established, if the fact be denied, that communications between these three countries have not been interrupted, — Whereas furthermore if the Court, which has sole responsibility for its procedure, should for any reason see fit to grant a final extension of time, the Belgian Government would not raise any objection as it stated in the course of the oral proceedings in regard to the indication of interim measures of protection, — Whereas however no such limited step is contemplated in the above-mentioned telegram of the Agent for the [p8] Bulgarian Government, — For these reasons, — May it please the Court, — To declare that there is no ground for the suspension of its proceedings, the argument of force majeure having been wrongfully invoked by the respondent Party, — and to afford the applicant Party an opportunity if need be of presenting additional submissions for the continuation of the proceedings after the Court has rendered the decision here sought. — Brussels, January 24th, 1940. J. de Ruelle, Agent for the Belgian Government";

[22] Whereas the judge nominated by the Bulgarian Government was duly convoked on January 5th, 1940, for February 19th, 1940.

***

[23] Whereas, in the first place, the Court is called upon to consider whether the alleged impossibility of collaborating with a foreign advocate and the alleged risks of the journey to The Hague constitute circumstances of force majeure affording justification for the non-presentation of its Rejoinder by the Bulgarian Government on January 4th, 1940, the date fixed after the extension of the time-limit by the Order of October 4th, 1939;

[24] Whereas, in regard to this question, it is, on the one hand, for the Bulgarian Government, if it desires to have the assistance of an advocate, to select some advocate, of its own or a foreign nationality, whose collaboration in the present circumstances can be effectively secured, and, on the other hand, it has not been established that in actual fact there has been or is up to the present time anything to impede travelling and communications between Bulgaria and the seat of the Court;

[25] Whereas the facts alleged do not therefore constitute a situation of force majeure calculated to justify the Bulgarian Government for having failed to observe the time-limit which was granted to it for the filing of a Rejoinder and which expired on January 4th, 1940;

[26] Whereas it appears from the Memorial and Counter-Memorial respectively filed in accordance with the Orders of March 28th, August 27th, 1938, and April 4th, 1939, that, as provided by Article 42 of the Rules, on the one hand, the Belgian Government, the Applicant, has presented its statement of the facts, its statement of law and its submissions, and, on the other hand, the Bulgarian Government, the Respondent, has stated whether it admits or denies the facts set out in the Belgian Memorial, has presented its additional facts, its observations concerning the statement of law in the Belgian Memorial, its own statement of law in answer and its submissions;

[27] Whereas the Bulgarian Government, by now abstaining without valid reasons from presenting a Rejoinder in response to the Belgian Reply of August 19th, 1939, as it had the opportunity of doing up till January 4th, 1940, pursuant to [p9] the Order of April 4th, 1939, and the extension of time granted by the Order of October 4th, 1939, cannot thus of its own volition prevent the continuation of the proceedings instituted and the due exercise of the powers of the Court in accordance with the Statute and Rules;

[28] Whereas the Belgian Government, in its observations presented in the form of submissions on January 24th, 1940, expressly asks the Court that the proceedings shall not be suspended and that an opportunity shall be afforded it, if need be, of presenting additional submissions for the continuation of the proceedings;

[29] Whereas in these circumstances the written proceedings must be regarded as terminated and the case is, under Article 45 of the Rules, ready for hearing;

[30] Whereas, under Article 47, paragraph 1, of the Rules, the Court must now fix the date for the commencement of the oral proceedings;

[31] Whereas furthermore regard must be had in this connection to the time necessary to enable the Parties to prepare their respective oral arguments;

[32] For these reasons,
The Court
fixes May 16th, 1940, as the date for the commencement of the oral proceedings in the suit brought before the Court by the Application of the Belgian Government filed with the Registry of the Court on January 26th, 1938.

[33] The present Order has been drawn up in French, the Parties having agreed that the case should be conducted in that language. [p10]

[34] Done at the Peace Palace, The Hague, this twenty-sixth day of February, one thousand nine hundred and forty, in three copies, one of which will be deposited in the archives of the Court and the others will be communicated to the Belgian Government and the Bulgarian Government respectively.

(Signed) J. G. Guerrero,
President.
(Signed) J. Lopez Olivan,
Registrar.





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