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[p194] The
Permanent Court of International Justice,
composed as above,
after deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court,
Having regard to Article 61 of the Rules of Court,
Makes the following Order :
[1] Having regard to the Application filed with the Registry of the Court on
January 26th, 1938, whereby the Belgian Government instituted before the
Court proceedings against the Bulgarian Government 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, [p195] 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 Memorial filed by the Belgian Government on August
27th, 1938 ;
[5] 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 ;
[6] 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 ;
[7] Having regard to the preliminary objection raised by the Bulgarian
Government on November 25th, 1938.;
[8] Having regard to the Judgment of April 4th, 1939, in which the Court
adjudicated upon this objection ;
[9] Having regard to the Order of the same date, whereby the Court fixed
July 4th, August 19th and October 4th, 1939, as the dates of expiration of
the time-limits for the filing of the Counter-Memorial, Reply and Rejoinder
on the merits ;
[10] Having regard to the Counter-Memorial of the Bulgarian Government and
the Reply of the Belgian Government, which were filed by the prescribed
dates ;
[11] Having regard to the Order, dated October 4th, 1939, whereby, in view
of a telegram from the Agent for the Bulgarian Government dated October 2nd,
1939, the time-limit for the filing of the Bulgarian Rejoinder was extended
until January 4th, 1940 ;
[12] Whereas, on October 17th, 1939, the Agent for the Belgian Government
filed with the Registry of the Court a new document, dated October 14th,
1939, and entitled "Second incidental Request of the Belgian Government for
the indication of interim measures of protection", which runs as follows :
"In the action brought by the State of Belgium against the.State of Bulgaria
(case concerning the Electricity Company of Sofia and Bulgaria),
Having regard to the Application instituting proceedings, filed with the
Registry by the Applicant on January 26th, 1938,
Having regard to Articles 41 and 48 of the Court's Statute and Article 61 of
its Rules,
Having regard to the request for the indication of interim measures of
protection, dated July 2nd, and filed in the Registry of the Court on July
4th, 1938, [p196]
Having regard to the letter addressed to the Registrar of the Court by the
undersigned on August 26th, 1938,
Having regard to the Order made by the Court on August 27th, 1938, placing
on record the withdrawal by the Belgian Government of the above request for
the indication of interim measures of protection,
Having regard to the Court's Judgment of April 4th, 1939, on the objection
to the jurisdiction raised by the Respondent,
Whereas it appears from the aforementioned communication addressed by the
undersigned to the Registrar of the Court on August 26th, that the Belgian
Government only withdrew its request for the indication of interim measures
of protection subject to reservations and relying on a declaration of the
Bulgarian Government to the effect that, having regard to the purely
declaratory nature of the Bulgarian judicial decisions of which the
Municipality of Sofia claimed the execution, the non-payment by the
Electricity Company of Sofia and Bulgaria could not lead to the application
of any measure of compulsion against the Company; for, it was added, to
obtain the payment desired, the Municipality must bring an action as
demandant before the Bulgarian courts, and this action would, if need be, be
heard successively by the three usual courts of the Bulgarian judicial
hierarchy; the claim based on the "declaratory" decisions was for 70,745,610
leva ;
Whereas, on August 1st, 1939, the Municipality of Sofia, which had been
substituted for all the consumers of current by the decree law of April
13th, 1938 (No. 62 of the Annexes to the Belgian Memorial), brought against
the said Company a petitory action based on the previous decisions of the
Bulgarian courts, as appears from the attached certificate ;
Whereas the sum claimed has however been raised from 70,745,610 leva to
82,360,577 leva;
Whereas the measures of execution with which the Belgian Company is
threatened are such as would not only seriously prejudice the Company's
position but also impede the restoration of its rights by the Municipality,
if the Court were to uphold the Belgian Government's claim;
Whereas the undersigned vainly endeavoured to induce the Bulgarian Agent to
intervene with a view to the suspension of the new proceedings now pending;
And whereas the Bulgarian Government, having regard to the international
situation, has asked the Court for an extension of the time granted for the
filing of its Counter-Memorial, and there is thus reason to fear that a
decision on the merits will not be given before the order for execution
applied for by the Municipality of Sofia,
For these reasons,
The undersigned Agent for the Belgian Government prays the Court, in the
exercise of the powers conferred on it by Articles 41 and 48 of the Statute
and Article 61 of the Rules of Court, to indicate as an interim measure of
protection that the new proceedings in the Bulgarian courts shall be
suspended until the Permanent Court of International Justice has delivered
judgment on the merits"; [p197]
[13] Whereas this request was notified on October 18th, 1939, to the Agent
for the Bulgarian Government who was at the same time asked to let the
Registry of the Court have before November 24th, 1939, any observations in
writing which he might have to make upon the request of the Belgian
Government for the indication of interim measures of protection ;
[14] Whereas by a telegram dated November 18th, 1939, the Agent for the
Bulgarian Government, on the instructions of his Government, informed the
Court that, owing to the-war, the Agent for the Bulgarian Government found
it impossible to collaborate with foreign Counsel in the preparation of the
Bulgarian defence, that, owing to the necessity of traversing belligerent
countries to reach The Hague, which involved serious risks to personal
safety, the Bulgarian Government forbade the departure of the national judge
nominated by it and of its agent and that, in view of these circumstances of
force majeure, the Bulgarian Government did not consider it incumbent upon
it to submit the observations asked for, though it declared that many
reasons existed for the rejection of the Belgian request for the indication
of interim measures of protection ;
[15] Whereas, on November 24th, 1939, the President of the Court, in
accordance with Article 61, paragraph 8, of the Rules of Court, fixed
December 4th, 1939, for a public sitting for the hearing of the observations
of the Parties upon the request for the indication of interim measures of
protection ;
[16] Whereas the judge nominated by the Bulgarian Government, having been
duly summoned to attend the public sitting thus fixed, announced in a
telegram dated November 25th, 1939, that it was impossible for him, owing to
circumstances of force majeure, to come to The Hague ;
[17] Whereas, by telegrams dated November 24th, 1939, the Agents of the two
Parties were duly informed of the fixing of the public sitting for December
4th, 1939 ; but whereas, in view of the above-quoted telegram dated November
18th, 1939, from the Agent for the Bulgarian Government, only the Agent for
the Belgian Government appeared before the Court on the date fixed ;
[18] Whereas the Bulgarian Government was not therefore represented before
the Court at the public sitting held on December 4th, 1939 ;
[19] Whereas at this sitting, the Court heard M. J. G. de Ruelle, Agent for
the Belgian Government, and Maitre Henri Rolin, Counsel; and whereas the
request presented in the document dated October 14th, 1939, was not amended
in the course of the hearing ;
[20] Whereas on September 8th, 1939, the Regional Court of Sofia delivered
the following certificate produced by the Belgian Government as an annex to
its request of October 14th, 1939: [p198]
"CERTIFICATE. - The Regional Court of Sofia, Second Civil Section, delivers
the present certificate to the Electricity Company of Sofia and Bulgaria,
certifying that by means of an application bearing No. 32406 of August 1st,
1939, whereby civil action No. 852/939 has been instituted, the Great
Municipality of the Capital has brought a suit against the Company of Sofia
and Bulgaria for the sum of 82,380,577.08 leva, the particulars of the claim
being as follows :
The Regional Court of Sofia is prayed to adjudge that the Electricity
Company of Sofia and Bulgaria must pay to the Great Municipality of the
Capital:
(a) The excise . duty irregularly collected from July 1st, 1925, to April
1st, 1937, amounting to a total of 66,754,344.15
(b) Sums irregularly collected for electric current consumed during the
period January 1st, 1936, to April 1st, 1936 960,740.93
(c) Sums irregularly collected for electric current consumed during the
period April 1st, 1936, to April 1st, 1938
6,483,762.00
(d) (Legal) Interest at 8 % on the sums set out under heads a, b and c from
March 16th, 1938, to the date of institution of proceedings 8,161,730.00
Total, leva _____________
82,360,757.08
(e) Interest at 8 % on the sum claimed, namely 82,360,577.07 leva, from this
date until final payment has been made.
(f) Costs.
In support of its claim, the Great Municipality of the Capital has produced
copies of the judgment rendered by the Court of Appeal, No. 70 of March
27th, 1937, in civil action No. 38/937, and of the judgment rendered by the
Supreme Court of Cassation, No. 177 of March 16th, 1938, in civil action No.
678/38 of the Second Civil Section.
Here follow the signatures of the President and Secretary accompanied by the
seal of the Regional Court of Sofia, duly legalized by the Ministry of
Justice and by the Ministry for Foreign Affairs and Public Worship.
Certified correct translation.
(Signed) P. Ivanoff.
Seen at the Royal Ministry for Foreign Affairs and Public Worship for the
legalization of the above signature affixed by its Dragoman M. P. Ivanoff
(No. 978). - Sofia, September 12th, 1939. = Secretary of the Consular
Department : (Signed) [illegible]. - Dragoman-Cashier : (Signed)
[illegible]."
[21] Whereas this action which has thus been brought as demandant by the
Municipality of Sofia against the Company constitutes, according to the
above-quoted statement made on July 27th, 1938, by the Agent for the
Bulgarian Government himself, the [p199] precise course to be adopted by the
said Municipality in order to obtain payment of the sums claimed by it from
the Company and thus to enable it to resort to measures of compulsion ;
[22] Whereas according to Article 41, paragraph 1, of the Statute,
"The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken
to reserve the respective rights of either party";
[23] And whereas, according to Article 61, paragraph 4, of the Rules,
"The Court may indicate interim measures of protection other than those
proposed in the request."
[24] Whereas the above quoted provision of the Statute applies the principle
universally accepted by international tribunals and likewise laid down in
many conventions to which Bulgaria has been a party - to the effect that the
parties to a case must abstain from any measure capable of exercising a
prejudicial effect in regard to the execution of the decision to be given
and, in general, not allow any step of any kind to be taken which might
aggravate or extend the dispute ;
[25] Whereas, in this case, present conditions and the successive
postponements and resulting delays and, finally, the action as demandant
above mentioned, justify in the view of the Court the indication of interim
measures calculated to prevent, for the duration of the proceedings before
the Court, the performance of acts likely to prejudice, for either of the
Parties to the case or for the interests concerned, the respective rights
which may result from the impending judgment ;
[26] FOR THESE REASONS,
The Court,
indicates as an interim measure,
that pending the final judgment of the Court in the suit submitted by the
Belgian Application on January 26th, 1938,
the State of Bulgaria should ensure that no step of any kind is taken
capable of prejudicing the rights claimed by the Belgian Government or of
aggravating or extending the dispute submitted to the Court.
[27] The present Order has been drawn up in French, the Parties having
agreed that the case should be conducted in that language. [p200]
[28] Done at the Peace Palace, The Hague, this fifth day of December, one
thousand nine hundred and thirty-nine, in four copies, one of which will be
deposited in the archives of the Court and the others will be communicated
to the Belgian Government, to the Bulgarian Government and to the Council of
the League of Nations respectively.
(Signed) J. G. Guerrero,
President.
(Signed) J. Jorstad,
Deputy-Registrar.
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