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ment that cases should be determined by a just application of law. For a discussion of the connotation of the term "equity" in arbitral agreements see opinion in the Russell case in the arbitration between the United States and Mexico under the Convention of September 10, 1923, Opinion of Commissioners, 1926-1931, Washington, p. 79 et seq.

I think that my associates must have misunderstood entirely the contentions made by the United States in the so-called Canadian Claims for Refund of Duties. It is said that the Government of the United States "argued that the claimants had not exhausted all legal means, which the laws of the United States put at their disposal with regard to the recovery of payments made in excess of the legal duties".

The arbitral agreement of August 18, 1910, under which that case was decided provides by Article III of the terms of submission that "no claim shall be disallowed or rejected by application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to the validity of the claim". The United States, therefore, argued the case entirely independent of the application of that rule. It contended that no "excess" duties had been collected; that such duties as were charged were legal and not illegal or excessive. It invoked the principle of international law with respect to the unquestioned plenary sovereign right of a nation with respect to customs matters. It explained certain statutory provisions of the United States whereby importers may take prescribed steps to object to duties collected by customs officials, and if such steps are not taken, then the rates charged become the legal rates, fixed by Congress. Report of the American Agent, pp. 351–363.

In considering the question as to the application of the general rule in the instant case, it seems to me to be very pertinent that when the claimant, conforming to advice given him by his own Government, presented his case to the Mixed Court of First Instance, the Government of

Egypt, as defendant, contended that the Court did not have a right to hear the case. The Court sustained the contention. And before the Mixed Court of Appeal at Alexandria the Government of Egypt made a similar contention as to the want of power of the Court to take cognizance of Salem's case. I am constrained to regard as odd, and indeed as seemingly implausible, an independent, collateral action (not an appellate proceeding) instituted in one set of local courts to determine whether another set of local courts have violated international law or stipulations of treaties.

The final opinion of the Court of Appeal on that subject may perhaps be considered to leave its holding in some doubt. The jurisdictional provisions of the law are comprehensive in language. And the Court seems to have passed on the merits of the case. I do not see how it could properly do that unless it had jurisdiction. But in the opinion are found the following passages:

"Whereas if it be understood by 'admissibility' the right of Salem to cite real or alleged grievances based on the acts of the Minister of Justice, either of the Minister himself or a Magistrate subject to his orders (in the sense at least that the Parquet represents the executive power and carries out the execution of judgments, constituting a body that is hiearchically organized, having at its head the Minister of Justice, who exercises disciplinary powers over its members, whom he may direct or forbid to exercise public action-see the treatises of Garsonnet and CezarBru and Bonfils) and to ask for an indemnity, if his grievances should be recognized as well founded on the part of the Egyptian Government on account of its instituting against him, a foreigner over whom the native judiciary has no competence, a penal inquiry and for having drawn up a procès-verbal to his prejudice, the case is resolved to a mere suit for damages instituted by a foreigner against the Egyptian Government on account of an administrative act infringing the acquired right of this foreigner derived from his immunity from the jurisdiction; Whereas it appears in this sense that Salem seems to have so understood his action since he textually raises in his summons the fact that the annoyances of which he complains originate

'all from the act and fault of the officials of the Egyptian Government.'

"But whereas in asking that the Salem suit be dismissed as inadmissible the Egyptian Government was itself led to examine into the merits and in fact the abnormal length of the complaint relating at length and by minute details the history of the nationality of Salem, supported by certificates and correspondence between the American and Egyptian authorities and the arguments, both oral and in writing, before the court making it indispensable to examine all the elements in the case in order to reach a decision to the effect that in the meaning apparently desired by the Egyptian Government the action is manifestly inadmissible although properly and more judicially speaking the action being strictly admissible in its form is devoid of any substance in its merits. . .

"Whereas finally and in view of the uncontested circumstances of the case, George Salem was inadmissible to claim anything whatsoever from the Egyptian Government, but if, however, strictly speaking, the action in so far as it aims for an indemnity of an alleged injury, is or could be considered admissible in its form, it is sufficient, nevertheless, to scan the complaint and the statements of the parties with the evidence submitted on both sides to be convinced that this action is devoid of any serious foundation. (Italics inserted) Case of the United States, pp. 283–284, 286.

With regard to the recours en requête civile, it seems to me that an international tribunal may commit itself to a sound principle as to what is an exhaustion of local remedies, when it defines that as a final decision of a court of last resort on litigant's complaint. Account being taken of the ramifications of this subject of local remedies, it seems to be logical to say that an alien need not go so far as to ask such a tribunal to set aside its own final decision. It also seems pertinent to consider the statement of the Court that the decision "puts an end once and for all to all the claims preferred by George Salem ".

I disagree with the conclusions of my associates sustaining the contentions of the Egyptian Government to the effect that the Mixed Courts must be regarded to be international arbitral tribunals, in the sense that there is

no international responsibility for the decisions of those tribunals in cases in which suit may be instituted before them by nationals of capitulatory Powers. These Powers, it is said in the majority opinion, "in concluding the conventions about the institution of the Mixed Courts have abandoned the diplomatic settlement of claims of their subjects, in favor of this national jurisdiction, in all cases in which these subjects can bring forward, according to the règlement d'organisation judiciaire', an action against the Egyptian Government before this Mixed Jurisdiction".

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With respect to the present case, it is pertinent to note that my associates have not held that Salem's suit was one that could be maintained before the Mixed Courts. In their opinion they do not give effect to the rule respecting the requirement of resort to local remedies. The Government of Egypt contended before the lower court and before the appellate court that the suit was not admissible.

I am unable to take the view that courts composed of Judges who are named, paid and pensioned by the Egyptian Government and who apply Egyptian law, are either international or domestic tribunals for whose actions there is no international responsibility, such as is defined by established rules and principles of international law pertaining to a Nation's responsibility for acts of its judiciary.

The fact that the Egyptian Government succeeded in persuading certain Powers having capitulatory rights in Egypt to surrender those rights to some extent, because the Egyptian Government convinced the Powers that it had established tribunals equally or more satisfactory than the extraterritorial consular courts, did not result in creating the Mixed Courts international tribunals.

Nor did the interesting fact that Egypt considered that it might establish local tribunals satisfactory to the Powers by drawing to some extent on the legal profession of other countries result in the organization of a unique form of international or domestic tribunals whose functions effect

the extinction of the well-established rules of international law with respect to intervention and responsibility.

Diplomatic claims grow out of complaints of misconduct of authorities of a Government-administrative, judicial, legislative and military. According to a general rule of law, diplomatic intervention in behalf of aliens is not justified, until redress for complaints against such authorities has been sought through such proper means as a Government may afford. It stands to reason that there should be a progressive diminution of international reclamations as a Nation improves its judiciary. That has evidently happened in Egypt in a gratifying way since the organization of the Mixed Courts.

It seems to me that it may be inaccurate and misleading to cite, as is done in the majority opinion, the work of Judge Brinton as authority for the statement that “the Mixed Jurisdiction, acting as a real international arbitral jurisdiction, settled in the first years of their existence many hundreds of diplomatic disputes".

An international reclamation involves the assertion by one Nation against another Nation of rights under international law or under treaty stipulations and a denial of rights so asserted. A suit instituted before a domestic tribunal, either one of an established character or one temporarily and specially constituted, is not a diplomatic claim. Diplomatic claims are presented by Nations against Nations. On page 51 of Judge Brinton's interesting and valuable work, it is said:

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During their early years the Mixed Courts rendered services of great value to the cause of international justice which did not fall within the strict scope of their judicial duties as defined by their Charter. By a series of separate diplomatic agreements Egypt, at the time of the organization of the system, entered into arrangements with the principal capitulatory Powers, for utilizing the services of the judge of the courts for the adjustment of pending diplomatic claims. Two alternative systems, optional with the claimants, were established. One of them provided for a commission of three members of the Court of Ap

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