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by domestic law throughout the world. See citations in an opinion in the Cook case in the Arbitration under the Convention concluded September 8, 1923, between the United States and Mexico. Opinions of Commissioners, Washington, 1929, p. 270.
It is unnecessary to cite legal authority to support the statement that contractual rights are property. Long Island Water Supply Company v. Brooklyn, 166 U.S. 685. Without any detailed discussion of this point, I may refer, merely for the purpose of illustration, to the decision in the case of Company General of the Orinoco in the French-Venezuelan Arbitration of 1902, Ralston's Report, p. 244. Umpire Plumley held that Venezuelan authorities made impossible a contract of a French concessionaire to sell its rights to a British Company, and he decided that the sale price agreed upon was a proper measurement of damages, which might be claimed on behalf of the claimant against the Government of Venezuela.
COMPLAINT OF A DENIAL OF JUSTICE BY THE ACTION OF THE MIXED COURT OF APPEAL AT ALEXANDRIA
My associates discussed but briefly the complaints against the Mixed Court of Appeal at Alexandria. It would appear that no treatment of this point is necessary in connection with their decision, since they reached the conclusion that there can be no responsibility for the action of the Court whatever may be the nature of its decision in a litigation instituted by a national of a capitulatory Power. Moreover, if the contention submitted by the Egyptian Government as to the non-admissibility of the suit instituted by Salem in the Mixed Courts is sound, there would seemingly be little or no purpose in discussing the decision of a Court which had no jurisdiction to hear this suit. As I have observed, there seems to be an element of oddity about a proceeding instituted in one set of courts to determine whether another set of tribunals acted in violation of international law or of stipulations of treaties. With reference to this matter, I have referred to the atti
tude of the Egyptian Government, of the Mixed Court of First Instance at Cairo, and the seemingly uncertain language of the Mixed Court of Appeal.
In view of the manner in which these questions are treated in the majority opinion I shall merely refer briefly to some considerations of which it seems to me it is pertinent to take account.
I understand the principal complaint of the United States to be that Salem was not given the opportunity of being properly heard. The case came before the appellate court on an appeal from the decision of the lower court on the question of admissibility. Counsel for both sides apparently had the understanding that this point alone would be decided. The appellate court, as shown by its opinion, recognized this fact, but decided the case on the merits.
I agree generally with the views expressed in the majority opinion as to the reserve with which an international tribunal should approach questions relating to the acts of a national court. However, with reference to objections made by counsel for Egypt to the contentions made by the United States, it may be noted that allegations of denial of justice through judicial action have frequently been made before international tribunals. On several occasions such tribunals have considered contentions as to the impropriety of decisions of the Supreme Court of the United States. Moore, International Arbitrations, Vol. 4, p. 3298, et seq; Rio Grande claim against the United States under the Special Agreement of August 18, 1910, between the United States and Great Britain, American Agent's Report, p. 332. As I have observed, a domestic court cannot give a final, binding interpretation to provisions of treaties or to rules of international law. It therefore may be expected that complaints should be made in cases involving questions of that character, more often than in others concerned solely with questions of domestic law.
I have no specific disagreement with the more or less concrete considerations mentioned in the opinion as illustrations of things of which an international tribunal may
properly take account in dealing with a difficult subject of this character. In addition to matters specified by my associates, I may mention failure of a court to receive and consider important evidence, particularly in a case in which such action would be equivalent in effect to the refusal of a court having jurisdiction to deny an opportunity for proper hearing. See the Morton case in the arbitration between the United States and Mexico, under the Convention of September 8, 1923, Opinions of Commissioners, Washington, 1929, p. 151.
The appellate court appears to have grounded its decision on the pleadings and on contentions with respect to the technical point of jurisdiction. We had before us in the proceedings of this Tribunal a large amount of evidence which it appears was submitted to the Mixed Court of Appeal without being translated from the Arabic. It was intended to have it made available if the case should proceed on the merit. The vast amount of pleadings, accompanying documents, and written and oral arguments submitted by the representatives of the two Governments to this Tribunal show their idea as to what they believed should properly be considered by a court passing upon Salem's complaints. The grievances laid before this Tribunal were the same as those submitted to the Court of Appeal at Alexandria, with the exception of the complaints made against the Court itself. Whether all the materials presented to this Tribunal were necessary for a decision or whether the Court of Appeal had abundant evidence and argument are matters of opinion. In any event, what I have stated in this opinion shows that I do not agree with the conclusions submitted in the opinion of the Mixed Court of Appeal, that the action involving Salem's complaints was "devoid of any serious foundation".
AMOUNT OF AWARD
In the majority opinion are enumerated in detail elements of damages alleged by the United States. These items are not discussed, however, in view of the decision
as to the non-liability of Egypt with respect to all complaints. In dealing with questions pertaining to damages, international tribunals properly apply principles of law common to legal systems of the Nations of the world. Some of the items may be questioned. However, in cases in which there is uncertainty with respect to the precise amount of damage but not with respect to the result of the wrong for which damages are sought, it is proper and useful for an international tribunal to apply principles such as were stated by the Supreme Court of the United States in Story Parchment Company v. The Paterson Parchment Paper Company, et al., 282, U.S. 555. The Court in its opinion referred to the general rule with respect to contingent and uncertain damages and then proceeded to say:
Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise."
The various specific complaints against Egypt were analyzed separately by the United States, and the position was taken that all of them should be considered together, and that thus analyzed they showed a spirit of prejudice and unfairness against the claimant, Salem. The range of questions of law and of fact involved in the charges made is very extensive. I have discussed some of the important points dealt with in the opinion of my associates.
FRED K. NIELSEN
FUBLICATIONS OF THE DEPARTMENT OF STATE OF THE UNITED STATES RELATING TO THE CLAIM OF THE UNITED STATES ON BEHALF OF GEORGE J. SALEM v. THE ROYAL GOVERNMENT OF EGYPT UNDER PROTOCOL OF JANUARY 20, 1931
Arbitration Series No. 4 (1).-Claim of the United States of America on
behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Case, Counter Case, and Reply of the United States. Washington, Government Printing Office, 1933.
Arbitration Series No. 4 (2).-Claim of the United States of America on behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Brief of the United States. In process.
Arbitration Series No. 4 (3).-Claim of the United States of America on behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Case of Egypt and Annexes A-D. Photographic reprint. Washington, Government Printing Office, 1932.
Arbitration Series No. 4 (4).-Claim of the United States of America on behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Counter Case, Reply, and Brief of Egypt, and Annexes E-G. Photographic reprint. Washington, Government Printing Office, 1932.
Arbitration Series No. 4 (5).—Claim of the United States of America on behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Oral Arguments. Not yet available.
Arbitration Series No. 4 (6).—Claim of the United States of America on behalf of George J. Salem v. the Royal Government of Egypt under Protocol of January 20, 1931. Award of the Arbitral Tribunal and Dissenting Opinion of Hon. Fred K. Nielsen. Washington, Government Printing Office, 1933.
[NOTE. Requests for copies of the publications of the Department of State should be addressed to the Superintendent of Documents, Government Printing Office, Washington, D.C., who will furnish a price list upon request.]