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2. In case the Arbitral Tribunal finds that such liability exists, what sum should the Royal Government of Egypt in justice pay to the Government of the United States in full settlement of such damages?
The procedure to be followed before the Arbitral Tribunal is fixed in accordance with paragraphs 4 to 8.
After Cases, Counter Cases and Replies in accordance to paragraph 4 had been exchanged between the Governments the Arbitral Tribunal consisting of Mr. Fred K. Nielsen as American Arbitrator, His Excellency Abd el Hamid Badaoui Pasha as Egyptian Arbitrator, and Dr. Walter Simons as Presiding Arbitrator, appointed by both parties, met in Vienna on the 16th November 1931. Briefs of both parties summarizing the arguments they intended to discuss at the hearing were filed with the Arbitral Tribunal.
The exchange of memoirs and briefs had given rise to objections from both sides.
On the one hand, the American Agent had, from the beginning, formulated a written objection against the method adopted by the Egyptian Agent, viz, to give only a translation of the memoirs (Case, Counter Case, and Reply) but not of the supporting evidence. He has also objected, before the beginning of the oral arguments, to the admission of an annex (G) added to the Brief of the Egyptian Agent because, under the rules of the protocol, the Brief could not be supported by new evidence.
On the other hand, the Egyptian Agent had formulated and maintained an objection against the fact that a translation of the American Brief was missing and that, moreover, this Brief, in view of its length and importance, was presented too late. In the hearing of 16th November however both Agents abandoned their objections.
The verbal discussions, with interruptions necessary to make translations of the protocols, lasted from the 20th November until the 22nd December 1931, Ample time was granted to the Agents of both Governments, Mr. Bert
L. Hunt for the American Government and Mr. Linant de Bellefonds for the Egyptian Government as well as their juridical advisers, Messrs. Francis M. Anderson and Joseph E. Davies for the American Government and Mr. Geouffre de La Pradelle for the Egyptian Government, to make their pleadings and answers.
The pleadings were protocolled in the English and French languages.
After an exhaustive deliberation continued during several days the Arbitral Tribunal fixed their decision on the 23rd December as shall be shown hereafter, reserving for the Presiding Arbitrator the task of drafting the motives of the decision.
As a result of the exchange of memoirs, proofs, and briefs and the oral arguments it appears that the two questions put to the Arbitral Tribunal implicate a great number of controversial points which may be grouped as follows:
A. The American Government reproaches the Egyptian Government with the following:
I. The different Egyptian judicial authorities have caused severe moral and material damage to the American citizen George Salem by illegal and partial treatment and by excessive delay in juridical proceedings, that is to say :
1. The Deputy Prosecutor Bishay has contravened the law in taking a protocol on the 27th October 1917 from Goubran Salem, a dying man who was unable to depose; his signature was forged and the rules for drawing up a protocol were violated.
2. The Egyptian authorities, contrarily to the law, assisted the Persian consul general in arresting and prosecuting George Salem.
3. Prosecutor Ibrashy Bey has acted unduly as follows:
(a) He arrested Salem, a well-known and respectable person, and submitted him to the Bertillon process.
(b) The investigations against Salem for forgery were continued for months in spite of obviously insufficient proofs.
(c) He asked Seoudy, who was not registered at the law courts as an expert, to give his opinion with regard to the genuineness of the signature of Goubran Salem on the deed of the 26th January 1917.
(d) He summoned Salem for trial before the criminal court in spite of the obvious errors and paralogies of Seoudy's opinion.
4. The Egyptian administration of justice is responsible for having allowed a system of investigation according to which the prosecutor acts in the same case as accuser, as investigator, and as judge committing the accused for trial. This is beneath the standard of international law.
5. The president of the criminal court at Mehalla, Fayek Bey, refused the objection of Salem and of his defendant Nassif to the competence of the court and the application to adjourn the hearing; in doing so, he acted in a passionate and partial way and contrary to law.
6. The Criminal Court of Appeal at Tantah has delayed for many months, without any reason, the hearing and decision relating to the question of its competence.
7. The Egyptian judicial authorities made Salem deliver his documents by menace of compulsion and have retained these without any legal reason and in face of the repeated protests of Salem, his counsel, and the American Diplomatic Agency.
8. The Mixed Court at Cairo has, on obviously false grounds, refused as inadmissible the action of Salem for damages against the Egyptian Minister of Justice.
9. The representative of the Parquet at the Mixed Court of Appeal at Alexandria, the former Judge Fayek Bey, has again marked Salem as a forger and prejudiced the law court against him by a preconceived opinion, although Salem was legally exonerated by the competent American consular court from the charge of forgery.
10. The Mixed Court of Appeal at Alexandria has pronounced a sentence on the merits of the case although the counsels of both parties had agreed only to plead the question of admissibility of the action and in spite of the fact that the counsel for Salem had no opportunity to produce his proofs of the faults of the judicial authorities or of the damage consequently incurred; moreover, the court has dismissed the action by means of obviously insufficient and false arguments.
II. The Egyptian native jurisdiction and the Egyptian Government have violated, through the criminal proceedings against Salem, the treaty rights which are due to the United States as a capitulatory power in virtue of the treaty of 1830 between them and Turkey (par. 5) and the practice of international law of capitulations.
1. The Egyptian judicial authorities had no right to open criminal proceedings against Salem at all. Even if Salem lost for a time the right of diplomatic protection by the United States he has not ceased to be under American jurisdiction in criminal cases.
2. The criminal court at Mehalla, on account of the certificate of the American consul attesting that Salem was an American citizen, should have declared on the 2nd November 1919 its lack of jurisdiction. The absence of the formality of legalization of the certificate was remedied by the telegram of the Minister of Justice to the Parquet at Mehalla and this telegram was presented to the court.
3. The Court of Appeal at Tantah should also have declared its incompetence after the presentation of the legalized certificate of the American consul general attesting Salem's American right of citizenship but it delayed giving a decision, without any reason, for many months.
4. The Egyptian judicial authorities were obliged to return Salem's documents which were illegally in their possession as soon as they had the proof of Salem's rights as an American citizen, and at the latest when the American consular court discontinued the proceedings against Salem for forgery.
In spite of this fact they refused to deliver up the documents until the 29th April 1922 although they were claimed several times by Salem, his Counsel Nassif, and the American Diplomatic Agent.
III. To prove the claim for compensation the American Government states as follows:
1. The reproach of forgery which was laid on Salem the whole time from the beginning of 1918 until 1921 and which was repeated by the prosecutor Fayek Bey before the Mixed Court of Appeal, has caused severe prejudice to his reputation. The struggle for his rights which was continued for years has damaged his health severely and permanently. The American Government estimates the damage at 10,000 Egyptian pounds.
2. By the retention of the documents which constituted his title to a portion of the estate of Goubran Salem, George Salem was prevented from selling considerable parts of the estate to solvent purchasers and who were willing to pay at the time when its value was highest, namely, during the years 1919 and 1920. The value of cotton land had decreased by the time the documents were returned. In consequence there was a loss of 64,009 Egyptian pounds. To this sum are [sic] to be added 8 percent interest for the time from 1920 until 1932, amounting to 60,440 Egyptian pounds; total 124,449 pounds.
3. For 15 years George Salem has lost time fighting for his rights, which he could have employed otherwise. In consequence he has lost a profit of 10,000 Egyptian pounds and 4,500 interest at 8 percent for an average period of 71⁄2 years; total 14,500 pounds.
4. In consequence of the illegal conduct of the Egyptian Government Salem has had travelling expenses amounting to 5,104 Egyptian pounds and 9 percent interest for an average period of 6 years= 2,449 Egyptian pounds; total 7,553 pounds.
5. For attorneys' fees he has had to pay, up to 1922, 5,596 Egyptian pounds; to this add 9 percent interest for 10 years-4,476 Egyptian pounds, the total coming to 10,072 Egyptian pounds.