Imagini ale paginilor

6. By reason of attorneys' fees from 1922 up to date, i.e., for 10 years, including this arbitration, Salem has had to pay 34,000 Egyptian pounds.

7. According to the decision of the American Congress the Government of the United States has to deduct from the amount of the award the amount expended by the Government in this arbitration; this would not have happened but for the illegal conduct of the Egyptian Government; the claim is therefore increased by the amount of these expenses, viz, by 10,200 Egyptian pounds.

IV. In support of their complaints on the illegal conduct of the Egyptian Government, the American Government refer especially to the numerous affidavits of George J. Salem and his counsel Me. George Nassif.

B. To these arguments of the American Government the Egyptian Government answer as follows:

I. On the first hand they contest the right of the American Government to bring forward Salem's claim.

1. In their opinion, Salem, as shown by numerous evidences, never had the intention to settle forever in the United States when he was naturalized on the 18th of December 1908, but only to ensure for his Egyptian interests the protection of a capitulatory power. His repeated voyages to America were undertaken for no other purpose than to prevent the threatened loss of this protection or to regain the already lost protection. Salem procured likewise the passport of the 18th September 1919 by tricks and false affidavits. His right as an American citizen was only acquired by fraud, was regained by fraud, and cannot therefore be regarded as legal by the Arbitral Tribunal.

2. Even if Salem's American nationality was admitted the question of double nationality arises. As Salem stated himself he was an Egyptian subject (local subject) before he was naturalized; afterwards in his relations with the Egyptian authorities he always declared himself to be an Egyptian subject whenever the American protection was refused to him. In cases of double nationality the international judge

must, in the opinion of the Egyptian Agent, ascertain which nationality must be regarded as effective and most suitable to the conditions of the life of the claimant. In this case Egyptian nationality must prevail because Salem lived chiefly in Egypt, because he had his social and economic interests there and because he accepted there some public positions.

3. The Persian nationality as asserted by George Salem and acknowledged by the State Department in 1913 could not be considered by the Arbitral Tribunal to be lawfully acquired.

(a) Salem himself stated in a letter of September 17, 1918, to the Judicial Adviser of the Egyptian Government, Sir M. S. Amos, that his father Joseph and his uncle Goubran had acquired Persian nationality by fraud, that they really were Syrians and had purchased Persian protection in Egypt by paying 40 Egyptian pounds each.

(b) This fact was stated likewise by Salem's counsel Me. Nassif during the different lawsuits between George Salem on the one side and sometimes the physician Dr. Gahel, sometimes Mr. Isfahani on the other side, before the Mixed Courts of Egypt.

Nationality acquired by such means need not be acknowledged by the Egyptian Government.

II. But even if the title of the American Government to bring forward Salem's claim should be acknowledged the claim itself seems inadmissible to the Egyptian Government.

1. In their opinion the claim fails for the reason that the Mixed Courts are alone competent to deal with claims for damages such as that put forward by Salem and that in these cases the diplomatic method is excluded, as may be seen from the genesis of the Egyptian Judicial Reform. The Mixed Courts were created by an agreement between Egypt and the capitulatory powers for the special purpose of founding an international jurisdiction for foreigners instead of the old practice according to which the Egyptian Government did not allow [itself] to be sued by for

eigners for such claims before native courts and therefore every claim had to be submitted to diplomatic intervention, whereby the good relations between the interested countries and Egypt might be complicated and disturbed.

2. If the Mixed Courts be regarded as national, the diplomatic channel and the appeal to the Arbitral Tribunal should be excluded in the Salem case by virtue of international law because Salem has not yet exhausted all national legal remedies. Salem has the right to recours en requête civile against the decision of the Mixed Court of Appeal at Alexandria in accordance with paragraph 264 of the Mixed Code of Civil Procedure, because the Court of Appeal gave a decision on a point of controversy which had not been pleaded. In case Salem would make use of this legal remedy the Egyptian Government has formally undertaken not to object to it by raising the argument that Salem is an Egyptian subject and in consequence the mixed jurisdiction is incompetent.

3. Inasmuch as the claim is based on an alleged denial of justice of the Mixed Courts themselves, it is also inadmissible because the Egyptian Government cannot be made responsible for the functioning of those courts. The organization of the Mixed Courts and the law they apply are based on international agreements; if all the judges are formally appointed by the Egyptian Government the foreign judges form the majority in each Mixed Court and each bench in issuing judgments. The Egyptian Government are bound to ask the powers whose nationals have to be chosen to designate the judges. III. The conduct of the Egyptian authorities gives no reason for complaint.

1. As far as the complaints of the American Government are based on the affidavits of George J. Salem and Me. George Nassif, these proofs could not be admitted. They are partial statements of the claimant himself and of his counsel made extrajudicially in outside legal proceedings and without the possibility of cross-examination; in consequence they are inadmissible before the Arbitral Tribunal when they are in favour of the claimant.

2. The other means of evidence show no violation of law, denial of justice, or faulty delay by the native jurisdiction to the prejudice of Salem. All laws and rules in force have been observed by all authorities in question. The delay in the proceedings of the Criminal Court of Appeal is explained by the circumstances.

3. The judgments of the Mixed Court at Cairo and the Mixed Court of Appeal perhaps contain juridical errors upon which however a claim could not be based even if Egypt was responsible for these courts.

IV. The Egyptian Government did explain repeatedly to the American Government that it was far from their thoughts to evade their contractual duties with the United States. No such reproach can be levelled against the Egyptian authorities.

1. When the criminal proceedings against Salem were opened he was no longer under American protection; now with regard to the question of territorial jurisdiction the notions of foreign protection and foreign jurisdiction are identical. This is proved by the fact that when the Egyptian authorities presented to the American consul general certain documents in order that he might prosecute Salem the consul general returned the documents with the remark that Salem was no longer inscribed in the consular register as an American citizen.

2. According to the practice of the capitulations and according to the rules in force for the Egyptian judicial authorities proceedings which have been legally opened before the native law courts must be brought to an end by themselves, even if the accused acquires the nationality of one of the capitulatory powers during the proceedings. In consequence the Criminal Court of Appeal at Tantah had no right to declare its incompetence when Salem presented his legalized certificate of American citizenship. This would have been possible only if the American Agent in claiming jurisdiction on behalf of his national had informed the Egyptian Government officially that Salem had never ceased to be an American citizen since 1908. As soon as such a declaration was

made all the Egyptian authorities concerned caused immediately the discontinuance of the proceedings.

3. As he has repeatedly admitted, Salem voluntarily delivered his documents to the Parquet at Mehalla without the least menace of compulsion and with the belief that he was acting in his own interests. The retention of these documents for the purpose of the proceedings was legal. Even after the Criminal Court of Appeal had declared their lack of jurisdiction over Salem there was no need to return the documents as the proceedings against the other accused were continued. At any rate the requests made at first by Salem and by the American Agent to the purpose that the documents should be returned to the owner were inadmissible. Although it cannot be considered as a rule that in a conflict between the native and the consular jurisdiction the latter would take precedence over the other in any stage of the proceedings, the Egyptian Government gave the order to return the documents instantly after the American representative had explained that these were required for the purpose of taking proceedings. by the consular court.

V. As to the claim for damages brought forward by Salem this claim is contested both as to its juridical foundation and as to its alleged amount.

1. The damage which Salem is supposed to have sustained has no connection with the faulty conduct of the Egyptian authorities. The retaining of the certificate of the 26th January 1917 could not have caused any damage to Salem because this certificate was replaced to all purposes by the inheritance agreement of the 7th November 1917. When afterwards the estate of Goubran Salem was divided between the heirs, Salem received other estates than those designated as sold to him by the deed of the 26th January 1917.

2. The claims of Salem are in every way highly excessive.

3. The claim for compensation for an amount which Salem must recognize as legally deducted from the award by the American Government for arbitration expenses is contradictory to paragraph 9 of the protocol of the 20th January 1931.

« ÎnapoiContinuă »