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But neither the documents presented nor the declarations of George Salem and his counsel are sufficient to destroy the evidence resulting from the official attitude of the Egyptian Government and the Persian authorities. In view of this attitude the Arbitral Tribunal is the less in a position to deny Salem Persian nationality as in the present proceedings the Persian Government is not represented and is in consequence unable to vindicate its right to claim Salem as its national.

It is beside the point to ask whether Salem lost his Persian nationality or not by the acquisition of American nationality. Paragraph 7 of the Persian law relating to nationality is interpreted differently by both contending parties. According to the Egyptian version it would appear that, in virtue of Persian law, a Persian subject can only acquire a foreign nationality with the consent of his own Government; according to the American version paragraph 7 says that a Persian subject loses his nationality by unauthorized emigration, but that, in case of his return to Persia, he will be regarded as a Persian subject and will be punished for his emigration. Whatever may be the true interpretation, the Egyptian Government cannot set forth against the United States the eventual continuation of the Persian nationality of George Salem; the rule of international law being that in a case of dual nationality a third power is not entitled to contest the claim of one of the two powers whose national is interested in the case by referring to the nationality of the other power. (Cf. MacKenzie v. Germany, 1922, Opinions of the Mixed Claims Commission, United States and Germany, p. 628.)

B. As it has been ascertained that the American Government has the right to support George Salem as their citizen against the Egyptian Government we must now consider the question whether the claim based on this right can be invalidated by the Egyptian Government through other objections.

I. First the Egyptian Government takes exception to the claim in pointing out that Salem did not ex

haust the national legal means which were at his command and that therefore his claim could not yet be urged through diplomatic steps. The American Government replies that this objection can no longer be lodged since by the arbitration agreement exclusive jurisdiction as regards the claim for damages in question is assigned to this Arbitral Tribunal.

This reply of the American Government however does not prove effective. International arbitral tribunals have repeatedly acknowledged that the conclusion of an arbitration agreement involves no abandonment of the claim to exhaust all legal means; for instance see the decision given March 19, 1925, by the American-British Arbitral Tribunal, instituted in accordance with the agreement of 18 August 1910, in the dispute of the Canadian claims to refund paid customs duties, in Nielsen, American and British Claims Arbitration, pages 347ff. The American Government argued that the claimants have 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 British Government pointed out that such objection against the arbitration agreement is not admissible. The Arbitration Tribunal decided:

The submission of the claims to this Tribunal by the Government of the United States constituted no implied waiver and did not operate to take them out from under the ordinary statutory provisions.

However, the rule of exhausting national remedies is not acknowledged by international law as being absolute. The international tribunals which had to deal with this objection have judged it in accordance with the circumstances. The practice of the international tribunals and of the Government of the United States is detailed in the work of the Harvard Law School (Research (Research in International Law, Nationality, Responsibility of States, Territorial Waters, Cambridge, Mass., 1929) on pages 153–156. (Edwin M. Borchard, Theoretical Aspects of the International Responsibility of States (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht),

1929, Bd. I S. 223ff., 242ff.) In this case it must be considered that the recours en requête civile is no regular legal remedy but intends to reopen a process which has already been closed by a judgment of last resort. As a rule it is sufficient if the claimant has brought his suit up to the highest instance of the national judiciary.

On the other hand, the Egyptian Government, by constructing the judgment of March 26, 1926, in another sense than the American Government, seem not to be without doubt if the Mixed Court of Appeal did indeed judge ultra petita, even if it had to be admitted that to decide a claim that has not been pleaded as to its merits would mean the same as to decide a claim that was not brought forward at all. As to the American Government, they seem to be impressed by the final statement of the court that its decision puts an end once for all times to all claims brought forward by George Salem in his action, and therefore to think that Salem could not reasonably entertain any hope of obtaining a better result by means of the recours en requête civile.

In presence of these mutual doubts, the American Government did formulate special conditions in order to secure better chances of a favourable issue of the recours. The Egyptian Government feeling unable to accept those conditions, the negotiations concerning this point failed. Under these circumstances and in view of the fact that this Arbitral Tribunal is bound to decide in equity we are of opinion that the objection made to the claim of the American Government and purporting that Salem did not exhaust all legal means at his disposal under the mixed law of Egypt is not well founded.

II. Further the Egyptian Government points out that the claim cannot be dealt with by diplomatic means and by the Arbitral Tribunal, because under the agreements made between Egypt and the capitulatory powers in the year 1873 and the following years the decision of such claims is reserved to the exclusive jurisdiction of the Mixed Courts. The American Government replies that this objection is inadmissible in view of the plain wording of

the protocol of January 20, 1931, because the protocol determines in article 3 the competence of this Arbitral Tribunal to decide the claim. Against the view of the American Government the same arguments used in the discussion of the question of the American citizenship of Salem can be employed. As for the exclusive competence of the mixed jurisdiction for Salem's claim, the point was likewise discussed in the preliminary negotiations between the American legation and the Egyptian Government which led to the arbitration agreement.

In the note of March 20, 1930, the Egyptian Minister of Foreign Affairs declares (annex C, p. 61):

It is the view of the Egyptian Government that their international liability cannot be engaged by judgments of the Mixed Courts which exercise the jurisdiction regarding foreigners in Egypt.

On the 14th May 1930 the American Minister replied (annex C, p. 62):

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My Government contends that the Egyptian Mixed
Courts are for all intents and purposes municipal
courts in so far as concerns actions by or against for-
eigners
My Government has directed me
to say that while it has no objection to meeting these
technical defenses if urged by the Government of
Egypt, it assumes that the Egyptian Government is
desirous of speedy disposition, on its merits, of the
real questions at issue and that regardless of tech-
nical points at issue it shall still be the duty of the
Arbitral Tribunal to decide the case on its merits. My
Government would be pleased to be informed whether
it is correct in this assumption.

The Minister of Foreign Affairs replied in his letter of July 3, 1930 (annex C, p. 65):

The Egyptian Government does not regard these questions as mere technical defenses; they represent one of the most important elements of the dispute which has arisen between the two Governments and accordingly of the arguments which must be pleaded before the Arbitral Tribunal.

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The American Minister acting on special instructions of his Government kept to the proposed wording of article 3 and declared as follows (note of 17th July 1930, annex C, p. 68):

My Government considers that article, as proposed, eminently fair to the Royal Egyptian Government and could only view any change limiting this general question by technical definitions of the elements composing it as tending to thwart the purpose of the two Governments to bring about a thoroughly just and fair adjudication of this troublesome question.

The American Minister confirmed this version of article 3 in his letter of November 17, 1930 (annex C, p. 74); in the letter of 30th December 1930 (p. 78) the Egyptian Minister of Foreign Affairs agreed in the following words:

Happily the terms of the letter of Your Excellency dated 17th November make disappear any ambiguity as to the sense and importance of Article 3. Therefore the Arbitral Tribunal must examine if the objection of the Egyptian Government is well founded.

2. The competence of the Mixed Law Courts of Egypt for passing judgments on claims of foreigners against the Egyptian Government is based on paragraphs 10 and 11 of the Règlement d'Organisation Judiciaire pour les Procès Mixtes en Egypte agreed upon between Egypt and the capitulatory powers. Under paragraph 10 all lawsuits between the Egyptian government and foreigners belong to the jurisdiction of these courts. Paragraph 11, no. 3, provides that the Mixed Courts "are not entitled to construe an act of administration or delay its execution but they are competent to decide on injuries. done by such acts to acquired rights of a foreigner recognized by treaties, laws or conventions."

The above-mentioned rules admit the competence of the Mixed Courts to decide such claims as brought forward in the case of Salem; but is this competence an exclusive one? The Egyptian Government states indeed that the

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