Mixed Courts are to be regarded as international arbitral tribunals, and that therefore no further arbitration proceedings can be opened against the decision of these courts. Now it must be admitted that the Mixed Courts have no exclusively national character; if they were instituted at the instigation of the Egyptian Government and by the indefatigable work of the great Egyptian statesman Nubar Pasha, they are with regard to their organization and to the laws which they have to apply the result of agreements concluded with the capitulatory powers. Moreover, they have a sort of international character because the majority of the members of these law courts, in accordance with these agreements, must be foreigners. Experts of the Egyptian mixed jurisdiction, among them official representatives of the American Government, have emphasized the international character of the Mixed Courts. For instance, the American representative in the International Commission which was established in 1880 after the expiry of the first 5-years' period of the Mixed Courts stated in a report to his Government that these law courts are more an international than a national institution (see Brinton, The Mixed Courts of Egypt, p. 18, note 12). A similar appreciation of their character was given by Sir Malcolm McIlwraith, British Judicial Adviser to the Egyptian Government for many years. This the

appreciation has also found many adherents among

authors writing about the mixed jurisdiction.

The Arbitral Tribunal, however, cannot formally accept this appreciation. All the judges of the Mixed Courts were appointed by the Khedive and are at present appointed by His Majesty the King of Egypt; without any exception they receive their salaries from the funds of the Egyptian Government. The law according to which the Mixed Courts give their decisions as well as their rules of organization are issued as national laws. The Egyptian Government always claimed a certain freedom as regards the appointment of judges. This attitude appeared most clearly when the American Government

claimed that among the members of the Mixed Courts American citizens should be of a larger number than as at present. In a note of 16th May 1926 (see annex 155 of the American Counter Case, pp. 650ff.) the Egyptian Ministry of Foreign Affairs wrote as follows:

If the Egyptian Government has agreed with some Powers to select a certain number of judges among their subjects, its own right of free selection of candidates for the rest of appointments has often been acknowledged.

In fact the Great Capitulatory Powers, formerly seven and at present four (France, Great Britain, Italy and the United States of America) are each entitled for themselves to a member (Councillor) of the Mixed Court of Appeal and later on the Egyptian Government has granted to each of them the right to the place of a judge of first instance. In certain cases the Egyptian Government has also granted in like manner to other Capitulatory Powers the right of having appointments either of one councillor and one judge or two judges of first instance. But beyond these limited measures the Egyptian Government always reserved their [sic] right to select freely among all Capitulatory Powers and even Noncapitulatory Powers for the rest of existing or still to be created positions of judges at the Court of Appeal and at the Courts of first instance.

In this respect the Egyptian Mixed Courts differ fundamentally from the so-called Mixed Arbitral Tribunals which have been instituted by the Allied Powers in the treaties of peace with Germany and its allies for the purpose of settling disputes caused by the Great War; they differ likewise from the Mixed Claims Commission instituted between the United States of America and Germany by the treaty of 1922. The decisions of the Mixed Courts of Egypt are no[t] international decisions but are issued in the name of His Majesty the King.

This however would not exclude the fact that the capitulatory powers in concluding the conventions about the institution of the Mixed Courts have abandoned the diplo

matic settlement of claims of their subjects, in favour 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. That this was indeed the intention of the Egyptian Government and of the capitulatory powers when instituting the mixed jurisdiction is proved by a series of essential facts. In the famous memorandum submitted to the Khedive Ismail by Nubar Pasha wherein he introduced his action for the Mixed Courts (cf. Testa, Recueil des traités de la Porte Ottomane avec les puissances etrangères, vol. VIII, p. 355; Rapport de Nubar Pascha à S.A. le Khedive, 1867), reference is made to the disastrous effects in the international relations of this country through the increase of diplomatic disputes regarding the violation of the rights of foreigners in Egypt. The abolition of these diplomatic disputes was indeed to the advantage of Egypt as well as of the foreign powers and their representatives in Cairo, as has been acknowledged by many a representative in the commission negotiations and in the reports sent to their governments. It is a fact that such diplomatic claims have ceased after the institution of the Mixed Courts; the settling of foreign claims for violation by Egyptian authorities of acquired rights has generally passed to the Mixed Courts.

The fundamental idea of the interested governments at the time when they undertook the Reform of the Egyptian Judiciary during the years from 1873 to 1876 is most characteristically shown by the following fact: In accordance with part I, paragraph 40, of the Règlement d'Organisation Judiciaire the new laws and the new organization of the courts have no retroactive effect. In consequence all disputes which were pending at the time when the Judicial Reform came in force, viz, on the 1st of January 1876, fell under diplomatic settlement. In spite of this the capitulatory powers by special agreements with the Egyptian Government have transferred a

great number of such disputes to the Mixed Courts or to special commissions formed by their members. In this way the mixed jurisdiction, acting as a real international arbitral jurisdiction, settled in the first years of their existence many hundreds of diplomatic disputes (see Brinton, l.c., pp. 51, 52).

These facts prove that the mixed jurisdiction in Egypt bears different character to the other national courts among the members of which are foreigners and which are instituted for disputes between natives and foreigners, as has been the case in Turkey and Siam. From the attitude of the powers it can be seen that they regard the mixed jurisdiction instituted with their consent and partly composed of judges of their respective nationalities as a substitute or compensation of their former right to raise claims for damages on account of the treatment of their subjects in Egypt by the diplomatic channel.

The Agent of the American Government before the Arbitral Tribunal declared it impossible that the American Government in consenting to the Egyptian Judicial Reform would have intended to abandon one of their most important rights of sovereignty, the right to defend their citizens against a foreign power. The Arbitral Tribunal cannot admit such an impossibility. The American Government pointed out in their memorials that they joined the Judicial Reform of Egypt nine months after it came in force so that they were not engaged at all in its institution. Apart from the fact that the American representatives were busily engaged in the commission for preparing the Reform (cf. Brinton, The American Participation in the Foundation of the Mixed Courts, in the Livre d'Or, p. 73ss.; idem, The United States and the Mixed Courts, appendices H and J of the above-mentioned work on the Mixed Courts of Egypt, pp. 385-395) this belated adherence cannot cause a difference in the relations between the respective capitulatory power and the Judicial System of the Reform in Egypt.

It must therefore be assumed that on transferring the competence for such claims to the Mixed Courts both parties, the capitulatory powers and Egypt, took upon themselves a certain risk: the capitulatory powers took the risk that the Mixed Courts can decide against them without their having the opportunity to keep open the diplomatic way for settling the claims of their nationals and the Egyptian Government took the risk that the Mixed Courts would consider the foreign interests before Egyptian interests, the foreign judges being in a majority, and that they often would decide for that reason against the Government.

On that account the Arbitral Tribunal is inclined to accept the general view of the Egyptian Government. In this case however the American Government seems to have insisted tenaciously that the Arbitral Tribunal instituted by the protocol of January 20, 1931, should examine Salem's claim on its merits in spite of the objections raised by the Egyptian Government. This request which is clearly pointed out in the above-mentioned notes of the American Minister has indeed been objected to by the Egyptian Government with the same insistance; but the ambiguity in article 3 as regards this point which the Egyptian Government declared having disappeared may in fact be considered as still subsisting. In these circumstances the Arbitral Tribunal believe it to be their duty to make an exception in the Salem case and to go into the merits of his claim without taking into consideration the decisions of the Mixed Courts at Cairo and Alexandria.

Besides, the objections of the Egyptian Government would only concern one part of the American claims, namely, that part which refers to the damages of George J. Salem, but not that part that is based on the alleged violation of an international treaty, viz, the violation of the judicial prerogatives of the United States in all criminal cases in which their citizens are mixed up in Egypt. This claim is not a private one which the Government only takes up diplomatically in the interest of one of its