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an American citizen may be taken at the coming session of the Court on March 12th.

The Agency would consequently appreciate the Ministry's apprising the appropriate departments of the Government as suggested, prior to the above-mentioned date.

Thereon the British General Director of the Ministry of Foreign Affairs, Mr. Greg, wrote on the 6th of March to the legal adviser of the Egyptian Government to inquire as to the exact position of the case against Salem in the courts, and on the 7th he wrote to the deputy manager of the American Agency, Mr. Gottlieb, asking him to make sure that the Persian Diplomatic Agency in Cairo had withdrawn their claim to treat Salem as a Persian subject. (Cf. American Case, annex 4, exhibit T (2), p. 83; Egyptian Case, annex A, p. 86.)

Mr. Gottlieb replied on the 9th of March he trusted that the Tantah court might be duly apprised of Salem's standing before March 12th, in order that his interest might not be prejudiced by any action of the court subsequent to that date. (Cf. American Case, p. 81; Egyptian Case, annex A, p. 87.)

Before receiving this letter, viz, on the 8th March, the Egyptian Ministry of Justice wrote to the general prosecutor that George J. Salem should be treated as an American citizen, adding that the Ministry of Justice had been fully informed to this purpose and that, consequently, it seemed advisable to declare the incompetence of the native courts in the criminal case against Salem. (Cf. Egyptian Counter Case, annex F, p. 50.) At the hearing of 12th March, the prosecutor put the motion accordingly and through a decision of the same day, the court declared its incompetence to proceed against Salem and adjourned the proceedings against his co-accused. Against these the process was continued. (Cf. Egyptian Case, annex A, p. 88.)

It follows of [sic] all these facts that the law courts as well as the administrative authorities of Egypt, from the moment the permanent status of Salem was clearly established by the American Government, have done everything necessary to acknowledge and guard the treaty rights of the United States.

6. The American Government consider it however a special violation of the treaty that the documents which Salem had put at the disposal of the Parquet in his criminal case were not returned to him or to the American Agency immediately after the issue of the certificate of 19th October 1919. But as long as the proceedings against Salem were pending at the native courts, the retention of the documents containing the very evidence in the case cannot be regarded as a failure of the Egyptian authorities any more than the continuation of those proceedings itself. The numerous petitions which were sent during that period by Salem and Me. Nassif to the different Egyptian or British authorities met therefore with a legal refusal.

The situation, however, changed as soon as the second court had declared the incompetence of the native jurisdiction to proceed against Salem. At this moment two competing judiciary powers were opposed to each other; the native jurisdiction with regard to the co-accused of Salem and the American consular jurisdiction with regard to Salem himself. The claimed documents were the evidence in both cases. The question therefore arises whether one jurisdiction, according to the principles of international law, has the precedence before the other. Such a precedence cannot be derived from international rules. Generally speaking, the native and the consular jurisdiction are, each in its own sphere, in the position of perfect equality of rights. But if both have to be exercised in the same criminal case, conflicts are inevitable.

Now, the mixed legislation provides a method of procedure for settling such conflicts between the mixed and the consular jurisdiction (cf. Règlement d'Organisation Judiciaire, tit. II, arts. 22-25); for the conflicts between the native and the consular jurisdiction there is no such legal method. In consequence the Arbitral Tribunal cannot regard it as being against international law or as justifying any liability on the part of the Egyptian Government that the Egyptian authorities have hesitated to return the documents, all the more since finally they counted on a speedy settlement of the criminal proceedings against the co-accused of Salem. The American Gov

ernment is of opinion that the Egyptian authorities were bound to return all the documents which they received from Salem, at the latest, as soon as his American citizenship was decided. The Arbitral Court would agree to this view if the retention of the documents had been in itself an infringement of the capitulatory rights of the United States. In this case it would have been immaterial whether the documents were still required in a native criminal process, or whether the American Agency had asked for their return or not. But as explained above, the native authorities had the right to seize the documents in 1917, and therefore the later action of the Egyptian authorities in using these for the purpose of criminal proceedings against Salem's co-accused was not illegal. In any case they were not bound to return the documents, as both Salem and the American Agency at first requested, to Salem himself.

As soon as the American Minister informed the Egyptian Minister of Foreign Affairs Sarwat Pasha of the purport of the request, viz, to use the documents for proceedings against Salem in the consular court, the Egyptian authorities returned the documents immediately and with all possible dispatch even just before the final hearing at the criminal court of Mehalla as regards the other accused persons.

7. The American Government raises most ardent complaints against the proceedings before the Mixed Courts at Cairo and Alexandria concerning Salem's action for damages. The representative of the Parquet, the former judge Fayek Bey, and the courts themselves are said to have shown partiality against the plaintiff and to have warped justice in an obvious


As far as the above-mentioned reference of the Prosecutor Fayek Bey to the forgery which Salem was charged with is concerned, the Arbitral Tribunal is likewise far from approving this language. However it must be taken into consideration that the decree of discontinuance issued by the American consul general in the case of Salem did not legally affect the proceedings which were pending at the same time against the co-accused before the native courts, and that Fayek Bey was irritated by the charge of forg

ery which Salem's solicitor had repeatedly levelled against the former deputy prosecutor Bishay, a member of the Parquet like Fayek Bey himself. Besides, it cannot be proved that this remark of Fayek, quickly modified as it was, did influence the court.

The decisions of the Mixed Courts cannot be examined by the Arbitral Tribunal in the same manner as a higher court is entitled to do with regard to decisions of lower courts. It is possible that the Mixed Court at Cairo was in error in applying paragraph 776 of the Code Civil Mixte, and that the Mixed Court of Appeal at Alexandria in dismissing the claim as not well founded in spite of the fact that this part of the litigation had not been pleaded, did employ terms which went beyond its real meaning. Such errors in judgment cannot be regarded as a denial or a warping of justice in the sense of international law. The principle of division of powers must be maintained also in international arbitration; it implies that as a rule the validity of judgments issued by competent law courts is acknowledged. In consequence international law has from the beginning conceived under the notion of "denial of justice" forming base of political claims only exorbitant cases of judicial injustice. Absolute denial of justice; inexcusable delay of proceedings; obvious discrimination of foreigners against natives; palpable and malicious iniquity of a judgment-these are the cases which, one after another, have been included into the notion of "denial of justice". If the American theory and practice seem inclined to extend this notion, the Arbitral Tribunal cannot follow this example. (Cf. The Research Work of the Harvard Law School, cited above, pp. 174ff., Borchard, The Diplomatic Protection of Citizens Abroad, pp. 330, 335.) As a rule, a foreigner must acknowledge as applicable to himself the kind of justice instituted in the country in which he did choose his residence including all deficiencies of such jurisdiction, imperfect as it is like every other human work.

It must be added that in the opinion of the Arbitral Court, the Egyptian Government cannot be made responsible at all for such errors of the mixed jurisdiction. The Arbitral Court has already pointed out

that this jurisdiction was instituted and is continued not only through the will of the Sovereign Egyptian State, but by conventions concluded with the capitulatory powers. Both parties, by executing these conventions in form of corresponding national legislations, made a sacrifice of their sovereignty; the capitulatory powers resigned a part of their jurisdictional prerogatives on Egyptian territory by waiving for a time the civil jurisdiction of their consuls; the Egyptian Government resigned likewise a part of their jurisdictional sovereignty by undertaking to let themselves be judged in civil cases, especially in cases for alleged violation of foreigners' rights on the part of Egyptian authorities, by a court composed of a majority of foreigners. If the Mixed Courts are at fault the Egyptian Government is unable to prevent the repetition of such faults; they can neither remove the judges nor punish them by disciplinary actionthis action is reserved to the Mixed Court of Appeal-nor can they modify the laws in accordance to which the court is composed and has to decide its cases. None of these measures could have been taken during the period provided by the international conventions for the functioning of the mixed jurisdiction without the consent of the capitulatory powers. (Cf. Règlement d'Organisation Judiciaire, tit. III, art. 40.)

The responsibility of a state can only go as far as its sovereignty; in the same measure as the latter is restricted, that is to say as the state cannot act in a free and independent manner, the liability of the state must also be restricted. Consequently the alleged denial of justice committed by the Mixed Courts cannot be brought forward against Egypt as a cause of complaint neither to support the claim made in the name of George Salem nor to prove the alleged violation of the treaty rights of the United States.

For these reasons the Arbitral Tribunal thinks it useless to examine how far the contested arguments of the American Government have been proved regarding the damage which is alleged to have been caused to George J. Salem by the criminal proceedings and by the retention of his documents.

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