Obrázky stránek
PDF
ePub

Bureau of the Permanent Court of Arbitration the cases relative to the aforementioned claims;

Considering that under date of January 26, 1921, the agent of the Government of Peru has regularly deposited in the International Bureau of the Permanent Court of Arbitration the counter-cases and documents relative to the aforementioned claims;

Considering that in conformity with the said compromis the parties have submitted to the Court motions provided with reasons;

Considering that the Court, constituted as stated above, has met at The Hague in the Palace of the Permanent Court of Arbitration on October 3, 1921;

The Arbitral Court,

With regard to Dreyfus Brothers and Company;

Whereas, by contract under date of August 17, 1869, the State of Peru sold to Dreyfus Brothers and Company 2 million tons of guano, the profit of Dreyfus Brothers and Company to result from the resale, for which a monopoly was granted to them in the markets of Europe and its colonies; Whereas, Dreyfus Brothers and Company have bound themselves expressly to advance the sums necessary for the purposes of a loan; Whereas, on the occasion of this contract and others that modified it, numerous disputes were brought before the Peruvian courts;

Whereas, on April 4, 1879, war broke out between Peru and Chile; whereas, at the end of the month of December, 1879, when the legal government had disappeared, Nicolas de Piérola seized the power and was proclaimed supreme chief of the republic;

Whereas, on April 3, 1880, Dreyfus Brothers and Company wrote to President de Piérola "that they entrusted to him the decision of the questions in dispute and that they accepted his decision in advance"; whereas, by letter of April 13, President de Piérola "using his exceptional powers, undertook the solution," and consequently, rendered from April 13 to November 18, 1880, various decisions which, passing judgment on all the points in dispute, fixed the balance of the credit of Dreyfus Brothers and Company on June 30, 1880, at the sum of 16,908,564.62 soles (sixteen million nine hundred eight thousand five hundred sixty-four Peruvian soles and sixty-two centavos), or £3,214,388.11.5 Sterling (three million two hundred fourteen thousand three hundred eighty-eight pounds sterling eleven shillings and five pence), approved by the Court of Accounts and confirmed by an authentic act, received on December 1, 1880, by Me. Suarez, notary;

Whereas, Nicolas de Piérola was proclaimed supreme chief of the Republic by popular assemblies and maintained by numerous plebiscitary adhesions; whereas, he exercised the legislative power, the executive power and, in part, the judicial power; whereas, on June 28, 1881, he voluntarily resigned these functions but was immediately invested with the presidency of the Republic by the National Assembly; whereas, his government was recognized espe

cially by France, England, Germany and Belgium; whereas, finally, the High Court of Justice of England (decree of February 23, 1888), the Court of Appeals of Brussels (decree of July 10, 1888), the Franco-Chilean Arbitral Court (award called Award of Lausanne of July 5, 1901), being decrees and an award of which the Arbitral Court adopts the reasons, have deemed that this government represented and bound the nation;

Whereas, it is of slight importance that a Peruvian law of October 25, 1886, declared "all the internal acts of the government performed by Nicolas de Piérola null," since this law can not be applied to foreigners who treated in good faith;

Whereas, consequently, the credit of Dreyfus Brothers and Company has been legally and finally fixed at the sum above stated;

Whereas, it is in order to add to this sum: the sums entered in the statements of account (1) from July 1 to December 31, 1880, (2) from January 1 to June 30, 1881, (3) from July 1 to December 31, 1887, (4) from January 1 to June 30, 1889, (5) from July 1 to December 31, 1912, but, whereas, it is in order to deduct therefrom the sums paid by virtue of the award of the Franco-Chilean Arbitral Court, under date of July 5, 1901;

Whereas, since no settlement has intervened, the French Government and the Peruvian Government signed on May 7, 1910, a protocol called Guillemin-Porras, according to which "with a view to securing admission to the official quotation of the Paris Stock Exchange of the loan that it was negotiating with French financial establishments, the Peruvian Government consented to the levy, on the proceeds of the loan, of the sum of 25,000,000 francs, in order to indemnify the French creditors represented by the Banque de Paris et des Pays-Bas (to wit, Dreyfus Brothers and Company, Financial and Commercial Company of the Pacific, the Widow Philon Bernal (Hautier) and Gilliard). With regard to the other claims which French nationals have made against the State of Peru, the Peruvian Government agreed to submit them to the judgment of an arbitral court, the duty of which it was to render judgment on the validity of the claims and on the possible amount of indemnities to be allotted"; but, whereas, the Peruvian Congress refused to approve the loan and, consequently, this protocol lapsed;

Whereas, on December 31, 1912, the following Peruvian law was promulgated: "The executive power is authorized to submit, in agreement with the Government of the French Republic, to the Arbitral Court of The Hague, the claims of the French creditors represented by the Banque de Paris et des Pays-Bas, stating in the protocol which shall be signed to this effect that in no case will the Government of Peru consent to be bound to make a disbursement exceeding 25,000,000 francs in this connection; it is, likewise, authorized to submit, if it deems it necessary, in agreement with the same French Government, to the Arbitral Court all other French claims that may be in suspense and that appear to be well founded";

Whereas, in conformity with this law there was signed on February 2, 1914,

at Lima, between the Minister of Foreign Relations of Peru and the Envoy Extraordinary and Minister Plenipotentiary of the Republic, a new protocol, approved by decree of February 12; whereas, this protocol provides in the first paragraph: "The French and Peruvian Governments have resolved to submit to an arbitral court sitting at The Hague, the claims of the French creditors presented in 1910 by the Banque de Paris et des Pays-Bas, in order that this court may decide whether the said credits are well founded and, if they are, their amount";

Whereas, by virtue of this text the preceding clauses have established the validity and the amount of the credit of Dreyfus Brothers and Company; Whereas, since this credit is liquid and payable, interest at 5 per cent is due from the date of the payability of each of the sums composing it, the current interest up to June 30, 1880, being included in the sum of 16,908,564.62 soles (sixteen million nine hundred eight thousand five hundred sixty-four soles and sixty-two centavos), or £3,214,388.11.5 Sterling (three million two hundred fourteen thousand three hundred eighty-eight pounds sterling eleven shillings and five pence);

Whereas, on the other hand, it is not in order to admit the claim relative to the capitalization of the interest; whereas, in fact, the capitalization of the interest can result only from a stipulation or from circumstances of fact making clear the consent of the debtor to assume such an onerous obligation; whereas, the consent of the Government of Peru has not been given; whereas, moreover, if the capitalization of the interest, which would increase the debt considerably, had been provided for, the French Government would not have demanded only a sum of 25,000,000 francs, as appears from the second paragraph of the protocol.

With regard to the Financial and Commercial Company of the Pacific: Whereas, the Government of Peru recognizes that it owes the principal sum of £104,000 sterling, 282,636 francs with interest at 5 per cent, but refuses in good law the capitalization of the interest;

With regard to the Widow Philon Bernal (Hautier):

Whereas, the Government of Peru recognizes that it owes the principal sum of 350,000 francs and interest at 6 per cent from July 1, 1875, after deducting instalments received by virtue of the award of the Franco-Chilean Arbitral Court, but refuses in good law the capitalization of the interest;

With regard to Gilliard:

Whereas, the Government of Peru recognizes that it owes the principal sum of 5,000 francs and interest at 6 per cent from July 1, 1875, but refuses in good law the capitalization of the interest;

Whereas, the second paragraph of the protocol provides as follows: "It is agreed that the two governments shall comply with the arbitral award, whatever it may be, and that if this award is favorable to the said French creditors, the Government of Peru will, within the period of delay fixed by the said award, pay the amount of the adverse judgment through the legation of

France, it being understood that in no case the French Government shall demand for them from Peru a sum exceeding 25,000,000 francs, stipulated in the Guillemin-Porras protocol";

Whereas, according to the fourth paragraph of the protocol "the Peruvian and French Governments decide also to submit to the same arbitral court the other French claims covered by the Peruvian law of authorization of December 31, 1912";

Whereas, the claim of Eugène Robuchon, as well as that of Alexandre Coichot are not justified either in law or in fact;

Whereas, the claim of Charles Chasselon is not disputed;

Whereas, the claim of Duverneuil is recognized as being well founded with regard to its capital, but whereas, the Government of Peru disputes unjustly that it owes interest at 5 per cent from January 1, 1910, the debt being liquid and payable and the government having been ordered to pay it;

Whereas, the arbitrary detention which Momboisse suffered has caused him a loss which the arbitral court estimates at the sum of 25,000 francs;

FOR THESE REASONS

Declares that it is not in order to render judgment on the claims of Remant and Ratouin which have been withdrawn; fixes the actual amount of the debts at the sums determined above in capital and interest; rejects the capitalization of the interest; decides that the sum of 25,000,000 francs shall be remitted to the French Government, which shall apportion it among the creditors of Dreyfus Brothers and Company, the Financial and Commercial Company of the Pacific, the Widow Philon Bernal (Hautier) and Gilliard, in proportion to the sums due them, and in view of the circumstances of the case, states that the payment shall be made in annual instalments of 5,000,000 francs; rejects the claim of the heirs of Robuchon and that of the heirs of Coichot; decides that the Government of Peru shall pay to Chasselon the sum of 2,943 francs with interest at 5 per cent, beginning with the month of January, 1908, to Duverneuil the sum of frs. 6,411.20 with interest at 5 per cent from January 1, 1910, to the assigns of Momboisse the sum of frs. 25,000; decides that the sums due shall bear interest at 5 per cent until their complete payment; rejects all other claims and motions;

Done at The Hague in the Palace of the Permanent Court of Arbitration, on October 11, 1921.

The President: OSTERTAG.

The Secretary General: MICHIELS VAN VERDUYNEN.
The Secretary: CROMMELIN.

REPORT CONCERNING THE LOSS OF THE DUTCH STEAMER "TUBANTIA" BY THE INTERNATIONAL COMMISSION OF INQUIRY AT THE HAGUE1

Report rendered February 27, 1922

Considering that by a convention of inquiry concluded at Berlin on March 30, 1921, the Government of the German Reich and the Government of Her Majesty the Queen of The Netherlands, respectively signatories of The Hague Convention of October 18, 1907, for the Pacific Settlement of International Disputes, have agreed to submit to an international commission of inquiry constituted in accordance with the provisions of Chapter III of the said convention, the question of ascertaining what was the cause of the loss of the Dutch steamer Tubantia which occurred on March 16, 1916;

Considering that according to the terms of the said convention of inquiry, the International Commission of Inquiry has been composed of:

M. Hoffmann, formerly member of the Swiss Federal Council, President; M. Surie, Rear Admiral in Reserve of the Dutch Navy;

M. Ravn, Naval Captain, Director of the Hydrographic Service of the Danish Navy;

M. Unger, Frigate Captain of the Swedish Navy;

M. Gayer, Corvette Captain of the German Navy;

Considering that the two governments have respectively named as agents and counsel,

The Government of the German Reich: M. Karl von Mueller, Naval Captain in Reserve;

The Government of Her Majesty the Queen of The Netherlands: Professor A. A. H. Struycken, member of the Council of State, member of the Permanent Court of Arbitration, Agent, and M. Canters, Naval Captain, Director of the Torpedo Factory, Counsel;

Considering that the Dutch and German cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on July 27 and 29, 1921, respectively;

Considering that the Dutch and German counter-cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on September 23 and October 14, 1921, respectively;

Considering that the examination being closed, the International Commission of Inquiry, constituted as stated above, has met at The Hague in the Palace of the Permanent Court of Arbitration on January 18, 1922;

Considering that since the parties have presented all their explanations and proofs and the witnesses and experts have been heard, the President of the Commission has pronounced the inquiry closed;

The International Commission of Inquiry has drawn up the following report:

1 Translated from the official French text published by the Bureau Internațional de la Cour Permanente d'Arbitrage.

« PředchozíPokračovat »