The Acting Secretary of State to Minister Bowen.
Washington , January 12, 1905 .
You are authorized to conclude following protocol Bermudez matter. Important insist upon immediate restoration of property. Cable results.
Protocol of agreement between the United States of America and the United States of Venezuela, for the submission to arbitration of all questions between the Venezuelan Government and the New York and Bermudez Company, a corporation under the laws of the State of New York and a citizen of the United States.
Whereas differences have existed and still exist between the Venezuelan Government and the New York and Bermudez Company, especially in relation to the asphalt mine or deposit, commonly called Bermudez Lake, in the State of Bermudez, in Venezuela; and
Whereas in July last, on process issued by the federal and cassation court of Venezuela, at the suit of the Venezuelan Government, the said mine or deposit was, together with all its works and appurtenances, sequestrated and taken from the possession of the New York and Bermudez Company, against the protest of the Government of the United States, as well as of the company; and
Whereas it is desired in the interest of justice and of harmonious relations between the two countries to put an end to all differences between the Venezuelan Government and the said company, at once and finally, by means of an international arbitration:
Now, therefore, the United States of America and the United States of Venezuela, through their respective representatives,—— ——,—— ——, and —— ——,——, have agreed upon the following articles:
All differences heretofore or now existing between the Venezuelan Government and the New York and Bermudez Company, and all claims on either side arising therefrom, whether such claims have been diplomatically presented or not, shall be referred to and shall be decided by a board of three arbitrators, one to be named by the President of the United States, one by the President of Venezuela, and the third by the President of the United States and the President of Venezuela jointly within sixty days.
In case of the death, absence, or incapacity of any arbitrator, or in the event of his ceasing or omitting to act the vacancy shall be filled in the same manner as the original appointment, the period of sixty days to be calculated from the date of the happening of the vacancy.
The arbitrators shall meet in the city of Washington within sixty days after the date of the appointment of the third arbitrator.
The vote of two arbitrators shall suffice for the decision of all questions submitted to the tribunal, including the final award.
Within six months after the signature of this protocol each party shall present to the other and to its agent, and also to each of the arbitrators two printed copies of its case, accompanied with the documents and evidence on which it relies, together with the affidavits of their respective witnesses.[Page 1015]
Within a further period of four months either party may, in like manner, present a counter case, with additional documents and evidence and affidavits in reply to the case, documents, and evidence of the other party.
If either party shall, in its case or counter case, refer to any document in its exclusive possession without annexing a copy it shall upon the request of the other party furnish the latter with a copy; and either party may call upon the other through the arbitrators to produce the originals or certified copies of any papers adduced as evidence.
Within four months after the expiration of the term allowed for the filing of counter cases each government may, by its agent, as well as by additional counsel, argue its cause before the arbitrators, both orally and in writing. Each side shall furnish to the other copies of any written arguments, and each party shall be at liberty to make a written reply, provided that such reply be submitted within the four months specified.
All proceedings whether judicial or administrative, pending against the New York and Bermudez Company at the suit of the Venezuelan Government, shall be immediately discontinued and the award rendered under the present protocol shall be accepted as a conclusive determination of all questions involved in said proceedings and of any and all rights of said company in Venezuela, under its concessions and deeds, or otherwise, including indemnity for any violation of said rights.
The company shall be immediately restored to the possession and enjoyment of Bermudez Lake, its works, and appurtenances, as fully as before the late sequestration, and shall be permitted to remain in such possession and enjoyment, subject only to the decision of the arbitrators; and the Venezuelan Government shall so far as possible restore to the company all asphalt and other property taken from it at and since the order of sequestration, and shall give all aid to the company in tracing and recovering all such asphalt and other property as may have passed out of said government’s immediate control.
The New York and Bermudez Company shall be permitted freely to seek and to obtain the testimony of witnesses, through agents of its own selection, whether Venezuelans or foreigners, in any part of Venezuela. Such agents shall not be obstructed, threatened, or harassed; nor shall any person be hindered or deterred from giving testimony in behalf of the company, or be made in any way to suffer by reason of having given such testimony. The company shall also be permitted freely to communicate by cable, as well as by other means, with its representatives and agents in Venezuela.
The award of the tribunal shall be rendered within fifteen months from the date of the signature of the present protocol. It shall be in writing and shall be final and conclusive.
Reasonable compensation to the arbitrators for their services and all expenses incident to the arbitration, including the cost of such clerical aid as may be necessary, shall be paid by the two governments in equal moieties.