File No. 422.11G93/680a.
The Secretary of State to the American Minister.
Washington , August 13, 1913 .
On July 1 the Chargé d’Affaires of Ecuador and officials of the Department, in the presence of attorneys of Ecuador and of the Railway Company, agreed upon a draft of a protocol for arbitration of the case of the Railway Company. The Department understood that the substance of this draft would be cabled to Quito and that the Chargé would be promptly authorized to sign. After more than a month had elapsed, desirous of learning the cause of this delay, the Department requested the Minister of Ecuador to call. Doctor Cordova came on August 8 and made a statement which on the same day he embodied in a formal note, which states that his Government believes a protocol to be unnecessary and if made would have to be submitted to the Congress of Ecuador, which would cause great delay; and that if the Arbitrators should enter upon their duties immediately, they would be given every support and facility. The note accepts the following positions: (1) After entering upon their duties before the proper Ecuadorean judge, the Arbitrators would, by virtue of that act, “become a Tribunal Arbitral independent of every authority or court of Ecuador or the United States.” (2) They would act as amiables compositeurs, “not obligated to apply the laws of any nation in order to reach a decision” but “must be inspired only by the dictates of justice and equity according to their conscience and best knowledge and judgment, taking as their basis the antecedents of the case.” (3) Their judgment should be “final.” [Page 497] These conditions embrace the essential points which the protocol was intended to cover, namely: (1) The Arbitrators’ independence of local law and procedure. (2) Their power to determine the principles applicable to the decision of the various questions involved. (3) The finality of their award, which necessarily means that it is not subject to review by the Ecuadorean courts.
You will communicate the entire substance of this telegram to the Government of Ecuador and request its immediate confirmation of the understanding set forth.