Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 2, 1913
File No. 422.11G93/698.
The Secretary of State to the American Minister.
Washington, November 14, 1913.
Sir: With reference to your telegram of November 7, and the Department’s telegram of November 11, the Department sends you herewith, for your information, a copy of the note of agreement, dated July 1, 1913, entered into at a conference held at the Department of State, at which the Department, the Government of Ecuador and the Railway Company were all represented.
I am [etc.]
[Untitled]
Whereas by a contract between the Government of Ecuador and the Guayaquil and Quito Railway Company, signed on June 14, 1897, and duly approved by the National Assembly of Ecuador, it was provided as follows:
Article 27. All controversies or disagreements that may arise between the contracting parties, shall be settled by arbitration, one arbiter shall be the President of the United States of America, and the other shall be the President of Ecuador; should they not wish to act, they will each name an arbiter, and should these not agree, then the said President of the United States of America and the President of Ecuador will name a third arbiter to decide the question.
And, Whereas, by an award rendered under said article on November 24, 1908, by arbitrators duly appointed by the President of the United States of America and the President of Ecuador, all controversies and disagreements that had arisen between the contracting parties up to the date of said award were definitely settled:
The Government of the United States and the Government of Ecuador agree that all controversies and disagreements that have arisen since the date of the award, and particularly all controversies and disagreements as to the performance or fulfillment of the terms of said award, are referred to arbitration under Article 27 above mentioned and shall be definitely settled in conformity with said Article.
The Government of the United States and the Government of Ecuador further agree as follows:
1. The Tribunal shall be organized by the filing in its office, at Quito, on August 1, 1913, of a solemn declaration, in triplicate, by the Arbitrators, that they will impartially and carefully examine and decide, to the best of their judgment and according to public law, justice and equity, without fear, favor or affection to either party, upon all claims that shall be laid before them for their decision on the part of the parties to the arbitration and such declaration shall be entered on the record of their proceedings.
The Arbitrators shall meet in Quito on September 15, 1913, and shall proceed to the disposition of the business before the Tribunal.
The provisions of this section, except as to dates and place of meeting, shall apply to the third arbitrator, should one be named.
2. The proceedings of the Tribunal shall be conducted both in English and in Spanish.
3. Each party may name in writing an agent and not more than two counsel to present and support its claims before the Tribunal, to answer claims made upon it and in general to represent it in all matters connected with the investigation and decision of the said claims.
4. Each arbitrator shall appoint a secretary versed both in English and in Spanish to assist him in the transaction of the business of the Tribunal. The secretaries shall make and subscribe a solemn declaration that they will faithfully and carefully discharge their duties.
5. The secretaries shall each keep duplicate records of the proceedings of each session of the Tribunal, in English and in Spanish, so that one copy in each language may be supplied to each party. Said records shall be read at the next meeting of the Tribunal, and, if no objection be made, or when corrected, if correction be needed, shall be approved and subscribed by the Arbitrators and countersubscribed by the secretaries.
6. The secretaries shall each keep a docket, entering therein, by date, all documents filed by either party, giving each a number, and shall endorse on each document the date of filing and the respective number.
7. The secretaries shall be the custodians of the documents and books of the Tribunal and shall keep the same safely and in methodical order. They shall afford every reasonable opportunity and facility to the Agents and Counsel of the respective parties to inspect and make extracts from documents and records, but shall permit none to be withdrawn from the files of the Tribunal, except by the written direction of the Arbitrators duly entered of record.
8. The secretaries shall keep a notice-book in which entries may be made by the Agent of either party and the entries when so made shall be notice to the opposing Agent and to all concerned.
9. All documents and records shall be considered confidential, and no one but the Agents and Counsel of the parties shall be permitted to inspect them, except by the written direction of the Arbitrators duly entered of record.
[Page 503]10. Within fifteen days from the organization of the Tribunal the parties shall serve upon each other a detailed statement in writing of their respective claims, and shall file with the Tribunal four copies thereof, two in English and two in Spanish. Claims not presented in this manner shall not be considered by the Arbitrators, but shall be deemed to be forever waived and barred.
11. Within fifteen days from the filing of the said claims the parties shall serve upon each other their answers thereto, and shall file with the Tribunal four copies thereof, two in English and two in Spanish.
12. Within ten days from the filing of the said answers the parties shall serve upon each other their replications thereto and shall file with the Tribunal four copies thereof, two in English and two in Spanish.
Any claims and allegations of either party not controverted by the other shall be deemed to have been admitted.
The claims and pleadings may be amended [so] as to form at any time before final submission to the Tribunal of all matters in dispute, upon written leave of the arbitrators duly entered of record. [Omission?]
13. Within ten days from the filing of the replications as provided in paragraph 12, each party shall present in writing to the Tribunal the evidence on which it intends to rely. When an original paper can not be produced, a certified copy thereof or a copy stipulated to be correct may be received in evidence in lieu of the original. Either party may call upon the other for the production of papers and documents.
14. Within ten days thereafter, each party shall have the right to present in writing evidence in rebuttal. The reception of evidence shall then be deemed to have been closed, unless the Tribunal shall request further proofs, in which case either party may be directed to produce documents or information in its possession, or the arbitrators may interrogate witnesses orally. The testimony of such witnesses shall, however, be taken down in writing, and either party shall be entitled to cross-examine any such witnesses.
15. The arbitrators shall investigate the claims before them upon the evidence furnished by the Agents of the respective parties and shall hear, if requested so to do, the Agent and one of Counsel on each side on each claim.
16. The award or awards of the arbitrators, and in the event of their disagreement the award or awards of the third arbitrator, shall be in writing and shall be final and conclusive, and of immediate obligation, and shall be payable at Quito in American gold with interest at the rate current in Ecuador from the date of maturity until payment.
17. The arbitrators shall render their award or awards within six months from the day on which their first meeting took place; but should they find themselves unable to conclude their labors within that time, they may take three months longer, notifying the parties of the fact.
18. Should a third arbitrator be named, the Arbitrators shall deliver to him, within twenty days after he has made and subscribed the solemn declaration required by section I, all papers, documents and evidence relating to the claim or claims on which they were unable to agree. Within thirty days after his receipt of such papers, documents and evidence, he shall hear argument as prescribed in section 15, and within thirty days after the conclusion of the argument, he shall render his decision.
19. The Government of the United States shall pay the compensation of the Arbitrator named by the President of the United States, and the Government of Ecuador shall pay the compensation of the Arbitrator named by the President of Ecuador. In case it is necessary to name the third arbitrator, his compensation shall be paid jointly by the two Governments in equal proportions. All other expenses, including costs and fees, shall be paid as directed by the Arbitrators.
20. All matters relating to the proceedings of the arbitration not herein provided for shall be determined by the Arbitrators, to whom is reserved the right to make further rules as occasion may demand.
21. The proceedings of the Tribunal shall not be subject to the intervention of the courts of either country.
Note: It should be stipulated that Mr. A. Romo Leroux, who has been the local attorney for the Railway Company for a number of years and is familiar with its records and also with the laws of Ecuador, shall be allowed to return and act as one of the attorneys of the Railway Company in the arbitration, if the Railway Company shall so desire.
[Page 504]Form of Declaration by the Arbitrators.
The undersigned, Arbitrators respectively appointed by the President of the United States of America and the President of the Republic of Ecuador to decide the questions between the Government of Ecuador and the Guayaquil and Quito Railway Company under the protocol concluded on the day of , 1913, do solemnly declare that they will impartially and carefully examine and decide, to the best of their judgment and according to public law, justice and equity, without fear, favor or affection to either party, upon all claims that shall be laid before them for their decision on the part of the parties to the arbitration.