File No. 838.516/66.
Minister Blanchard to
the Secretary of State.
No. 28]
American Legation,
Port au Prince,
January 11, 1915.
Sir: I have the honor to report that in
pursuance of the complaint embodied in a letter from the Director of the
National Bank of the Republic of Haiti, under date of December 29, 1914,
and after conference with the French Minister here, who took a similar
course in the defense of the French interests in the Bank, the Legation,
pending further instruction, addressed a note to the Foreign Office,
dated December 30, 1914, of which a copy is herewith forwarded, making
the most express reserves as to the action of the Haitian authorities in
executing the decree, rendered by default and in violation of Article 24
of the contract of the Bank, which prescribes that all differences
between the Haitian Government and the Bank must be submitted to
arbitration.
I also enclose copy and translation of the note verbale, dated January 8,
1915, received from the Foreign Office in reply.
As you will observe, the Foreign Office, after recalling that, according
to the contract of the Bank, all diplomatic intervention is formally
prohibited and that further, even if such were possible, the fact of the
Bank being a French corporation having its principal office in Paris,
should exclude in any case American intervention, the French being
represented in Haiti by the Legation of the French Republic, informs
this Legation in a purely unofficial manner as to
[Page 501]
the rights of the Haitian Government in
that which concerns the decree of référé of October 20 last, and finally
states that the Haitian Government is ready to submit the differences to
arbitration, as provided for in Article 24 of the contract of 1910. Of
this the Bank was informed.
I have [etc.]
[Inclosure 1.]
Minister Blanchard to the Minister for
Foreign Affairs.
American Legation,
Port au Prince,
December 30, 1914.
memorandum.
The director of the National Bank of the Republic of Haiti has
informed this Legation that, in execution of a decree of the juge
des référés rendered against the Bank on the 20th of October last,
by default, the Haitian authorities presented themselves yesterday
at that establishment and took from its vaults the sum of $66,910
gold.
The Legation of the United States deems it its duty to make its most
express reserves on the execution of the aforesaid decree, rendered
under judicial authority and contrary to Article 24 of the contract
of the Bank, which specifies that all differences between the
Haitian Government and the Bank are to be submitted to
arbitration.
[Inclosure 2—Translation.]
The Minister for Foreign
Affairs to Minister Blanchard.
Department of State for Foreign
Affairs,
Port au Prince,
January 8, 1915.
note verbale.
By its memorandum of December 30, last, the Legation of the United
States set forth that it is its duty to make its most express
reserves on the execution against the National Bank of the Republic
of Haiti of a decree of the juge des référés rendered on the 20th of
October last between the State and that institution. The Legation
adds that this execution is contrary to Article 24 of the contract
of concession which specifies that all differences between the
Haitian Government and the Bank must be submitted to
arbitration.
In reply to this memorandum, the Department of Foreign Affairs
expresses, first of all, its special satisfaction in noting that the
Legation of the United States, in invoking, for mediation, Article
24 of the contract of concession of 1910, testifies to its formal
intention, in conformity with the rules of international law, to
maintain itself strictly within the limits drawn by this
contract.
Under such conditions, it is with entire confidence in the adhesion
of the American Legation that the Department of Foreign Affairs
reverts again to this double observation: that Article 24, upon
which the Legation feels bound to form its reserves, stipulates in
express terms, “All diplomatic intervention is formally prohibited,”
and that, in addition, Article 3 of the contract of concession
establishes without question that the Bank is a French corporation
having its principal office in Paris, which even if diplomatic
intervention were possible, should exclude, in any case, American
intervention, the French having to represent them in Haiti the
Legation of the French Republic.
It is, therefore, by virtue of the same contract invoked by the
memorandum of December 30 last, that the Department of Foreign
Affairs is obliged to oppose the intervention of the Legation of the
United States.
However, the position of the parties having thus been clearly
determined and all equivocation in this regard being dissipated, the
Department of Foreign Affairs sees no objection to informing the
American Legation, in a purely unofficial manner, as to the
incontestable rights of the Haitian Government in that which
concerns the decree of référé of October 20 last.
[Page 502]
Article 24 of the contract of concession states that in case of a
difference between the Government and the Bank the point in
controversy shall be submitted to arbitration.
In law any contestation is susceptible of being affected, under
normal conditions, by various circumstances.
Hence the distinction established between that which constitutes the
basis of the contestation and that which constitutes the
incidents.
The basis will remain, in any case, submitted to the competent
tribunal—in the present case, to arbitration; whereas, the incident,
according to its nature, may necessitate the intervention of another
jurisdiction.
It is thus that it is recognized that “the constitution of an
arbitral tribunal to decide on the difficulties already arisen and
to arise in the liquidation of a company, places no obstacle in the
way of the provisional jurisdiction of the juge des référés, in case
of urgency.” (Pandectes Françaises; Référé No. 380.)
Provided, therefore, that there be urgency, the juge des référés is
competent. He decides on the urgency of the case, leaving out
entirely the basis of the contestation.
Concerning the present difference, the decree of référé of October 20
has simply decided the absolutely urgent question of the execution
of a law of the Legislative Body placing at the disposition of the
Executive Power the amounts which are the exclusive property of the
Haitian State.
The basis of difference continues to remain entire in spite of the
decree of référé.
And it is exactly this difference that the Government is ready to
submit to arbitration provided for in Article 24 of the contract of
1910.
