411.57 N 83/153
The Norwegian Minister (Bryn) to the Secretary of State
Mr. Secretary of State: I have the honor to acknowledge Your Excellency’s note of May 28, 1921, enclosing a proposed draft of agreement covering the arbitration of the fifteen claims of the so-called Christiania Group of Norwegian Shipowners.
The draft of agreement which I had the honor to submit informally on May 3rd20 is not referred to, but I am assured that it has had the benefit of your consideration in the preparation of the draft now forwarded by you.[Page 587]
It is a pleasure to observe the pains that have been taken in drafting the agreement enclosed by you to prepare the way for arbitration on the merits of the controversy.
I observe that the element which my Government has regarded of overshadowing importance, viz., the violation of the treaty existing between the two Governments is not referred to in the draft. Nevertheless, so desirous is my Government of reaching a basis of agreement, that, despite this omission, I am able to assure you that with some alterations, which I feel confident you will deem unessential, the agreement is acceptable to my Government. These alterations I have taken the liberty of embodying in a revision of your draft which I now beg to enclose herewith.21 This revision of your draft, while omitting much that my Government has heretofore been inclined to regard as essential, would, if agreeable to you, be acceptable to my Government. It is my hope that you may find it satisfactory.
For your convenience in examining the revision of your draft, I will refer briefly to the alterations made in your draft as follows:
1.—That part of the preamble which states the nature of the claims has been expressed in more general terms so as to cover what in fact are the claims of the Norwegians. I need not say that this involves no admission on the part of the United States Government of the validity of any such claim. The change is proposed merely to express more fully what in fact is claimed by the Norwegians.
I have also added to the preamble a clause expressing the fact that it has been impossible to settle the controversy by diplomacy.
2.—Carrying out the thought involved in the above change in the preamble, the issues in controversy have been stated in more general terms so as to express the principle that the claims of the Norwegians, whatever they may be, are to be arbitrated. The manner of stating the issues in your draft might have been claimed by the counsel representing the United States before the arbitrators to have excluded all the Norwegian claims. For the counsel for the United States might have claimed that in a strict sense no property belonging to the present claimants was requisitioned (all the present claimants being assignees of the owners of the property on August 3, 1917) and that therefore all the claims were out of court. I am assured that there is no desire on the part of the United States Government to have a futile arbitration of that character.
In justification of the general language employed in stating the issues, I note that in all arbitrations I have examined to which the United States has been a party where general language is applicable, [Page 588] general language has been used. In the Oronoco Steamship Company Case, Article I of the protocol defines the jurisdiction of the Commission as follows:
“All claims owned by citizens of the United States of America against the Republic of Venezuela …22 shall be examined and decided, etc.”
In the Pious Fund Case the issues were stated—
“All claims on the part of corporations, companies or private individuals, etc., …22 shall be referred to the Commission.”
Similarly in the Venezuela Preferential Case, it is provided that “all claims” shall be submitted.
In regard to certain of the words in my draft of agreement, I beg to call your attention to the following language in the Oronoco case. The protocol provided that the claims shall be decided—
“Upon a basis of absolute equity without regard to objections of a technical nature or of provisions of local legislation.”
In regard to these words, the Commission used the following language:
“Clearly the high contracting parties had in view the substance and not the shadow of justice. They sought to make the remedies to be afforded by the commission dependent not upon the niceties of legal refinement, but upon the very right of the case. The vital question in this, as in every other claim before this tribunal, is whether and to what extent citizens of the United States of America have suffered loss or injury; and whether and to what extent the Government of Venezuela is responsible therefor.”
In the Pious Fund Case the arbitrators were required to make declaration that they “will impartially and carefully examine and decide to the best of their judgment and according to public law and justice and equity, …22 upon all such claims.”
[3.]—As to the method of appointing a third arbitrator in case the parties can not agree, I shall have to consult my Government. I apprehend that the suggestion contained in your draft should be entirely agreeable to my Government.
4.—The provision for the arbitration of a certain counter-claim will not be objected to by my Government. However, the nature of this claim must be expressed specifically and I have modified the draft accordingly.
5.—Time. The provisions of the draft which I had the honor to submit on May 2d [3d] made provision for a total time of eight months between the ratification of the agreement and the hearing of [Page 589] the ease. The draft sent by you extends this total time to twelve months. While no doubt this or even a longer time could be taken by counsel, I believe it to be unnecessary. I believe results more satisfactory to all parties will be secured if the hearing be hastened. I have therefore suggested that the total time be cut down to nine months.
6.—At the end of Article II, I have added two clauses.
(a) This clause is to the effect that each party will furnish evidence in its possession desired by the other. It seems to me that this is a proper provision. In ordinary judicial proceedings the other party is subject to subpoena. If arbitration is to be a successful method of adjusting international disputes, some such provision as this seems to be required as a substitute for the subpoena in ordinary judicial proceedings.
On this subject, I beg to call your attention to Article 4 in protocol providing for arbitration in the Pious Fund Case:
“Either party may demand from the other the discovery of any fact or of any document deemed to be or to contain material evidence for the party asking it; the document desired to be described with sufficient accuracy for identification, and the demanded discovery shall be made by delivering a statement of the fact or by depositing a copy of such document (certified by its lawful custodian, if it be a public document, and verified as such by the possessor, if a private one), and the opposite party shall be given the opportunity to examine the original in the City of Washington at the Department of State, or at the office of the Mexican Ambassador, as the case may be. If notice of the desired discovery be given too late to be answered ten days before the tribunal herein provided for shall sit for hearing, then the answer desired thereto shall be filed with or documents produced before the Court herein provided for as speedily as possible.”
(b) The other clause is a clause relating generally to the character of evidence that may be offered. I suggest this clause in line with my desire to eliminate all possible grounds for controversy over technicalities. I wish to obviate the possibility that either side may object to the character of evidence offered by the other.
7.—Interest. Instead of providing for 5% interest to run for [from?] one month after the award, I have provided that the interest run from the day of the award, at a rate to be fixed by the tribunal. The fixing of interest to run from the date of judgment is, I believe, universal in judicial proceedings. As to the rate of interest, we have seen such extraordinary fluctuation recently that it seems inadvisable at this time to fix the rate; rather it should be fixed by the prevailing rate of interest at the time of the rendition of the award.
8.—I have added a simple clause to Article IV to the effect that full effect shall be given to the decision without delay.[Page 590]
Trusting that Your Excellency will appreciate the friendly and consiliatory spirit in which my Government has met your propositions and that you will find it possible to agree to the proposed amendments which are intended only to clarify and not to alter the meaning of the draft agreement submitted by Your Excellency’s afore-mentioned note, I avail myself [etc.]