783.003/156: Telegram

The Minister in Egypt ( Fish ) to the Secretary of State

14. My telegram No. 13, February 3, noon. Following is the full text in translation of the note7 received from the Egyptian Foreign Office this morning regarding the proposals to be submitted by the Egyptian delegates at the Montreux Conference:

“Mr. Minister: In continuation of my circular letter of January 16, 1937, No. 2 cir.,8 I have the honor to inform you of the essential principles which should form the basis of the transitional régime of which the Egyptian Government is willing to admit the establishment.

1.
Civil and commercial suits between foreigners of the same nationality which now fall within the competency of the Consular Courts shall be referred to the Mixed Courts.
2.
The jurisdiction which is exercised over penal matters by the Consular Courts shall be transferred in full to the Mixed Courts. In view of the transfer, the Egyptian Government will promulgate a new penal code and a code of criminal procedure, the text of which will be made known to the Powers.
3.
The questions of personal status over which the Consular Courts now have jurisdiction shall be transferred to the Mixed Courts, which shall apply, in such questions, the principle of the laws of personality (national law).
4.
The increase of personnel which may be necessary to meet this extension of competency shall be envisaged.
5.
For the purpose of the future jurisdiction of the Mixed Courts, it shall be understood that the word ‘foreigner’ in the regulations of judicial organization shall have the same meaning in penal matters as in civil, commercial or personal status matters. It shall include the nationals of the 12 present Capitulatory Powers as well as those of 1he following 8 countries: Germany, Austria, Hungary (former Capitulatory Powers), Switzerland (whose nationals have always enjoyed capitulations), Poland, Czechoslovakia, Rumania, Yugoslavia (states of which the territory or a portion of territory formed part of a country which was formerly a Capitulatory Power). In the opinion of the Egyptian Government, the term ‘nationals’ should only be understood to mean, for the purposes of the convention to be established, nationals who possess the status of citizen but not the nationals who have only the status of protégé or subject (subditi).
6.
It shall be specified that the competency of the Mixed Courts shall henceforth be determined in civil, commercial and personal status matters solely by the nationality of the parties actually concerned without regard to the mixed interests which might be indirectly involved.
7.
The establishment of a foreign identity, the transfer of a right to a foreigner or the implication of a foreigner shall not give competency to the Mixed Courts when such establishment, transfer, or [Page 620] implication is for the purpose of depriving the National Courts of authority over such disputes.
8.
The change of nationality of a party during the course of a suit shall not modify the competency of the court regularly seized of the case. The disappearance in the course of a trial of the foreign element which gave competency to the Mixed Courts shall render them incompetent.
9.
The Mixed Courts and the National Courts may each assume jurisdiction in actions which, by virtue of the preceding articles, would be within the competence of the other jurisdiction when such actions are accessory to a principal action within their competence. However, the tribunal seized of the principal action may refer the accessory action to the tribunal which is normally competent, when it shall judge such reference to be preferable for the proper administration of justice and conforming to the interest of the parties concerned.
10.
The National Courts may exercise their jurisdiction in civil and commercial matters with respect to any foreigner who consents to submit himself thereto, either expressly or tacitly. The act of submitting to the jurisdiction of a Court of First Instance shall imply submission to the jurisdiction of the corresponding courts of higher degree.
[11.]
The Mixed Courts shall not be allowed to take cognizance, either directly or indirectly, of acts of sovereignty, nor may they pass on the validity of the application to foreigners of a law or a decree made by the Egyptian Government. Without being able to interpret an administrative act or to stop its execution, they shall be, however, competent to recognize: (1) in civil and commercial matters, all disputes concerning personal or real property between foreigners and the Government; (2) any action involving civil responsibility brought by a foreigner against the Government by reason of administrative measures taken in violation of laws or regulations.
12.
The competency of the Mixed Courts in penal matters is entirely determined by the nationality of the accused. However, the National Courts shall have over foreigners the same competency that the Mixed Courts have over persons under the jurisdiction of the National Courts, for crimes and misdemeanors committed directly against magistrates and officers of justice or against the execution of sentences or warrants as defined in articles 7 and 8 of title II of the present regulations of judicial organization. The Mixed and National Courts shall also have authority over infractions committed by witnesses regularly summoned before them, whatever the nationality of these witnesses may be.
13.
The judgments and decrees of the mixed jurisdictions shall be drawn up in Arabic and in one other judicial language. For this purpose a corps of translators shall be attached to the Mixed Courts.
14.
Regarding the composition of the Mixed Courts: (a) No distinction shall be made based on the nationality of the judges so far as concerns either the composition of the chambers or the assignment to different posts of the judicial organization, including the presidency of the tribunals and the chambers. Sec. (b) As soon as vacancies shall occur through retirement, death or resignation, the foreign judges shall be replaced by Egyptian judges, (c) In case the presidency of the Court of Appeals or of the courts devolves upon a foreign judge, the vice-presidency shall fall upon an Egyptian judge and vice [Page 621] versa. The adoption of these principles will necessitate changes in the present regulations of judicial organization, the revised text of which will be submitted to the examination of the conference. I should be grateful if you would be good enough to bring the foregoing to the attention of the Government of the United States of America, and I seize this occasion, Mr. Minister, to renew to you the assurance of my high consideration.

Wacyf Boutros Ghali, Minister of Foreign Affairs”.

The original text of the above note is being forwarded by air mail.

Fish
  1. Dated February 3.
  2. See telegram No. 5, January 17, 10 a.m., from the Minister in Egypt, p. 615.