Spanish Zone of Morocco Claims
| Jurisdiction | Japón |
| Date | 29 December 1924 |
| Docket Number | 85 |
| Court | Supreme Court (Japan) |
(Huber, Rapporteur.1)
(Huber, Rapporteur2)
(Huber, Rapporteur.1)
State Responsibility — In General — For Treatment of Aliens — Damage Suffered in the Course of Risings, Revolts and Wars — Acts of Plunder — Damage Caused during Military Operations — Failure to Prosecute — Denial of Justice — Expropriation of Alien Property — State Responsibility in regard to Protectorates — The Spanish Protectorate over Morocco — Sources of Decision — Application of Rules by Analogy — Hague Convention No. IV. of 1907 — Authority of Writers — Arbitral Awards.
International Law — Sources — Treaties in Force between Parties to the Dispute — How far Applicable as an Element of Interpretation.
International Law — In General — Sources of — Analogy of Rules of International Law in pari materia — Hague Convention of 1907 — Applicability to Military Operations other than in the Course of War — Authority of Writers — Arbitral Decisions.
Protectorates — State Responsibility in respect of — Spanish Protectorate over Morocco.
Responsibility of States — In General — Matters of Domestic Jurisdiction — prima facie Ascertainment of Responsibility.
State Responsibility — Denial of Justice — Failure to Prosecute — Situation of General Insecurity — Limits of Responsibility.
Executive Action — Acts of Soldiers — Damage Done in the Course of Military Operations.
State Responsibility — Acts of Rioters — Damage Suffered in the Course of Insurrections.
Claims — In General — Character of — International Character of Claims Arising out of Injuries to Individuals.
Aliens — Treatment of — State Responsibility — In respect to Protectorates — Spanish Protectorate over Morocco.
Aliens — Expropriation of Property — Compensation for.
Interpretation of Treaties — Preparatory Work — Interpretation of Arbitration Agreements.
Rate of Interest — Submissions of the Parties — Ultra Petìta — Compound Interest — Dies ad quem.
Arbitration — In General — Arbitrability of Claims — Conception of Arbitrability — Article 13 of the Covenant — Article 36 of the Statute of the Permanent Court of International Justice — International Character of Claims Arising out of Injuries to Individuals — Matters of Domestic Jurisdiction —“Abstract and Formal” Arbitrability as Distinguished from “Positive” Arbitrability —“Examination and Report” as Distinguished from Arbitration — Preparatory Work in the Interpretation of Treaties — Treaties between the Disputant Parties as a Source of Interpretation.
The Facts.—(See Case No. 85.) Great Britain asked for compound interest at the rate of 7 per cent. The Spanish Government was prepared to admit simple interest only at the rate of 5 per cent.
Held: (a) That 7 per cent. should be fixed as the rate of interest. It appeared from the evidence submitted by the parties that the rate of 7 per cent. did not exceed the normal rate of interest obtaining in Morocco at the time of the occurrence of the events which gave rise to the arbitration. In some cases the award of a rate of interest higher than 7 per cent. would be appropriate. However, to award more than 7 per cent, would be contrary to the principle of judicial procedure, according to which the amount awarded ought not to exceed the claim put forward by the parties.
(b) That compound interest cannot be awarded. The numerous decisions of international tribunals in the matter of compensation to be granted for injuries suffered by aliens are unanimous in refusing to admit compound interest. In view of this, only special reasons of a particularly convincing nature could persuade the Rapporteur to award compound interest. No such reasons have been adduced in the present case.
The Facts.—Clauses 1 and 2 of the Arbitration Agreement of 29 May, 1923, between Great Britain and Spain concerning certain claims of British subjects or British protected persons against the Spanish authorities for damage to life or property in the Spanish Zone of Morocco provided as follows:
“1. All claims on the annexed schedule, except those for damage to persons or property resulting from military operations, risings of the Cabiles or acts of bandits, shall be submitted for examination and report to Mr. , who shall determine the amount, if any, payable by the Spanish Government to His Britannic Majesty's Government in respect of each claim. Mr. 's report shall be accepted as an arbitral award by both Parties to this agreement.
“2. The Spanish Government shall furnish His Britannic Majesty's Government, within one fortnight of the date of this agreement, with a list of those claims on the annexed schedule which they consider result from military operations, risings of the Cabiles or acts of bandits. These claims shall also be submitted to Mr. for examination and report, but it shall be understood that it will be open to His Catholic Majesty's Government to argue that such claims are not by their nature arbitrable, and to require a decision on this point before each actual claim itself is examined and any award delivered with respect to the indemnity, if any, to be paid on account of such claim. It should also be understood that if Mr. reports that these claims are not arbitrable, His Britannic Majesty's Government will not further press for their submission to arbitration.”
[As to the nature of the claims put forward under the latter clause see Case No. 85.]
Before the Rapporteur dealt with the individual claims on their merits he was called upon to pronounce in regard to the disagreement between the two parties as to the meaning of the term “by their nature arbitrable.” The parties were agreed that, for a dispute to be arbitrable, it must relate to a question of law in the domain of international law. But according to the Spanish contention the claims in the list supplied under Clause 2 did not satisfy these criteria. It was contended that the indemnities which the Spanish authorities might eventually grant to persons who had suffered losses in the course of riots and hostilities generally would be paid not on the basis of the State's legal obligation, but as an act of grace based on purely equitable considerations. It was further maintained that even if a claim should be grounded on rules of civil or administrative law, it would lie entirely within the sphere of national law and would thus fall outside any international jurisdiction. This was also the case, according to the Spanish contention, in regard to claims involving the responsibility of civil or military officials. Thus, either the non-juridical or the internal, national character of the relations between the injured party and the authorities would, according to this contention, prevent the claims set out in the list supplied under Clause 2 from being susceptible, by their nature, of forming the object of arbitration under any international jurisdiction whatsoever.
Held: That all the claims brought in the list supplied under Clause 2 were arbitrable in the sense that the examination of each of them could and must be proceeded with far enough to allow the Rapporteur to decide whether the facts found in regard to the claim lead to the recognition of international responsibility.
The English term arbitrable (to which corresponds the phrase susceptibles de ser sometidas a un arbitraje in the Spanish text of the Agreement of 29 May) signified in an international instrument disputes susceptible of being made the object of a decision based on international law.1
The claims put forward in the list supplied under Clause 2 concerned losses suffered by...
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