1. Nicarauaga v US 1986
FACTS:
In July 1979, the Government of President Somoza was replaced by a
government installed by Frente Sandinista de Liberacion Nacional (FSLN).
Supporters of the former Somoza Government and
former members of the National Guard opposed the new government. The US
– initially supportive of the new government – changed its attitude when,
according to the United States, it found that Nicaragua was providing
logistical support and weapons to guerrillas in El Salvador. In April 1981 the
United States stopped its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States “decided to plan and undertake activities directed
against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense
(FDN), which operated along the border with Honduras, and (2) Alianza
Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica. Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary legislation enacted by
the United States Congress made specific provision for funds to be used by
United States intelligence agencies for supporting “directly or indirectly
military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control
of the contras, the United States devised their strategy and directed their
tactics, and that the contras were paid for and directly controlled by the
United States. Nicaragua also alleged that some attacks against Nicaragua were
carried out, directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks against Nicaragua included the
mining of Nicaraguan ports, and other attacks on ports, oil installations, and
a naval base. Nicaragua alleged that aircrafts belonging to the United States
flew over Nicaraguan territory to gather intelligence, supply to the contras in
the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit stages,
after refusing to accept the ICJ’s jurisdiction to decide the case. The United
States at the jurisdictional phase of the hearing, however, stated that it
relied on an inherent right of collective self-defence guaranteed in A. 51 of
the UN Charter when it provided “upon request proportionate and appropriate
assistance…” to Costa Rica, Honduras, and El Salvador in response to
Nicaragua’s acts of aggression against those countries (paras 126, 128).
HELD:
Court must make a determination of state practice and opinio juris. Bound
as it is by Art. 38 of its Statute to apply international custom "as
evidence of a general practice accepted as law," the Court may not
disregard the essential role played by general practice. In the filed of
customary international law, the shared view of the Parties as to the content
of what they regard as the rule is not enough. The Court must satisfy itself
that the existence of the rule in the opinio juris of States is confirmed by
practice.
Opinio juris can be deduced from attitude of states towards certain
General Assembly resolutions. This opinio juris may, though with all caution,
be deduced from the attitude of the Parties and the attitude of the States
towards certain General Assembly resolutions, i.e. The "Declaration on
Principles of International Law concerning Friendly Relations and Cooperations
among States in accordance with the Charter of he U."
The effect of consent to the text of such resolutions cannot be
understood as merely that of a "reiteration or elucidation" of the
treaty commitment undertaken in the Charter. On the contrary, it may be
understood as an acceptance of the validity of the rule or set of rules declared
by the resolution by themselves. The principle of non-use of force, for
example, may thus be regarded as a principle of customary international law,
not as such conditioned by provisions relating to collective security, or to
the facilities or armed contingents to be provided under Article 43 of the
Charter. It would therefore seem apparent that the attitude referred to
expresses an opinio juris respecting such rule (or set of rules, to be
thenceforth treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treat-law plan of the
Charter.
2. Topic:
Customary International Law; Opinio Juris
North Sea Continental Shelf cases, February 20
1969 (ICJ)
Facts:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principe (A – B and C – D). An agreement on further prolongation
of the boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle (B – E and D –
E) where as Germany was of the view
that, together, these two boundaries would produce an inequitable result for
her. Germany stated that due to its concave coastlqine, such a line would
result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The court had to
decide the principles and rules of international law applicable to this
delimitation. In doing so, the court had to decide if the principles espoused
by the parties were binding on the parties either through treaty law or
customary international law.
Issues: Is
germany under a legal obligation to accept the equidistance – special
circumstances principle, contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary international law rule or on
the basis of the Geneva Convention.
Held: The
use of the equidistance method had not crystallised into customary law and the
method was not obligatory for the delimitation of the areas in the North Sea
related to the present proceedings.
Opinio juris is reflected in acts of
states or in ommissions, in so far as those acts or ommissions were done
following a belief that the said state is obligated by law to act or refrain
from acting in a particular way. The court examined 15 cases where states had
delimited their boundaries using the equidistance method, after the convnetion
came into force. Thus, concluded that even if there were some state practice in
favour of the equidistance principle, the court could not deduct the necessary
opinio juris from this state practice. The north sea continental shelf cases
confirmed that both state practice and
opinio juris are essential prerequisites for the formation of a customary law
rule. This is consistent with article 39 of the statute fo the ICJ. The concept
of opinio juris and the difference between customs (i.e. habits) and customary
law: “not only must the acts concerned amount to a settled practice, but they
must also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief i.e. the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis.
The states concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts, e.g. in the
field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or
tradition, and not by any sense of legal duty. The equidistance principle was
not binding on germany by way of treaty or customary international law. In the
case of the latter, the principle had not attained a customary international
law status at the time of the entry into force of the Geneva convention or
thereafter. As such, held that the use of the equidistance method is not
obligatory for the delimitation of the areas concerned in the present
proceedings.
This sets
out the dual requirement for the formation of customary international law: 1.)
State practice (the objective element) and 2.) opinio juris (the subjective
element). In these cases, the court explained the criteria necessary to
establish state practice – widespread and representative participation. It
highlighted that the practices of those states whose interests were specially
affected by the custom were especially relevant in the formation of customary
law. It also held that uniform and consistent practice was necessary to
demonstrate opinio juris – opinio juris is the belief that state practice
amounts to a legal obligation. The North sea continental self cases also
dispelled the myth that duration of the practice (the number of years) was an
essential factor in forming customary international law. The case involved the
delimitation of the continental shelf areas in the North Sea between Germany
and Denmark and Germany and Nethedlands beyond the partial boundaries
previously agreen upon by these states. The parties requested the court to
decide the principles and rules of international law that are applicable to the
above delimitation because the parties disagreen on the applicable principles
or rules of delimitation. Netherlands and Denmark relied on the principle of
equidistance (the method of determing the boundaries is such a way that every
point in the boundary is equidistant from the nearest points of the baselines
from which the breath of the territorial sea of each state is measured.)
Germany sought to get a decision in favour of the notion that the delimitation
of the relevant continental shelf was governed by the principle that each
coastal state is entitled to a just and equitable share (hereinafter called
just and equitable principle/method). Contrary to Denmark and Netherlands,
Germany argued that the principle of equidistance was neither a mandatory rule in delimitation of the
continental shelf nor a rule of customary international law that was binding on
Germany. The court was not asked to delimit because the parties had already
agreed to delimit the ctontinental shelf as between their countries, by
agreement, after the determination of the court on the applicable principles.
3. Sison V Board of Accountancy
FACTS:
In his petition for certiorari against
the Board of Accountancy and Robert Orr Ferguson, J. A. Sison prays that this Court render judgment "ordering the
respondent Board of Accountancy to revoke the certificate issued to Robert Orr
Ferguson, a British subject admitted without examination because there does not exist any reciprocity
between the Philippines and the United Kingdom regarding the practice of accountancy.
·
Pursuant
to the provisions of Act No. 342, several persons, British subjects, were, without examination, granted by the
respondents Board of Accountancy, certificates as public accountants to
practice their profession in this jurisdiction.
·
Subsequently,
the Board of Accountancy, came to the conclusion that , there being no law which regulates the practice of accountancy in
England, and that the practice of accountancy in England, and that the
practice of accountancy in said country being
limited only to the members of incorporated private accountant's societies,
the certificates issued by the Institutes of chartered accountants and other
similar societies in England and Wales cannot be considered on a par with the
public accountant's certificates issued by the Philippine Board of Accountancy,
which is government entity. It does not meet the requirement of section 41
of Rule 123 of the Rules of Court
and does not establish the existence of
reciprocity, which induced the board to hold that the registration, without
examination.
·
However,
the Secretary of justice, in an opinion on the legality of the suspension or
revocation believes that if those certificates were issued to those British
persons on the assumption that there is "reciprocity between Great Britain and the Philippines as to the
practice of certified public accountancy in the Philippines" a change
of administrative interpretation is not favored (42 Am. Jur., 412).While in the
instant case the public policy with respect to the practice of foreign
accountants in this country remains unchanged, the action intended by the Board
of Accountancy, to suspend or revoke the certificates already issued to such
persons must be based on some other grounds, such ignorance, incapacity,
deception or fraud on the part of the holder of the certificates.
ISSUE: WON an accountant from the United Kingdom, granted
with certificates to practice, may practice the profession of certified public
accountant in the Philippines.
HELD: Yes.
Section 12 of Act No. 3105, as
amended, reads:
Section
12. Any person who has been engaged in the professional accountancy work in the
Philippine Islands for a period of five years or more prior to the date of his
application, and who holds certificates as certified public accountant, or as
chartered accountant, or other similar certificates or degrees in the country
of nationality, shall be entitled to registration as certified public
accountant and to receive a certificate of registration as such certified
public accountant from the Board, Provided such
country or state does not restrict the right of the Filipino certified public
accountants to practice therein or grants reciprocal rights to Filipino
certified public accountants to practice therein or grants reciprocal rights to
Filipinos, and provided that the application for their registration shall be
filed with the Board not later than December 31,1938.
From the text of the above-quoted
section 12 of the Accountancy Law, it is inferred that the registration as
certified public accountant and the issuance of the corresponding certificate
as such certified public accountant, to a person
who for five years has been engaged in professional accountancy work in the
Philippines and is a holder of a certificate as certified public accountant,
or as a chartered accountant, or other similar degrees in the country of his
origin, is predicated on the fact that the country of origin of such foreign
applicant (a) "does not restrict
the right of the Filipino certified public accountant to practice
therein," (b) "grants reciprocal rights to the Filipinos," and
(c) the application for registration "be filed with the Board not later
than December 31, 1938."
In the case at bar, while the
profession of certified public accountant is not controlled or regulated by the
Government of Great Britain, the country of origin of respondent Robert Orr
Ferguson, according to the record, said
respondent had been admitted in this country to the practice of his profession
as certified public accountant on the strength of his membership of the
Institute of Accountants and Actuaries in Glasgow (England), incorporated by
the Royal Charter of 1855.
The question of his entitlement
to admission to the practice of his profession in this jurisdiction, does not , therefore, come under
reciprocity, as this principle is known in International Law, but it is
included in the meaning of comity, as expressed in the alternative condition of
the proviso of the above-quoted section 12 which says: such country or
state does not restrict the right of Filipino certified public accountants to
practice therein.
Mutuality,
reciprocity, and comity as bases or elements. — International Law is founded largely upon
mutuality, reciprocity, and the principle of comity of nations. Comity, in this
connection, is neither a matter of absolute obligation on the one hand, nor of
mere courtesy and good will on the other; it is the recognition which one
nation allows within its territory to the acts of foreign governments and
tribunals, having due regard both to the international duty and convenience and
the rights of its own citizens or of other persons who are under the protection
of its laws. The fact of reciprocity
does not necessarily influence the application of the doctrine of comity,
although it may do so and has been given consideration in some instances.
(30 Am. Jur., 178; Hilton vs. Guyot, 159 U. S., 113, 40 Law. ed., 95; 16 S.
Ct., 139.)
In Hilton vs. Guyot (supra),
the highest court of the United States said that comity "is the
recognition which one nation allows within its territory to the legislative,
executive, or judicial acts of another nation, having due regard both to
International duty and convenience, and to the rights of its own citizens or of
other persons who are under the protection of its laws. "
The record shows that the British
Minister accredited to the Philippine Republic in two notes concerning this
question, addressed to the President of the Philippines in his capacity as Head
of the Department of Foreign Affairs, said:
that qualified Philippine citizen
are allowed to practice the profession of accountancy including income tax
accounting, in the United Kingdom.
We are bound to take notice of
the fact that fact that the Philippine and the United Kingdom, are bound by a treaty of friendship and commerce,
and each nation is represented in the other by corresponding diplomatic envoy.
There is no reason whatsoever to doubt the statement and assurance made by the
diplomatic representative of the British Government in the Philippines, regarding
the practice of the accountancy profession in the United Kingdom and the fact
that Filipino certified public accountant will be admitted to practice their
profession in the United Kingdom should they choose to do so.
Under such circumstances, and without
necessarily construing that such attitude of the British Government in the
premises, as represented by the British Minister, amounts to reciprocity, we
may at least state that it comes within the realm of comity, as contemplated in
our law.
It appearing that the record fails to show that the
suspension of this respondent is . . . based on any of the cause provided by
the Accountancy Law, we find no reason why Robert Orr Ferguson, who had
previously been registered as certified public accountants and issued the
corresponding certificate public accountant in the Philippine Islands, should
be suspended from the practice of his profession in these Islands. The petition
is denied, with cost.
4. BANK OF AMERICA, NT
and SA, petitioner, vs. AMERICAN REALTY CORPORATION and COURT OF
APPEALS, respondents.
321 SCRA 659 (1999)
Facts:
The
Bank of America NT & SA (BANTSA) is an international banking and financing
institution duly licensed to do business in the Philippines, organized and
existing under by virtue of the State of California, USA while private
respondent American Realty Corporation (ARC) is a domestic corporation. Bank of
America International Limited (BAIL), on the other hand, is a limited liability
company organized and existing under the laws of England.
BANTSA
and BAIL granted three major multi-million US dollar loans to three corporate
borrowers who are foreign affiliates of ARC. Due to the default in the
payments, BANTSA and the corporate borrowers signed and entered into
restructuring agreements, having additional securities of two real estate
mortgages by the private respondent. Upon the restructured loan maturity, the
corporate debtors failed to pay and the petitioner bank filed 4 collection
cases before foreign courts (England and Hong Kong) against the corporate
debtors.
At the
same time, BANTSA also filed an extrajudicial foreclosure of real estate
mortgage in the office of the Provincial Sheriff of Bulacan, Philippines, and
said mortgaged real properties were sold in a public auction with Integrated
Credit and Corporation Services Co. (ICCS) for the sum of P 24, 000, 000.00.
The
respondent files action for damages against petitioner due to the act of
foreclosing the real estate mortgage extrajudicially despite the pending civil
suits before the foreign courts to collect the principal loan. Petitioner
contends that the respondent is not made a party on the collection case before
the foreign courts for being a third party mortgagor and such actions were
filed in foreign courts and thus decisions rendered on such courts are not
enforceable in the Philippines unless a separate action is filed in the
Philippines to enforce such judgment, and that under the English law which is
the law governing in the principal agreement, the mortgagee does not lose its
security interest by filing a civil action for sum of money. Respondent, on the
other hand, filed a motion for suspension of the redemption period on the
ground that it cannot exercise said right of redemption without at the same
time waiving or contradicting its contentions in the case that the foreclosure
of the mortgage on its properties is legally improper and therefore invalid.
The
lower court rendered judgment in favor of ARC declaring that the filing of
civil suit on collection of a sum of money in foreign courts constitutes a
waiver on the security of the mortgages.
Issue:
WON
petitioner’s act of filing a collection suit against the principal debtors for
the recovery of the loan before foreign courts constituted a waiver of the remedy
of foreclosure.
Held: Yes.
1.
Loan; Mortgage; remedies:
As to
the issue of availability of remedies, petitioner submits that a waiver of the
remedy of foreclosure requires the concurrence of two requisites: an ordinary
civil action for collection should be filed and subsequently a final judgment
be correspondingly rendered therein.
In the
absence of express statutory provisions, a mortgage creditor may institute
against the mortgage debtor either a personal action or debt or a real action
to foreclose the mortgage. In other words, he may pursue either of the two
remedies, but not both. By such election, his cause of action can by no means
be impaired, for each of the two remedies is complete in itself. In our
jurisdiction, the remedies available to the mortgage creditor are deemed
alternative and not cumulative. Notably, an election of one remedy operates as
a waiver of the other. For this purpose, a remedy is deemed chosen upon the
filing of the suit for collection or upon the filing of the complaint in an
action for foreclosure of mortgage. As to extrajudicial foreclosure, such
remedy is deemed elected by the mortgage creditor upon filing of the petition
not with any court of justice but with the Office of the Sheriff of the
province where the sale is to be made.
Contrary
to petitioner’s arguments, the mere act of filing of an ordinary action for
collection operates as a waiver of the mortgage-creditors remedy to foreclose
the mortgage. By the mere filing of the ordinary action for collection against
the principal debtors, the petitioner in the present case is deemed to have
elected a remedy, as a result of which a waiver of the other necessarily must
arise. Corollarily, no final judgment in the collection suit is required for
the rule on waiver to apply.
In the
case at bar, petitioner BANTSA only has one cause of action which is
non-payment of the debt. Nevertheless, alternative remedies are available for
its enjoyment and exercise. Petitioner then may opt to exercise only one of two
remedies so as not to violate the rule against splitting a cause of action.
Accordingly,
applying the foregoing rules, we hold that petitioner, by the expediency of
filing four civil suits before foreign courts, necessarily abandoned the remedy
to foreclose the real estate mortgages constituted over the properties of
third-party mortgagor and herein private respondent ARC. Moreover, by filing
the four civil actions and by eventually foreclosing extra-judicially the
mortgages, petitioner in effect transgressed the rules against splitting a
cause of action well-enshrined in jurisprudence and our statute books.
2.
Conflicts of Law
Incidentally,
petitioner alleges that under English Law, which according to petitioner is the
governing law with regard to the principal agreements, the mortgagee does not
lose its security interest by simply filing civil actions for sums of money.
We
rule in the negative. Philippine law shall apply notwithstanding the evidence
presented by petitioner to prove the English law on the matter.
In a
long line of decisions, this Court adopted the well-imbedded principle in our
jurisdiction that there is no judicial notice of any foreign law. A foreign law
must be properly pleaded and proved as a fact. Thus, if the foreign law
involved is not properly pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or internal law. This is what
we refer to as the doctrine of processual presumption.
In the
instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved, said foreign law would still not find
applicability. Thus, when the foreign law, judgment or contract is contrary to
a sound and established public policy of the forum, the said foreign law,
judgment or order shall not be applied.
Additionally,
prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. The public policy sought to be
protected in the instant case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action. Moreover, foreign law
should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum. To give justice is the most important
function of law; hence, a law, or judgment or contract that is obviously unjust
negates the fundamental principles of Conflict of Laws. It is proper that
Philippine law should be upheld since it is the country upon which the case is
filed. Therefore the filing of a collection case by the petitioner in foreign
courts is a waiver for the remedy of foreclosure of real estate mortgage.
5. Hilton v. Guyot, 159 U.S. 113 (1895)
FACTS:
The first of these two
cases was an action at law, brought December 18, 1885, in the Circuit Court of
the United States for the Southern District of New York, by Gustave Bertin Guyot,
as official liquidator of the firm of Charles Fortin & Co., and by the
surviving members of that firm, all aliens and citizens of the Republic of
France, against Henry Hilton and William Libbey, citizens of the United
States and of the State of New York and trading as copartners in the cities of
New York and Paris and elsewhere under the firm name of A. T. Stewart & Co.
The action was upon a judgment recovered in a French court at Paris, in
the Republic of France, by the firm of Charles Fortin & Co., all of whose
members were French citizens, against Hilton & Libbey, trading as
copartners, as aforesaid, and citizens of the United States and of the State of
New York.
The complaint alleged
that in 1886 and since, during the time of all the transactions included in the
judgment sued on, Hilton and Libbey, as successors to Alexander T. Stewart and
Libbey, under the firm name of A. T. Stewart & Co., carried on a general
business as merchants in the Cities of New York and Paris and elsewhere, and
maintained a regular store and place of business at Paris; that during the same
time, Charles Fortin & Co. carried on the manufacture and sale of gloves at
Paris, and the two firms had there large dealings in that business, and
controversies arose in the adjustment of accounts between them.
The complaint further
alleged that between March 1, 1879, and December 1, 1882, five suits were
brought by Fortin & Co. against Stewart & Co. for sums alleged to be
due, and three suits by Stewart & Co. against Fortin & Co., in the Tribunal
of Commerce of the Department of the Seine, a judicial tribunal or court
organized and existing under the laws of France, sitting at Paris and
having jurisdiction of suits and controversies between merchants or traders growing out of commercial dealings between
them; that Stewart & Co. appeared by their authorized attorneys in all
those suits, and that, after full hearing before an arbitrator appointed by
that court and before the court itself, and after all the suits had been
consolidated by the court, final judgment was rendered on January 20, 1883,
that Fortin & Co. recover of Stewart & Co. various sums, arising out of
the dealings between them, amounting to 660,847 francs, with interest, and
dismissed part of Fortin & Co.'s claim.
The complaint further
alleged that appeals were taken by both parties from that judgment to the Court
of Appeal of Paris, Third Section, an appellate court of record organized and
existing under the laws of the Republic of France and having jurisdiction of
appeals from the final judgments of the Tribunal of Commerce of the Department
of the Seine, where the amount in dispute exceeded the sum of 1,500 francs,
and that the said Court of Appeal, by a final judgment rendered March 19, 1884,
and remaining of record in the office of its clerk at Paris, after hearing the
several parties by their counsel, and upon full consideration of the merits,
dismissed the appeal of the defendants, confirmed the judgment of the lower
court in favor of the plaintiffs, and ordered, upon the plaintiffs' appeal,
that they recover the additional sum of 152,528 francs, with 182,849 francs for
interest on all the claims allowed, and 12,559 francs for costs and expenses.
The complaint further
alleged that Guyot had been duly appointed by the Tribunal of Commerce of the
Department of the Seine official liquidator of the firm of Forth & Co.,
with full powers, according to law and commercial usage, for the verification
and realization of its property, both real and personal, and to collect and cause
to be executed the judgments aforesaid.
The complaint further
alleged that the judgment of the Court of Appeals of Paris, and the judgment of
the Tribunal of Commerce, as modified by the judgment of the appellate court,
still remain in full force and effect;
"that the said
courts respectively had jurisdiction of the subject matter of the controversies
so submitted to them, and of the parties, the said defendants having
intervened, by their attorneys and counsel, and applied for affirmative relief
in both courts; that the plaintiffs have hitherto been unable to collect the
said judgments or any part thereof, by reason of the absence of the said
defendants, they having given up their business in Paris prior to the recovery
of the said judgment on appeal, and having left no property within the
jurisdiction of the Republic of France out of which the said judgments might be
made;"
and that there are
still justly due and owing from the defendants to the plaintiffs upon those
said judgments certain sums, specified in the complaint, and amounting in all
to 1,008,783 francs in the currency of the Republic of France, equivalent to
$195,122.47.
The defendants, in
their answer, set forth in detail the original contracts and transactions in
France between the parties and the subsequent dealings between them modifying
those contracts, and alleged that the plaintiffs had no just claim against the
defendants, but that, on the contrary, the defendants, upon a just settlement
of the accounts, were entitled to recover large sums from the plaintiffs.
The answer admitted the
proceedings and judgments in the French courts and that the defendants gave up
their business in France before the judgment on appeal, and had no property
within the jurisdiction of France out of which that judgment could be
collected.
The answer further
alleged that the Tribunal of Commerce of the Department of the Seine was a
tribunal whose judges were merchants, ship captains, stockbrokers, and persons
engaged in commercial pursuits, and of which Charles Fortin had been a member
until shortly before the commencement of the litigation.
The answer further
alleged that in the original suits brought against the defendants by Fortin
& Co., the citations were left at their storehouse in Paris; that they were
then residents and citizens of the State of New York, and neither of them at
that time, or within four years before, had been within, or resident or
domiciled within, the jurisdiction of that tribunal or owed any allegiance to
France, but that they were the owners of property situated in that country
which would by the law of France have been liable to seizure if they did not
appear in that tribunal, and that they unwillingly, and solely for the purpose
of protecting that property, authorized and caused an agent to appear for them
in those proceedings, and that the suits brought by them against Fortin &
Co. were brought for the same purpose, and in order to make a proper defense,
and to establish counterclaims arising out of the transactions between the
parties, and to compel the production and inspection of Fortin & Co.'s
books, and that they sought no other affirmative relief in that tribunal.
The answer further
alleged that, pending that litigation, the defendants discovered gross frauds
in the accounts of Fortin & Co., that the arbitrator and the tribunal
declined to compel Fortin & Co. to produce their books and papers for
inspection, and that, if they had been produced, the judgment would not have
been obtained against the defendants.
The answer further
alleged that without any fault or negligence on the part of the defendants,
there was not a full and fair trial of the controversies before the arbitrator,
in that no witness was sworn or affirmed; in that Charles Fortin was permitted
to make, and did make, statements not under oath containing many falsehoods; in
that the privilege of cross-examination of Fortin and other persons who made
statements before the arbitrator was denied to the defendants, and in that
extracts from printed newspapers, the knowledge of which was not brought home
to the defendants, and letters and other communications in writing between
Fortin & Co. and third persons, to which the defendants were neither privy
nor party, were received by the arbitrator; that without such improper evidence,
the judgment would not have been obtained, and that the arbitrator was deceived
and misled by the false and fraudulent accounts introduced by Fortin & Co.
and by the hearsay testimony given, without the solemnity of an oath and
without cross-examination, and by the fraudulent suppression of the books and
papers.
The answer further
alleged that Fortin & Co. made up their statements and accounts falsely and
fraudulently, and with intent to deceive the defendants and the arbitrator and
the said courts of France, and those courts were deceived and misled thereby;
that owing to the fraudulent suppression of the books and papers of Fortin
& Co. upon the trial and the false statements of Fortin regarding matters
involved in the controversy, the arbitrator and the courts of France
"were deceived and
misled in regard to the merits of the controversies pending before them, and
wrongfully decided against said Stewart & Co., as hereinbefore stated; that
said judgment, hereinbefore mentioned, is fraudulent, and based upon false and
fraudulent accounts and statements, and is erroneous in fact and in law, and is
void; that the trial hereinbefore mentioned was not conducted according to the
usages and practice of the common law, and the allegations and proofs given by
said Fortin & Co., upon which said judgment is founded, would not be
competent or admissible in any court or tribunal of the United States, in any
suit between the same parties involving the same subject matter, and it is
contrary to natural justice and public policy that the said judgment should be
enforced against a citizen of the United States, and that, if there had been a
full and fair trial upon the merits of the controversies so pending before said
tribunals, no judgment would have been obtained against said Stewart &
Co."
"Defendants,
further answering, allege that it is contrary to natural justice that the
judgment hereinbefore mentioned should be enforced without an examination of
the merits thereof; that by the laws of the Republic of France, to-wit, article
181 [121] of the Royal Ordinance of June 15, 1629, it is provided namely:"
"Judgments
rendered, contracts or obligations recognized, in foreign kingdoms and
sovereignties, for any cause whatever shall give rise to no lien or execution
in our Kingdom. Thus, the contracts shall stand for simple promises, and,
notwithstanding such judgments, our subjects against whom they have been
rendered may contest their rights anew before our own judges."
"And it is further
provided by the laws of France, by article
546 of the Code de Procedure Civile, as follows:"
" Judgments
rendered by foreign tribunals shall be capable of execution in France only in
the manner and in the cases set forth by articles 2123 and 2128 of the Civil
Code."
"And it is further
provided by the laws of France, by article 2128 [2123] of the Code de Procedure
Civile [Civil Code]:"
" A lien cannot,
in like manner, arise from judgments rendered in any foreign country, save only
as they have been declared in force by a French tribunal, without prejudice,
however, to provisions to the contrary, contained in public laws and
treaties."
"[And by article
2128 of that Code: 'Contracts entered into in a foreign country cannot give a
lien upon property in France if there are no provisions contrary to this
principle in public laws or in treaties.']"
"That the
construction given to said statutes by the judicial tribunals of France is such
that no comity is displayed towards the judgments of tribunals of foreign
countries against the citizens of France, when sued upon in said courts of
France, and the merits of the controversies upon which the said judgments are
based are examined anew, unless a treaty to the contrary effect exists between
the said Republic of France and the country in which such judgment is obtained.
That no treaty exists between the said Republic of France and the United
States, by the terms or effect of which the judgments of either country are
prevented from being examined anew upon the merits, when sued upon in the courts
of the country other than that in which it is obtained. That the tribunals of
the Republic of France give no force and effect, within the jurisdiction of the
said country, to the duly rendered judgments of courts of competent
jurisdiction of the United States against citizens of France, after proper
personal service of the process of said courts is made thereon in this
country."
The answer further set
up, by way of counterclaim and in detail, various matters arising out of the
dealings between the parties, and alleged that none of the plaintiffs had since
1881 been residents of the State of New York, or within the jurisdiction of
that state, but the defendants were, and always had been, residents of that
state.
The answer concluded by
demanding that the plaintiffs' complaint be dismissed, and that the defendants
have judgment against them upon the counterclaims, amounting to $102,942.91.
The plaintiffs filed a
replication to so much of the answer as made counterclaims, denying its
allegations and setting up in bar thereof the judgment sued on.
The defendants, on June
22, 1888, filed a bill in equity against the plaintiffs setting forth the same
matters as in their answer to the action at law and praying for a discovery and
for an injunction against the prosecution of the action. To that bill a plea
was filed setting up the French judgments, and upon a hearing, the bill was
dismissed. 42 F. 249. From the decree dismissing the bill an appeal was taken,
which is the second case now before this Court.
The action at law
afterwards came on for trial by a jury, and the plaintiffs put in the records
of the proceedings and judgments in the French courts, and evidence that the
jurisdiction of those courts was as alleged in the complaint and that the
practice followed and the method of examining the witnesses were according to
the French law, and also proved the title of Guyot as liquidator.
It was admitted by both
parties that for several years prior to 1876, the firm of Alexander T. Stewart
& Co., composed of Stewart and Libbey, conducted their business as
merchants in the City of New York, with branches in other cities of America and
Europe; that both partners were citizens and residents of the City and State of
New York during the entire period mentioned in the complaint, and that in
April, 1876, Stewart died, and Hilton and Libbey formed a partnership to
continue the business under the same firm name, and became the owners of all
the property and rights of the old firm.
The defendants made
numerous offers of evidence in support of all the specific allegations of fact
in their answer, including the allegations as to the law and comity of France.
The plaintiffs, in their brief filed in this Court, admitted that most of these
offers
"were offers to
prove matters in support of the defenses and counterclaims set up by the
defendants in the cases tried before the French courts, and which, or most of
which, would have been relevant and competent if the plaintiffs in error are
not concluded by the result of those litigations, and have now the right to try
those issues, either on the ground that the French judgments are only prima
facie evidence of the correctness of those judgments, or on the ground that the
case is within the exception of a judgment obtained by fraud."
The defendants, in
order to show that they should not be concluded by having appeared and
litigated in the suits brought against them by the plaintiffs in the French
courts, offered to prove that they were residents and citizens of the State of
New York, and neither of them had been, within four years prior to the
commencement of those suits, domiciled or resident within the jurisdiction of
those courts; that they had a purchasing agent and a storehouse in Paris, but
only as a means or facility to aid in the transaction of their principal
business, which was in New York, and they were never otherwise engaged in
business in France; that neither of them owed allegiance to France, but they
were the owners of property there which would, according to the laws of France,
have been liable to seizure if they had not appeared to answer in those suits;
that they unwillingly, and solely for the purpose of protecting their property
within the jurisdiction of the French tribunal, authorized an agent to appear,
and he did appear in the proceedings before it, and that their motion to compel
an inspection of the plaintiffs' books, as well as the suits brought by the
defendants in France, were necessary by way of defense or counterclaim to the
suits there brought by the plaintiffs against them.
Among the matters which
the defendants alleged and offered to prove in order to show that the French
judgments were procured by fraud were that Fortin & Co., with intent to
deceive and defraud the defendants, and the arbitrator and the courts of
France, entered in their books, and presented to the defendants, and to the
French courts, accounts bearing upon the transactions in controversy which were
false and fraudulent, and contained excessive and fraudulent charges against
the defendants in various particulars, specified; that the defendants made due
application to the Tribunal of Commerce to compel Fortin & Co. to allow
their account books and letter books to be inspected by the defendants, and the
application was opposed by Fortin & Co., and denied by the tribunal; that
the discovery and inspection of those books were necessary to determine the
truth of the controversies between the parties; that before the Tribunal of
Commerce, Charles Fortin was permitted to and did give in evidence statements
not under oath relating to the merits of the controversies there pending, and
falsely represented that a certain written contract made in 1873 between
Stewart & Co. and Fortin & Co. concerning their dealings was not
intended by the parties to be operative according to its terms, and in support
of that false representation made statements as to admissions by Stewart in a
private conversation with him, and that the defendants could not deny those
statements, because Stewart was dead, and they were not protected from the
effect of Fortin's statements by the privilege of cross-examining him under
oath, and that the French judgments were based upon false and fraudulent
accounts presented and statements made by Fortin & Co. before the Tribunal
of Commerce during the trial before it.
The records of the
judgments of the French courts, put in evidence by the plaintiffs, showed that
all the matters now relied on to show fraud were contested in and considered by
those courts.
The plaintiffs objected
to all the evidence offered by the defendants on the grounds that the matters
offered to be proved were irrelevant, immaterial, and incompetent; that in
respect to them the defendants were concluded by the judgment sued on and given
in evidence, and that none of those matters, if proved, would be a defense to
this action upon that judgment.
The court declined to
admit any of the evidence so offered by the defendants, and directed a verdict
for the plaintiffs in the sum of $277,775.44, being the amount of the French
judgment and interest. The defendants, having duly excepted to the rulings and
direction of the court, sued out a writ of error.
The writ of error in
the action at law and the appeal in the suit in equity were argued together in
this Court in January, 1894, and, by direction of the Court, were reargued in
April, 1894, before a full Bench.
ISSUE:
Whether or not the decision rendered by the Tribunal of Commerce of the
Department of the Seine has the force and effect beyond the limits of its
sovereignty.
RULING:
NO.
International law, in
its widest and most comprehensive sense -- including not only questions of
right between nations, governed by what has been appropriately called the
"law of nations," but also questions arising under what is usually
called "private international law," or the "conflict of
laws," and concerning the rights of persons within the territory and
dominion of one nation by reason of acts, private or public, done within the
dominions of another nation -- is part of our law, and must be ascertained and
administered by the courts of justice as often as such questions are presented
in litigation between man and man, duly submitted to their determination.
No law
has any effect, of its own force, beyond the limits of the sovereignty from
which its authority is derived. The extent to which the law
of one nation, as put in force within its territory, whether by executive
order, by legislative act, or by judicial decree shall be allowed to operate
within the dominion of another nation depends upon what our greatest jurists
have been content to call "the
comity of nations." Although the phrase has been often criticized, no
satisfactory substitute has been suggested.
"Comity," in the legal sense, is
neither a matter of absolute obligation, on the one hand, nor of mere courtesy
and goodwill, upon the other. But it is the recognition which one nation allows
within its territory to the legislative, executive, or judicial acts of another
nation, having due regard both to international duty and convenience and to the
rights of its own citizens or of other persons was are under the protection of
its laws.
Mr. Justice Story says:
"It has been
thought by some jurists that the term comity is not sufficiently expressive of
the obligation of nations to give effect to foreign laws when they are not
prejudicial to their own rights and interests. And it has been suggested that
the doctrine rests on a deeper foundation; that it is not so much a matter of
comity or courtesy as a matter of paramount moral duty. Now, assuming that such
a moral duty does exist, it is clearly one of imperfect obligation, like that
of beneficence, humanity, and charity. Every nation must be the final judge for
itself not only of the nature and extent of the duty, but of the occasions on
which its exercise may be justly demanded."
And after further
discussion of the matter, be concludes:
"There is, then,
not only no impropriety in the use of the phrase 'comity of nations,' but it is
the most appropriate phrase to express the true foundation and extent of the
obligation of the laws of one nation within the territories of another."
Story's Conflict of
Laws §§ 33-38.
Chief
Justice Taney, likewise, speaking for this Court, while Mr.
Justice Story was a member of it, and largely adopting his words, said:
"It is needless to
enumerate here the instances in which, by the general practice of civilized
countries, the laws of the one will, by the comity of nations, be recognized
and executed in another where the rights of individuals are concerned. . . .
The comity thus extended to other nations is no impeachment of sovereignty. It
is the voluntary act of the nation by which it is offered, and is inadmissible
when contrary to its policy, or prejudicial to its interests. But it
contributes so largely to promote justice between individuals, and to produce a
friendly intercourse between the sovereignties to which they belong, that
courts of justice have continually acted upon it as a part of the voluntary law
of nations. . . . It is not the comity of the courts, but the comity of the
nation, which is administered and ascertained in the same way, and guided by
the same reasoning, by which all other principles of municipal law are
ascertained and guided."
Bank v. Earle (1839),
13 Pet. 519, 38 U. S. 589; Story on Conflict of Laws § 38.
Mr.
Wheaton says:
"All the effect
which foreign laws can have in the territory of a state depends absolutely on
the express or tacit consent of that state. . . . The express consent of a
state to the application of foreign laws within its territory is given by acts
passed by its legislative authority, or by treaties concluded with other
states. Its tacit consent is manifested by the decisions of its judicial and
administrative authorities, as well as by the writings of its publicists. There
is no obligation recognized by legislators, public authorities, and publicists
to regard foreign laws; but their application is admitted only from
considerations of utility and the mutual convenience of states, ex commitate,
ob reciprocam utilitatem."
Wheaton's International
Law (8th ed.) §§ 78, 79.
"No
sovereign is bound, unless by special
compact, to execute within his dominions a judgment rendered by the
tribunals of another state, and if execution be sought by suit upon the judgment
or otherwise, the tribunal in which the suit is brought, or from which
execution is sought, is on principle at liberty to examine into the merits of
such judgment, and to give effect to it or not, as may be found just and
equitable. The general comity, utility, and convenience of nations
have, however, established a usage among most civilized states by which the
final judgments of foreign courts of competent jurisdiction are reciprocally
carried into execution, under certain regulations and restrictions, which
differ in different countries."
§ 147.
Chancellor Kent says:
"The effect to be given to foreign judgments is altogether a matter of
comity in cases where it is not regulated by treaty." 2 Kent Com. (6th
ed.) 120.
In order to appreciate
the weight of the various authorities cited at the bar, it is important to
distinguish different kinds of judgments. Every foreign judgment, of whatever
nature, in order to be entitled to any effect, must have been rendered by a
court having jurisdiction of the cause, and upon regular proceedings, and due
notice. In alluding to different kinds of judgments, therefore, such
jurisdiction, proceedings, and notice will be assumed. It will also be assumed
that they are untainted by fraud, the effect of which will be considered later.
A judgment in rem,
adjudicating the title to a ship or other movable property within the custody
of the court, is treated as valid everywhere. As said by Chief Justice
Marshall:
"The sentence of a
competent court proceeding in rem is conclusive with respect to the thing
itself, and operates as an absolute change of the property. By such sentence,
the right of the former owner is lost and a complete title given to the person
who claims under the decree. No court of coordinate jurisdiction can examine
the sentence. The question, therefore, respecting its conformity to general or
municipal law can never arise, for no coordinate tribunal is capable of making
the inquiry."
Other judgments, not
strictly in rem, under which a person has been compelled to pay money, are so
far conclusive that the justice of the payment cannot be impeached in another
country, so as to compel him to pay it again. For instance, a judgment in
foreign attachment is conclusive, as between the parties, of the right to the property
or money attached. Story on Conflict of Laws (2d ed.) § 592a. And if, on the
dissolution of a partnership, one partner promises to indemnify the other
against the debts of the partnership, a judgment for such a debt, under which
the latter has been compelled to pay it, is conclusive evidence of the debt in
a suit by him to recover the amount upon the promise of indemnity. It was of
such a judgment and in such a suit that Lord Nottingham said:
"Let the plaintiff
receive back so much of the money brought into court as may be adequate to the
sum paid on the sentence for custom, the justice whereof is not examinable
here."
Gold v. Canham (1679),
2 Swanst. 325, 1 Cas. in Ch. 311. See also Tarleton v. Tarleton, 4 M. & S.
20; Konitzky v. Meyer, 49 N.Y. 571.
Other foreign judgments
which have been held conclusive of the matter adjudged were judgments
discharging obligations contracted in the foreign country between citizens or
residents thereof. Story on Conflict of Laws §§ 330-341; May v. Breed, 7 Cush. 15.
Such was the case cited at the bar of Burroughs or Burrows v. Jamineau or
Jemino, Mosely 1, 2 Strange 733, 2 Eq.Cas.Ab. p. 525, pl. 7, 12 Vin.Ab. p. 87,
pl. 9 Sel.Cas. in Ch. 69; 1 Dickens 48.
The extraterritorial
effect of judgments in personam at law or in equity may differ according to the
parties to the cause. A judgment of that kind between two citizens or residents
of the country, and thereby subject to the jurisdiction in which it is
rendered, may be held conclusive as between them everywhere. So if a foreigner
invokes the jurisdiction by bringing an action against a citizen, both may be
held bound by a judgment in favor of either, and if a citizen sues a foreigner
and judgment is rendered in favor of the latter, both may be held equally
bound. Ricardo v. Garcias, 12 Cl. & Fin. 368; The Griefswald, Swabey 430,
435; Barber v. Lamb, 8 C.B. (N.S.) 95; Lea v. Deakin, 11 Bissell 23.
The effect to which a
judgment, purely executory, rendered in favor of a citizen or resident of the
country, in a suit there brought by him against a foreigner, may be entitled in
an action thereon against the latter in his own country, as is the case now
before us, presents a more difficult question, upon which there has been some
diversity of opinion.
Early in the last century,
it was settled in England that a foreign judgment on a debt was considered not
like a judgment of a domestic court of record, as a record or a specialty, a
lawful consideration for which was conclusively presumed, but as a simple
contract only.
This clearly appears in
Dupleix v. De Roven (1705), where one of two merchants in France recovered a
judgment there against the other for a sum of money, which not being paid, he
brought a suit in chancery in England for a discovery of assets and satisfaction
of the debt, and the defendant pleaded the statute of limitations of six years,
and prevailed, Lord Keeper Cowper saying:
"Although the
plaintiff obtained a judgment or sentence in France, yet here the debt must be
considered as a debt by simple contract. The plaintiff can maintain no action
here but an indebitatus assumpsit or an insimul computassent, so that the
statute of limitations is pleadable in this case."
2 Vernon 540.
In De Brimont v. Penniman (1873), in the Circuit Court of the United
States for the Southern District of New York, Judge Woodruff said:
"The principle on
which foreign judgments receive any recognition from our courts is one of
comity. It does not require, but rather forbids, it where such a recognition
works a direct violation of the policy of our laws, and does violence to what
we deem the rights of our citizens."
Mr. Justice Story and
Chancellor Kent, concurred in the opinion that, in a suit upon a foreign
judgment, the whole merits of the case could not as matter of course be
reexamined anew, but that the defendant was at liberty to impeach the
judgment not only by showing that the court had no jurisdiction of the case or
of the defendant, but also by showing that it was procured by fraud, or was
founded on clear mistake or irregularity, or was bad by the law of the place
where it was rendered. Story on Conflict of Laws § 607; 2 Kent Com. (6th
ed.) 120.
Mr. Justice Blackburn,
indeed, in determining how far a foreign judgment could be impeached either for
error in law or for want of jurisdiction, expressed the opinion that the effect
of such a judgment did not depend upon what he termed "that which is
loosely called comity,'" but upon the saying of Baron Parke, above quoted,
and consequently
"that anything
which negatives the existence of that legal obligation or excuses the defendant
from the performance of it must form a good defense to the action."
It is objected that the
appearance and litigation of the defendants in the French tribunals were not
voluntary, but by legal compulsion, and therefore that the French courts never
acquired such jurisdiction over the defendants that they should be held bound
by the judgment.
Upon the question what
should be considered such a voluntary appearance as to amount to a submission
to the jurisdiction of a foreign court, there has been some difference of
opinion in England.
But it is now settled
in England that while an appearance by the defendant in a court of a foreign
country, for the purpose of protecting his property already in the possession
of that court, may not be deemed a voluntary appearance, yet an appearance
solely for the purpose of protecting other property in that country from
seizure is considered as a voluntary appearance. De Cosse Brissac v. Rathbone
(1861), 6 H. & N. 301, 20 Law Journal (N.S.) Exch. 238; Schibsby v.
Westenholz (1870), L.R. 6 Q.B. 155, 162; Voinet v. Barrett (1885), Cab. &
El. 554, 54 Law Journal (N.S.) Q.B. 521, and 55 Law Journal (N.S.) Q.B. 39.
The present case is not
one of a person traveling through or casually found in a foreign country. The
defendants, although they were not citizens or residents of France, but were
citizens and residents of the State of New York, and their principal place of
business was in the City of New York, yet had a storehouse and an agent in
Paris, and were accustomed to purchase large quantities of goods there,
although they did not make sales in France. Under such circumstances, evidence
that their sole object in appearing and carrying on the litigation in the
French courts was to prevent property in
their storehouse at Paris, belonging to them, and within the jurisdiction,
but not in the custody, of those courts from being taken in satisfaction of any
judgment that might be recovered against them would not, according to our law,
show that those courts did not acquire jurisdiction of the persons of the
defendants.
It is next objected
that in those courts, one of the plaintiffs was permitted to testify not
under oath, and was not subjected to cross-examination by the opposite party,
and that the defendants were therefore deprived of safeguards which are by our
law considered essential to secure honesty and to detect fraud in a witness,
and also that documents and papers were admitted in evidence with which the
defendants had no connection and which would not be admissible under our own
system of jurisprudence. But it having been shown by the plaintiffs, and hardly
denied by the defendants, that the practice followed and the method of
examining witnesses were according to the laws of France, we are not prepared
to hold that the fact that the procedure in these respects differed from that
of our own courts is, of itself, a sufficient ground for impeaching the foreign
judgment.
It is also contended
that a part of the plaintiffs' claim is affected by one of the contracts
between the parties having been made in violation of the revenue laws of the
United States, requiring goods to be invoiced at their actual market value.
Rev.Stat. § 2854. It may be assumed that, as the courts of a country will not
enforce contracts made abroad in evasion or fraud of its own laws, so they will
not enforce a foreign judgment upon such a contract. Armstrong v. Toler, 11
Wheat. 258; De Brimont v. Penniman, 10 Blatchford 436; Lang v. Holbrook, Crabbe
179; Story on Conflict of Laws §§ 244, 246; Wharton's Conflict of Laws, § 656.
But as this point does not affect the whole claim in this case, it is
sufficient for present purposes to say that there does not appear to have been
any distinct offer to prove that the invoice value of any of the goods sold by
the plaintiffs to the defendants was agreed between them to be or was in fact
lower than the actual market value of the goods.
It must however always
be kept in mind that it is the paramount duty of the court before which any
suit is brought to see to it that the parties have had a fair and impartial
trial before a final decision is rendered against either party.
***When
an action is brought in a court of this country by a citizen of a foreign
country against one of our own citizens to recover a sum of money adjudged by a
court of that country to be due from the defendant to the plaintiff, and the
foreign judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and
proofs and opportunity to defend against them, and its proceedings are according
to the course of a civilized jurisprudence, and are stated in a clear and
formal record, the judgment is prima facie evidence, at least, of the truth
of the matter adjudged, and it should be held conclusive upon the merits tried
in the foreign court unless some special
ground is shown for impeaching the judgment, as by showing that it was
affected by fraud or prejudice or that, by the principles of
international law and by the comity of our own country, it should not be given
full credit and effect.
There is no doubt that
both in this country, as appears by the authorities already cited, and in
England, a foreign judgment may be impeached for fraud.
But it is now
established in England by well considered and strongly reasoned decisions of
the Court of Appeal that foreign judgments may be impeached if procured by false and fraudulent representations and
testimony of the plaintiff, even if the same question of fraud was
presented to and decided by the foreign court.
In Mexico, the system
of reciprocity has been adopted by the Code of 1884 as the governing principle.
Constant, 168; Clunet, 1891, p. 290.
The rule of reciprocity
likewise appears to have generally prevailed in South America. In Peru, foreign
judgments do not appear to be executed without examining the merits unless when
reciprocity is secured by treaty. Clunet, 1879, pp. 266, 267; Piggott, 548. In
Chili, there appears to have been no legislation upon the subject, but,
according to a decision of the Supreme Court of Santiago in 1886, "the
Chilian tribunals should not award an exequatur, except upon decisions in
correct form, and also reserving the general principle of reciprocity."
Clunet, 1889, p. 135; Constant, 131-132.
In Brazil, foreign
judgments are not executed unless because of the country in which they were
rendered admitting the principle of reciprocity or because of a placet of the
government of Brazil, which may be awarded according to the circumstances of
the case. Constant, 124, and note; Moreau, No. 192; Piggott, 543-546; Westlake,
ubi sup. In the Argentine Republic, the principle of reciprocity was maintained
by the courts, and was affirmed by the Code of 1878 as a condition sine qua non
of the execution of foreign judgments, but has perhaps been modified by later
legislation. Moreau, No. 218; Palomeque, in Clunet, 1887, pp. 539-558.
It appears, therefore,
that there is hardly a civilized nation on either continent which by its
general law allows conclusive effect to an executory foreign judgment for the
recovery of money. In France and in a few smaller states -- Norway, Portugal,
Greece, Monaco, and Hayti -- the merits of the controversy are reviewed as of
course, allowing to the foreign judgment, at the most, no more effect than of
being prima facie evidence of the justice of the claim. In the great majority
of the countries on the continent of Europe -- in Belgium, Holland, Denmark,
Sweden, Germany, in many cantons of Switzerland, in Russia and Poland, in
Roumania, in Austria and Hungary (perhaps in Italy), and in Spain -- as well as
in Egypt, in Mexico, and in a great part of South America, the judgment
rendered in a foreign country is allowed the same effect only as the courts of
that country allow to the judgments of the country in which the judgment in
question is sought to be executed.
The prediction of Mr.
Justice Story (in § 618 of his Commentaries on the Conflict of Laws, already
cited) has thus been fulfilled, and the rule of reciprocity has worked itself
firmly into the structure of international jurisprudence.
The
reasonable, if not the necessary, conclusion appears to us to be that judgments
rendered in France, or in any other foreign country by the laws of which our
own judgments are reviewable upon the merits are not entitled to full credit
and conclusive effect when sued upon in this country, but are prima facie
evidence only of the justice of the plaintiffs' claim.
In holding such a
judgment, for want of reciprocity, not to be conclusive evidence of the merits
of the claim, we do not proceed upon any theory of retaliation upon one person
by reason of injustice done to another, but upon the broad ground that international law is founded upon mutuality and
reciprocity, and that by the principles of international law recognized in
most civilized nations, and by the comity of our own country, which it is our
judicial duty to known and to declare, the judgment is not entitled to be
considered conclusive.
By our law at the time
of the adoption of the Constitution, a foreign judgment was considered as prima
facie evidence, and not conclusive. There is no statute of the United
States, and no treaty of the United States with France or with any other
nation, which has changed that law or has made any provision upon the subject.
It is not to be supposed that if any statute or treaty had been or should be
made, it would recognize as conclusive the judgments of any country which did
not give like effect to our own judgments. In the absence of statute or treaty,
it appears to us equally unwarrantable to assume that the comity of the United
States requires anything more.
If we should hold this
judgment to be conclusive, we should allow it an effect to which, supposing the
defendants' offers to be sustained by actual proof, it would, in the absence of
a special treaty, be entitled in hardly any other country in Christendom except
the country in which it was rendered. If the judgment had been rendered in this
country, or in any other outside of the jurisdiction of France, the French
courts would not have executed or enforced it except after examining into its
merits. The very judgment now sued on would be held inconclusive in almost any
other country than France. In England and in the colonies subject to the law of
England, the fraud alleged in its procurement would be a sufficient ground for
disregarding it. In the courts of nearly every other nation, it would be
subject to reexamination either merely because it was a foreign judgment or
because judgments of that nation would be reexaminable in the courts of France.
For these reasons, in
the action at law, the Judgment is reversed, and the cause remanded to the
circuit court, with directions to set aside the verdict and to order a new
trial.
For the same reasons,
in the suit in equity between these parties, the foreign judgment is not a bar,
and therefore the Decree dismissing the bill is reversed the plea adjudged bad,
and the cause remanded to the circuit court for further proceedings not
inconsistent with this opinion.
Here’s a case digest I
got from the internet, in case you prefer the short one.
Brief Fact Summary
Hilton (Plaintiff) and
Libbey (Plaintiff) appealed from a federal district court holding that a French
court judgment against them for amounts allegedly owed to a French firm was
enforceable without retrial on the merits.
Synopsis of Rule of Law
No law has any effect,
of its own force, beyond the limits of the sovereignty from which its authority
is derived.
Facts:
Hilton (Plaintiff) and
Libbey (Plaintiff), New York citizens trading in Paris, were sued in France by
Guyot (Defendant), the administrator of a French firm, for sums allegedly owed
to that firm. The Plaintiffs appeared
and litigated the merits in the French proceeding. The French court rendered a judgment against
them that was affirmed by a higher court and became final. Defendant then sought to enforce that
judgment in federal district court in New York.
That court held the judgment enforceable without retrial on the
merits. The Plaintiffs then appealed to
the U.S. Supreme Court.
Issue:
Do laws have any
effect, of their own force, beyond the limits of the sovereignty from which its
authority is derived?
Held:
(Gray, J.) No. No
law has any effect, of its own force, beyond the limits of the sovereignty from
which its authority is derived. No
sovereign is bound, unless by special compact, to execute within his dominions
a judgment rendered by the tribunals of another state, and if execution be sought
by suit upon the judgment or otherwise, the tribunal in which the suit is
brought, or from which execution is sought, is, on principle, at liberty to
examine into the merits of such judgment, and to give effect to it or not, as
may be found just and equitable.
However, the general comity, utility and convenience of nations have
established a usage among most civilized states, by which the final judgments
of foreign courts of competent jurisdiction are reciprocally carried into
execution, under certain regulations and restrictions, which differ in
different countries. Additionally,
judgments rendered in France, or in any foreign country, by the laws of which
our own judgments are reviewable upon the merits, are not entitled to full
credit and conclusive effect when sued upon in this country, but are prima
facie evidence only of the justice of the plaintiffs’ claim. Reversed.
6. Clipperton Island Case (France vs.
Mexico)
Overview:
France
claimed to have occupied an island, but Mexico also claimed that Spain
discovered it and that it was the successor.
Facts:
Clipperton Island is an
uninhabited island coral atoll in the eastern Pacific Ocean, southwest of
Mexico, west of Costa Rica and northwest of Galapagos Islands, Equador. It was
named after John Clipperon, an English pirate who fought the Spanish during the
18th century who is said to have passed by the island. It was discovered by
French discovers Martin de Chassiron and Michel du Bocade in 1711, commanding
the French ships La Princesse and La Découverte. They drew up the first map and
annexed it to France. The first scientific expedition took place in 1725 under
Frenchman M. Bocage, who lived on the island for several months.
Other claimants
included the United States, whose American Guano Mining Company claimed it
under Guano Islands Act of 1856. Mexico also claimed it due to activities
undertaken therein as early as 1848-1849. On November 17, 1858, Emperor
Napoleon III annexed it as part of the French colony of Tahiti. This did not
settle the ownership question. After which, there were no apparent acts of
sovereignty on the part of France. The island remained without population. On
November 24, 1897, French naval authorities found three Americans working for
the American Guano Company, who had raised the American flag. U.S. authorities
denounced their act, assuring the French that they did not intend to assert
American sovereignty. Mexico reasserted its claim late in the 19th century, and
on December 13, 1897 sent the gunboat La Democrata to occupy and annex it. A
colony was established, and a series of military governors was posted, the last
one being Ramón Arnaud (1906–1916). France insisted on its ownership, and a
lengthy diplomatic correspondence between the two nations led to the conclusion
of a treaty on March 2, 1909, to seek the arbitration of King Victor Emmanuel
III of Italy, with each nation promising to abide by his determination. All the
inhabitants of the island sent by Mexico died in 1917. On January 28, 1931,
King Victor Emmanuel of Italy declared Clipperton to be a French possession. It
was ruled that Mexico was not able to prove historic right over the Island.
Issue:
Who
between France and Mexico has sovereignty over Clipperton Island?
Held:
FRANCE.
As ruled by King Victor
Emmanuel III of Italy, the Arbitrator, the discovery by Spain had not been
proved , and that France had notabandoned her claim and so had title to the
Island. Mere discovery gave a State an 'inchoate title': an option to occupy
the territory within areasonable time, during which time other States were not
allowed to occupy the territory. Also, to have effective occupation, there
should be: a) intention and will to act as sovereign and b) adequate exercise
or display of sovereignty.
Part of the decision
reads:
When
France proclaimed her sovereignty over Clipperton, the Island was in a legal
situation of terra nullius, and therefore susceptible to occupation. By the
regularity of the act of France, it is clear that it had the intention to
consider the island as his territory. It is beyond doubt that by immemorial
usage having the force of law, besides the animus occupandi, the actual, and
not the nominal, taking of possession is a necessary condition of occupation.
This taking of possession consists in the act, or series of acts, by which the
occupying state reduces to its possession the territory in question and takes
steps to exercise exclusive authority there. Strictly speaking, and in ordinary
cases, that only takes place when the state establishes in the territory itself
an organization capable of making its laws respected. But this step is,
properly speaking, but a means of procedure to the taking of possession, and,
therefore, is not identical with the latter. There may also be cases where it
is unnecessary to have recourse to this method. Thus, if a territory, by virtue
of the fact that it was completely uninhabited, is, from the first moment when
the occupying state makes its appearance there, at the absolute and undisputed
disposition of that state, from that moment the taking of possession must be
considered as accomplished, and the occupation is thereby completed.
7. Frontier Dispute Case (Burkina Faso v. Republic of
Mali)
FACTS:
This is a petition before the ICJ to resolve a
border dispute. Burkina Faso (previously the
Republic of Upper Volta) and the Republic of Mali each obtained independence in
1960 following decolonization. Later, the Organization of African Unity,
comprised of African Heads of State, was formed. In 1964, the Organization of
African Unity met in Cairo, Egypt and issued a resolution declaring that all
member States of the Organization of African Unity “solemnly pledge themselves
to respect the frontiers existing on their achievement of national
independence.” This resolution codified into law the age-old international
principle of uti possidetis.
In 1975, the Head of State of Mali made a statement indicating a lack of
respect for the existing boundaries between Mali and Burkina Faso. Mali and
Burkina Faso later submitted to a Chamber of the International Court of Justice
(ICJ) the question of the proper demarcation of boundary lines between the two
States. In considering the case, the ICJ discussed the principle of uti possidetis. Burkina
Faso and Mali submitted a question to the International Court of
Justice regarding a border dispute.
Issue:
Does
there exist an obligation to respect pre-existing international frontiers in
the event of a state succession?
Held:
Held:
Yes. There
exists an obligation to respect pre-existing international frontiers in the
event of a state succession, whether or not the rule is expressed in the
form of uti possidetis. Thus, the numerous declarations of the
intangibility of the frontiers at the time of the declaration of
independence of the African states are declaratory. The fact that the
principle did not exist when the states declared such independence in 1960 does
not foreclose its present application.
As regards the
applicable law, the Parties had stated in the preamble to the Special Agreement
that the settlement of the dispute should be "based in particular on the
respect for the principle of the intangibility of frontiers inherited from
colonization". Thus, the Chamber could not disregard the principle of uti
possidetis juris which it declared to be a firmly established principle of
international law where decolonization is concerned. Its obvious purpose was to
prevent the independence and stability of new States being endangered by the
challenging of frontiers subsequent to the withdrawal of the administering
power by upgrading former administrative frontiers to international frontiers.
This principle, therefore, might represent the wisest course to preserve
stability; it might, however, be wondered that the principle had been able to
withstand the new attitudes to international law that had developed, since at
first sight it conflicted outright with the right of peoples to
self-determination. But as African States had selected the principle of uti
possidetis among all other classic principles, the Chamber could not challenge
it merely because in 1960, when both Parties achieved independence, this
principle had not yet been proclaimed by the African Heads of State and
Government.
There exists an obligation to
respect pre-existing international frontiers in the event of a succession. The
principle of uti possidetis developed with respect to the Spanish American
colonies. In a similar dispute between El Salvador and Honduras, the Court
described the principle as follows: “The general principle offered the
advantage of establishing an absolute rule that there was not in law in the
old Spanish America any terra nullius; while there might exist many
regions that had never been occupied by the Spaniards, the regions were
reputed to belonging in law to whichever of the republics succeeded to the
Spanish province to which these territories attached by virtue of the old Royal
ordinances of the Spanish mother country.”
Summaries of the Decisions
Frontier
Dispute
(Burkina
Faso v. Mali)
By a Special Agreement of 16 September 1983 filed
with the Registry of the Court on 20 October 1983 the Republic of Burkina Faso
and the Republic of Mali had submitted a dispute to the Court concerning the
delimitation of their common frontier. According to Article II of this Special
Agreement the case was to be decided by a Chamber of the Court constituted
according to Article 26(2) of the Statute. After having duly consulted the
Parties as to the composition of the Chamber, the Court decided by an order of
3 April 1985 that the Chamber was to be composed of the Judges Lachs, Ruda and
Bedjaoui as well as Judge ad hoc Luchaire to sit for Burkina
Faso and Judge ad hoc Abi-Saab to sit for Mali.
Requests for the Indication of Provisonal Measures,
Order of 10 January 1986
Before the Chamber had the opportunity to decide
the question, the dispute flared up into war on Christmas Day 1985 apparently
because of a census carried out by Burkinabe authorities allegedly violating
Malian sovereignty. Both Parties then asked the Chamber to indicate provisional
measures in order to preserve their respective rights although, at the same
time, they were engaged, since 1977, in a political mediation endeavour within
a regional West African group under the Accord de non-agression et
d'assistance en matière de dèfense (A.N.A.D.). On 30 December 1985,
this group reached a common declaration made by Burkina Faso and Mali
containing the terms of a cease-fire but postponing the question of troop
withdrawal which, according to Burkina Faso, should be ordered by the Court.
With a view to the common declaration and the negotiation process under the
auspices of A.N.A.D., Mali objected to the request. In its Order of 10 January
1986, the Chamber stated that the negotiations between the Parties were not
incompatible with the functions of the Court but concluded, with regard to this
special item, that an order concerning the withdrawal of the troops required
geographical and strategic expertise which the Chamber lacked so that the
regulation of this point was left to the A.N.A.D. process. Among the
provisional measures indicated by the Chamber there may be mentioned the order
to re-establish, as regards the administration of the disputed areas, the
status quo ante the armed conflict.
Judgment
on the Merits of 22 December 1986
Since
both Parties had agreed that at the moment of independence there existed a
definite frontier and that no modification had taken place since 1959 to 1960,
it was the task of the Chamber to define this frontier line in the disputed
area.
As regards
the applicable law, the Parties had stated in the preamble to the Special
Agreement that the settlement of the dispute should be "based in
particular on the respect for the principle of the intangibility of frontiers
inherited from colonization". Thus, the Chamber could not disregard the
principle of uti possidetis juris which it declared to be a
firmly established principle of international law where decolonization is
concerned. Its obvious purpose was to prevent the independence and stability of
new States being endangered by the challenging of frontiers subsequent to the
withdrawal of the administering power by upgrading former administrative
frontiers to international frontiers. This principle, therefore, might
represent the wisest course to preserve stability; it might, however, be
wondered that the principle had been able to withstand the new attitudes to
international law that had developed, since at first sight it conflicted
outright with the right of peoples to self-determination. But as African States
had selected the principle of uti possidetis among all other
classic principles, the Chamber could not challenge it merely because in 1960,
when both Parties achieved independence, this principle had not yet been
proclaimed by the African Heads of State and Government.
The Chamber then considered whether equity could be
invoked and decided that only equity infra legem was to be
considered; this is shown by the application which the Chamber made of equity
in delimitating the frontier on the basis of the rules and principles
applicable in the case. These considerations of equity infra legem had
to come into play in order to guide the Chamber in the exercise of its
functions of interpreting and applying the law and the legal titles involved,
since it had to draw a delimitation line and not only to indicate the
principles on the basis of which the Parties would themselves proceed to
delimitation.
As a last consideration concerning the applicable
law, the Chamber had regard to the French colonial law, droit
d'outre-mer, since both Parties had been part of French West Africa. As the
frontier between the Parties became an international frontier upon
independence, French law, according to the Chamber, could no longer play a role
in itself but only as one factual element among others, or as evidence
indicative of what has been called the "colonial heritage", because
international law did not contain any renvoi to the law of the colonizing
States.
The
Chamber had two preliminary questions to examine, the first of which concerned
the argument of acquiescence, the second the classic problem of interference
into the rights of third States not party to the dispute.
As
regards acquiescence, Burkina Faso had argued that Mali had accepted as binding
the solution to the dispute outlined by the OAU Mediation Commission. If this
objection were well-founded there would have been no need for the Chamber to
establish the frontier inherited from the colonial period. The Chamber,
however, disposed of this objection because, on the one hand, both Parties had
agreed that the Commission had not been a judicial organ competent to issue
legally binding decisions and, on the other hand, the Commission had never
completed its work. As to the official declarations of Mali concerning the acceptance
of the binding character of the solution to be found by the Commission, the
Chamber stated that those declarations had not been made during negotiations
between the two Parties and thus could at most be regarded as unilateral acts
not intended to create legal obligations. As to the argument that Mali had
acquiesced to the application of the principles of delimitation approved by the
sub-commission and intended to serve as a basis for the final report of the
Mediation Commission, the Chamber found that Mali's approach to those principle
was of little significance: Since the Chamber had to decide on the basis of
international law the principles found by the sub-commission had to be applied
as such if they were elements of law; if not, they were of no importance since
the Special Agreement did not refer to them.
As
regards the problem of possible interference into rights of third States not
party to the dispute, Mali had argued that the Chamber was not competent to fix
the tripoint Mali-Niger-Burkina Faso, forming the end-point of the frontier
between the parties, without Niger's agreement. Burkina Faso in turn considered
that according to the Special Agreement the Chamber had to determine
definitively the entire common frontier and thus to determine the tripoint. The
Chamber disposed of this preliminary objection by finding that its jurisdiction
was not restricted only because of the fact that the disputed area was adjacent
to a third State, Niger, not party to the proceedings, whose rights, incidentally,
were protected under Article 59 of the Statute.
As to the
second aspect of the question whether the need of safeguarding the interests of
a third State concerned would require the Chamber to refrain from determining
the whole course of the frontier line as requested in the Special Agreement,
the Chamber found that this would presuppose that those legal interests of the
third State would form the very subject-matter of the decision which, however,
was not the case: In the present case, the Chamber had not so much to define a
tripoint, as to indicate the ultimate point of the frontier which ceases to
divide the territories of Burkina Faso and Mali, which implied logically that
the territory of a third State (Niger) lies beyond the end-point of that frontier.
The Chamber then proceeded to examine the abundant
evidence produced by the parties, in particular legislative and regulative
texts and administrative documents, the legal force of which was in dispute. As
to the maps submitted, the Chamber departed from the principle that they merely
constitute information, and never territorial titles in themselves. They were
given the effect of "corroborative evidence endorsing a conclusion at
which the Court has arrived by other means unconnected with the maps".
However, two of the maps produced appeared to be of special significance, one
of which, issued between 1958 and 1960 by the French Institut
géographique national (IGN), a neutral body in relation to the
parties, must be viewed as compelling where other evidence is lacking. Besides
this material, also the colonial "effectivités", that is the
conduct of the colonial administrative authorities, had to be taken into
account as proof of the effective exercise of territorial jurisdiction in the
region, although the role of these "effectivités" was rather
complex and in need of careful evaluation.
Despite
the abundance of evidence submitted there were some shortcomings and
inconsistencies which rendered the task of determining the frontier a rather
complex one, because the Chamber had to find out "where the frontier lay
in 1932 in a region of Africa little known at the time by reference to
legislative and regulative texts, not all of which were even published and maps
which were sometimes of doubtful accuracy and reliability". Thus, finally,
the Chamber could not be certain that it was deciding upon the basis of full
knowledge of the facts.
After
having examined all evidence in detail and having determined what weight to
attach to each aspect, the Chamber determined the frontier in the disputed area
beginning with the endpoint of the frontier already established between the
parties. Although not even this point had been clearly indicated by the
parties, the Chamber could conclude that there was such a point accepted by both
parties. The Chamber then proceeded by drawing a series of straight lines in
eight different sectors of the disputed area. The actual delimitation line was
reproduced on a map annexed to the judgment.
Nomination
of Experts
The final
act of the Chamber in this dispute consisted in the order of 9 April 1987 in
which it nominated, according to Article IV of the Special Agreement, three
experts to assist the parties in the operation of the demarcation of the
frontier.
8. Banco Nacional de Cuba v. Sabbatino 376 U.S.
398 (1964)
Brief Fact Summary. The bills of lading for a shipment of sugar contracted between Farr, Whitlock & Co an American commodities broker was assigned by Banco Nacional de Cuba (P), but another Cuban bank instituted this action alleging conversion of the bills of lading and sought to recover the proceeds thereof from Farr and to enjoin Sabbatino (D), a court-appointed receiver from exercising control over such proceeds.
Synopsis of Rule of Law. The
judiciary, in line with the Act of State Doctrine will not examine the validity
of a taking of property within its own territory by a foreign sovereign
government recognized by this country in the absence of international
agreements to the contrary, even if the taking violates customary international
law.
Facts. A contract to
purchase Cuban sugar from a wholly owned subsidaiary of Compania Azucarera
Vertientes-Camaquey de Cuba (CAV) a corporation organized under Cuban law was
made by Farr, Whitlock & Co. (Farr) an American commodities broker. The CAV
stock was principally owned by United States residents. The agreement was for
Farr to pay for the sugar in New York upon the presentation of the shipping
documents. After this deal, a law was enacted in Cuba which empowered the
government to nationalize forcefully, expropriation of property or enterprise
in which American nationals had an interest.
Hence, the sugar which Farr had contracted was expropriated from Compania Azucarera. Farr however entered into contracts which was similar to the one made with CAV with the Banco Para el Comercio de Cuba, which was an instrumentality of the government. This was done by Farr in order to obtain consent from the Cuban government before a ship carrying sugar could leave Cuba.A bill of lading which was also an instrumentality of the Cuban government was assigned by the bank to Banco Para el Comercio de Cuba, who presented the bills and a sight draft as required under the contract to Farr in New York in return for payment. After CAV notified Farr of its claim to the proceeds as rightful owner of the sugar, Farr refused the documents.
This action of Farr resulted in a court order which appointed Sabbatino (D) as receiver of CAV‘s New York assets and enjoined it from removing the payments from the state. Based on the allegation of the conversion of the bills of lading seeking to recover the proceeds thereof from Farr and to enjoin Sabbatino (D), the receiver from exercising dominion over such proceeds, the Banco Nacional (P) instituted this action. A summary judgment was granted against Banco Nacional (P) by the district court on the grounds that the Act of State Doctrine does not apply when the foreign act in question is in violation of international law. The court of appeals also upheld this judgment.
Hence, the sugar which Farr had contracted was expropriated from Compania Azucarera. Farr however entered into contracts which was similar to the one made with CAV with the Banco Para el Comercio de Cuba, which was an instrumentality of the government. This was done by Farr in order to obtain consent from the Cuban government before a ship carrying sugar could leave Cuba.A bill of lading which was also an instrumentality of the Cuban government was assigned by the bank to Banco Para el Comercio de Cuba, who presented the bills and a sight draft as required under the contract to Farr in New York in return for payment. After CAV notified Farr of its claim to the proceeds as rightful owner of the sugar, Farr refused the documents.
This action of Farr resulted in a court order which appointed Sabbatino (D) as receiver of CAV‘s New York assets and enjoined it from removing the payments from the state. Based on the allegation of the conversion of the bills of lading seeking to recover the proceeds thereof from Farr and to enjoin Sabbatino (D), the receiver from exercising dominion over such proceeds, the Banco Nacional (P) instituted this action. A summary judgment was granted against Banco Nacional (P) by the district court on the grounds that the Act of State Doctrine does not apply when the foreign act in question is in violation of international law. The court of appeals also upheld this judgment.
Issue. Does the judiciary
have the authority to examine the validity of a taking of property within its
own territory by a foreign sovereign even if the taking violated international
law?
Held. (Harlan, J). No. The
judiciary, in line with the Act of State Doctrine will not examine the validity
of a taking of property within its own territory by a foreign sovereign
government recognized by this country in the absence of international
agreements to the contrary, even if the taking violates customary international
law. Even in a situation whereby international law has been violated, the clear
implication of past cases is that the Act of State Doctrine is applicable
because the Act of State doctrine does not deprive the courts of jurisdiction
once acquire over a case. The damages of adjudicating the propriety of such
expropriation acts, regardless of whether the State Department has it did in
this case, asserted that the act violated international law are too
far-reaching for the judicial branch to attempt. Hence the judgment of the
court of appeals is reverse and the case remanded back to the district court.
Dissent. (White, J). American
courts are not required by the Act of State Doctrine to decide cases in
disregard of international law and of the rights of litigants to a full determination
on the merits.
Discussion. Even in the diversity
of citizenship cases, the Court concluded that the Act of State Doctrine must
be determined according to federal rather than state law. The court also made
it clear that it is constrained to make it clear that an issue concerned with a
basic choice regarding the competence and function of the judiciary and
national executive in ordering our relationships with other members of the
international community must be treated exclusively as an aspect of federal
law.
9. GUARANTY TRUST CO. OF NEW YORK V. U.S
-
RECOGNITION OF STATEDHOOD
-
PREVILEGE TO SUE IN CURTS OF NON-RECOGNIZING STATE
FACTS:
On July 15, 1916 Imperial Russian Government opened a bank
account with the petitioner.
On 1917, the Imperial Government was overthrown and was
succeeded by the Provisional Government and subsequently recognized by the U.S
Government.
On July 5, 1917, Mr. Bakmeteff was officially recognized by
the President as the Ambassador of Russia, which subsequently an account of $5M
was deposited in the account for Ught, a Financial attache of the Russian
Embassy.
On November 7, 1917, the Provisional Government was
overthrown and was succeeded by the Government of USSR.
On November 16, 1933, the U.S recognized the USSR Government,
and on that date took from it an assignment of all the amounts admitted to be
due that may be found to be due it, as the successor of prior Governments of
Russia. After making demands upon the petitioner for the payment of the balance
of the account, the U.S on Spet. 21, 1934 brought a suit in the District Court
of New York to recover the deposit.
The petitioner then moved under the Conformity Act, to
dismiss the complaint on the ground that the recovery was barred by the New
York’s 6-year statute of limitations. In support, the petitioner submitted
proofs that on Feb. 25 1918, it had applied the balance of the account as a
credit against indebtedness alleged to be due to it by the Russian Government
by some reasons; that also on that date, it had repudiated all liability on the
deposit account and that it had then given notice of such repudiation to the
Financial Attache.
Respondent argues that the Soviet government, in a suit
brought in the federal courts, is not subject to a local statute of limitations,
and just like domestic domestic sovereign a foreign sovereignty is also exempt
from such statute. And because in any case, no suit to recover the deposit
could have maintained in New York by the Soviet Government prior to its
recognition by the U.S, and since according to the New York law the statute
does not run during the period when suit cannot be brought, and the present
suit is not barred.
Among others, the government assails the finding fact that
the petitioner repudiated the liability upon the deposit account, and contends
that the notice of the repudiation given by the petitioner to representatives
of the Provisional Government was ineffective to set the statute running
against the Soviet Government and in favor the to the petitioner.
ISSUE:
WON the the statute of limitation starts to run during the
Provisional Government of Russia.
HELD:
Relying on the New York rules that the statute of
limitations does not run against a suit to recover a bank account until
liability upon it is repudiated, and that the statute of limitations does not
run against a plaintiff who has no forum in which to assert his rights, argues
that until recognition of the Soviet Government there was no person to whom
notice of petitioner’s repudiation could be given and no court in which suit
could be maintained to recover the deposit.
It is not denied that, in conformity to generally accepted
principles, the Soviet Government could not maintain a suit in our courts
before its recognition by the political department of the government. For this
reason access to the federal and state courts was denied to the Soviet
government before recognition.---- But the argument ignores the principle
controlling here and recognized by the courts of New York that the rights of a
sovereign state are vested in the state rather than in any particular
government which may purport to represent it.
We do not stop to inquire what the actual authority of
those diplomatic representatives may have been. When the question is of the
running of the statute of limitations, it is enough that our courts have been
open to suit on behalf of the Russian State in whom the right to sue upon the
petitioner’s present claim was vested, and that the political department of the
government has accorded recognition to a government of the state, received its
diplomatic representatives, and extended to them the privilege of maintaining
suit in our courts in behalf of their state. The right and opportunity to sue
upon the claim against petitioner was not suspended; and notice of repudiation
of the liability given to the duly recognized diplomatic representatives must
so far as our own courts are concerned, be taken as notice to the state whom
they represented.
The government’s argument tantamount to saying that the
judgment in suits maintained here by the diplomatic representatives of the
Provisional Government valid when rendered, and became invalid upon the
recognition of the Soviet Government. The one operates only to validate to a
limited extent acts of a de facto government which, by virtue of the
recognition, has become a government de jure. But it does not follow that
recognition renders of no effect transactions here with a prior recognized
government in conformity to the declared policy of our own government. The very
purpose of the recognition by our government is that our nationals may be
conclusively advised with what government they may safely carry on business
transactions and who its representatives are. If those transactions, valid when
entered into, were to be disregarded after the later recognition of a successor
government, recognition would be but an idle ceremony, yielding none of the
advantages of established diplomatic relations in enabling business
transactions to proceed, and affording no protection to our own nationals in
carrying them on.
So far as we are advised not court has sanctioned such a
doctrine. The notion that the judgment in suits maintained by the
representative of the Provisional Government would not be conclusive upon all
successor governments, was considered and rejected.
We conclude that the recognition of the Soviet Government
left unaffected those legal consequences of the previous recognition of the
Provisional government and its representatives, which attached to an action
taken here prior to the later recognition.
10. Accordance with international law of the
unilateral declaration of independence in respect of Kosovo (2010)
Topic: Privilege to sue
in court o non-recognizing states
Facts:
On 8 October 2008 (resolution 63/3), the General
Assembly decided to ask the Court to render an advisory opinion on the
following question : “Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with
international law ?”
The Court briefly describes
the relevant characteristics of the framework put in place by the Security
Council to ensure the interim administration of Kosovo, namely, Security
Council resolution 1244 (1999) and the regulations promulgated thereunder by
the United Nations Mission in Kosovo (UNMIK). It then gives a succinct account
of the developments relating to the so-called “final status process” in the
years preceding the adoption of the declaration of independence, before turning
to the events of 17 February 2008.
Held:
The Court observes that the question posed by the General Assembly
is clearly formulated. The question is narrow and specific; it asks for the
Court’s opinion on whether or not the declaration of independence is in
accordance with international law. It notes that the question does not ask
about the legal consequences of that declaration. In particular, it does not
ask whether or not Kosovo has achieved statehood. Nor does it ask about the
validity or legal effects of the recognition of Kosovo by those States which
have recognized it as an independent State. The Court accordingly sees no
reason to reformulate the scope of the question.
The Court observes that the question posed by the General Assembly
is clearly formulated. The question is narrow and specific; it asks for the
Court’s opinion on whether or not the declaration of independence is in
accordance with international law. It notes that the question does not ask
about the legal consequences of that declaration. In particular, it does not
ask whether or not Kosovo has achieved statehood. Nor does it ask about the
validity or legal effects of the recognition of Kosovo by those States which
have recognized it as an independent State. The Court accordingly sees no
reason to reformulate the scope of the question.
The Court notes that, in the present case, the
question put by the General Assembly asks whether the
declaration of independence to which it refers is “in accordance with
international law”. A question which expressly asks the Court
whether or not a particular action is compatible with
international law certainly appears to be a legal question. It also observes
that, in the present case, it has not been asked to give an opinion on
whether the declaration of independence is in accordance
with any rule of domestic law but only whether it is in accordance with
international law. The Court can respond to that question by
reference to international law without the need to inquire into any system of domestic law.
The Court recalls that it has repeatedly stated
that the fact that a question has political aspects does
not suffice to deprive it of its character as a legal question (Application for
Review of Judgment
No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14). The Court
adds that, whatever its political aspects, it cannot refuse to respond to the legal elements of a
question which invites it to discharge an essentially judicial task, namely, an assessment of an act by
reference to international law. The Court has also made clear that, in determining the
jurisdictional issue of whether it is confronted with a legal question, it is not concerned with the political
nature of the motives which may have inspired the request
or the political implications which its opinion might have (Conditions of
Admission of a State in Membership of the United Nations
(Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61, and Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), p. 234, para. 13).
In light of the foregoing, “[t]he Court therefore
considers that it has jurisdiction to give an advisory
opinion in response to the request made by the General Assembly.”
11. Western Sahara (ICJ Advisory Opinion,
1975)
Right to self Determination
Facts: On september 1974 the Minister for Foreign Affairs
of Morocco addressed a communication to the Minister for foreign affairs of
Span recalling the terms of a statement by which his majesty king had proposed the
joint submission to the ICJ of an issue claiming that the Sahara was res
nullius. That it was a territory or properly left uninherited, that the spanish
claim that no power nor administratio had been established over the sahara;
Morocco claims the contrary. After the spain had agreed to transmit information
on the territories in question, Morocco claimed in its reservation that its
cities and regions formed an intergal part of Morocco. Spain in its answer
state that the historic presence of spanish citizens on the west coast of
africa, not subject to the sovereigny of any other country and devoting
themselves largely to fishing goes back a very long way and has been confimed
by international law. The controversy reappeared
when Morocco directly presented to Spain its legal claim and continued to
subsist. After it became a Member in 1960, Mauritania put forward in the UN
claiming that western sahara was a part of its national territory. Mauritania
admits that the principle of self determination cannot be dissociated from tha
tof respect for national unity and territorial integrity; On December 17, 1974,
the UN General Assembly by Resolution 3292 requested the ICJ to give an
advisory opinion on the following questions:
Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time of
colonization by Spain a territory belonging to no one? (terra nullius). This
request took place in the context of decolonization of Western Sahara, formerly
a protectorate of Spain. Morocco and Mauritania are rival claimants, both
arguing that portions of the disputed area formed part of their pre-colonial
territories and seeking to have the former colony re-integrated to their
respective national territories.
Issue: WON there were the legal ties between this territory
and the Kingdom of Morocco and the Mauritian entity
Held: The charter of the UN indicates as one of the purpose
of the UN: to develop friendly relations among nations based on respect for the
principle of equal rights and self determination of peoples. The subsequent
development of international law in regard to non self governing territories,
as enshriend in the Charter of the UN made the principle of self determination
applicable to all of them. The principle of self determination as a right of
peoples, and its application for the purpose of bringing all colonial
situations to a speedy end, were enunciated in the declaration on the granting
of independence to colonial countries and peoples. In this resolution the
general assembly proclaims the necessity of bringing to a speedy and
unconditional end colonialism in all its forms and manifestations. To this end
the resolution provides that all peoples have the right to self determination;
by virtue of that right they freely determine their political status and freely
pursue their economic social and cultural development. Immediate steps shall be
taken, in trust and non self governing territories or all other territories
which have not yet attained indepence to transfer all powers to the people of
those territories, without any conditions or reservations in accordance with
their freely expressed will and desire, without any distinction as to race,
creed or colour in order to enable them to enhoy complete independence and
freedom. Thus, this provision confirm and emphasize that the application of the
right of self determination requires a free and genuine expression of the will
of the peoples concerned. A further important stage in this development was the
declaration on the granting of indepence to colonial countries and peoples
which embraces all peoples and territories which have not yet attained
independence. Free association should be the result of a free and voluntary
choice by the peoples of the territory concerned expressed through informed and
democratic processes. Integration should have come about in the following
circumstances; the integration should be the result of the freely expressed
wishes of the territorys peopels acting with full knowledge of the change in
their statuts, their wishes having been expressed through informed and
democratic processess, impartially conducted and baed on universal adult
suffrage. The UN could when it deems it necessary, supervise these processes.
“The establishment of a sovereign and independent state, the free association
or integration with an independent state or the emergence into any other
political status freely determined by a people constitute modes of implementing
the right of self determination by that people. Every state has the duty to
promote, through joint and seaprate action, realization of the principle of
equal rights and self determination of peoples in accordance with the
provisions of the charter, and to render assistance to the UN in carrying out
the responsibilities entrusted to it by the Charter regarding the
implementation of the principle, in order: b.) to bring a speedy end to
colonialism having due regard to the freely expressed will of the peoples
concerned. The validity of the principle
of self determination defined as the need to pay regard to the freely expressed
will of peopels, is not affected by the fact that in certain cases the General
assembly has dispensed with the requirement of consulting the inhabitants of a
given territory. Those instances where based either on the consideration that a
certain population did not constitute a people entitled to self determination
or on the conviction that a consultation was totally unnecessary, in view of
special circumstances. Attachment to the principle of self determination and
its concern to see that principle applied with a framework that will guarantee
the inhabitants of the Sahara under spansih domination free and authentic
expression of their wishes, in accordance with the relevant UN resolutions on
the subject. In short, the decolonization to process to be accelerated which is
envisaged by the General Assembly in this provision is one which will respect
the right of the population of western sahara to determine their future
political status by their own freely expressed will .This right is not affected
by the present request for an advisory opinion,nor by resolution. On the
contrary, it is expressly reaffirmed in that resolution. The right of that
population to self determination constitutes therefore a basic assumption of
the questions put to the court. Western
Sahara at the time of colonization by Spain was not terra nullius. [There are] legal ties of allegiance between the
Sultan of Morocco and some of the tribes living in the territory of Western
Sahara. [There are also] legal ties between the Mauritanian entity … and the
territory of Western Sahara. [However, such] do not establish any tie of
territorial sovereignty between the territory of Western Sahara and the Kingdom
of Morocco or the Mauritanian entity.[i]
Thus the Court, being mindful of the purpose for which the
Advisory Opinion was sought, held in its penultimate paragraph: “The materials
and information presented to the Court show the existence, at the time of
Spanish colonization, of legal ties of allegiance between the Sultan of Morocco
and some of the tribes living in the territory of Western Sahara. They equally
show the existence of rights, including some rights relating to the land, which
constituted legal ties between the Mauritanian entity, as understood by the
Court, and the territory of Western Sahara. On the other hand, the Court's
conclusion is that the materials and information presented to it do not
establish any tie of territorial sovereignty between the territory of Western
Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has
not found legal ties of such a nature as might affect the application of
resolution 1514 (XV) in the decolonization of Western Sahara and, in
particular, of the principle of self-determination through the free and genuine
expression of the will of the peoples of the Territory.
12. Accordance with international law of the unilateral
declaration of independence in respect of Kosovo (Request
for Advisory Opinion)
I.C.J. Reports 2010,
FACTS:
On
31 March 1998, Kosovo authorized the
creation of an international military presence (subsequently known as “KFOR”)
and an international civil presence (the United Nations Interim Administration
Mission in Kosovo, “UNMIK”) and laid down a framework for the
administration of Kosovo.
On 8 October 2008
(resolution 63/3), the General Assembly decided to ask the Court to render an
advisory opinion on the following question : “Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with international law
?”
Thirty-six Member
States of the United Nations filed written statements and the authors of the
unilateral declaration of independence filed a written contribution.
ISSUE: “Is the unilateral declaration
of independence by the Provisional Institutions of Self Government of Kosovo in
accordance with international law?”
HELD:
YES
As to
right to self-determination:
·
During the second half of the twentieth
century, the international law of self-determination developed in such a way as
to create a right to independence for the peoples of non-self-governing
territories and peoples subject to alien subjugation, domination and
exploitation.
A number of participants in the present
proceedings have claimed, although in almost every instance only as a secondary
argument, that the population of Kosovo has the right to create an independent
State either as a manifestation of a
right to self-determination or pursuant to what they described as a right of
“remedial secession” in the face of the situation in Kosovo.
The Court has already noted that one of the
major developments of international law during the second half of the twentieth
century has been the evolution of the right of self-determination.
Whether, outside the context of non-self-governing
territories and peoples subject to alien subjugation, domination and
exploitation, the international law of
self-determination confers upon part of the population of an existing State a
right to separate from that State is, however, a subject on which radically
different views were expressed by those taking part in the proceedings and
expressing a position on the question.
However, the Court considers that it is not
necessary to resolve these questions in the present case. The General Assembly
has requested the Court’s opinion only on whether or not the declaration of
independence is in accordance with international law. Debates regarding the
extent of the right of self-determination and the existence of any right of
“remedial secession”, however, concern the right to separate from a State.
As the Court has already noted (see paragraphs
49 to 56 above), and as almost all participants agreed, that issue is beyond
the scope of the question posed by the General Assembly.
To answer that question, the Court need only
determine whether the declaration of independence violated either general
international law or the lex specialis created by Security Council
resolution 1244 (1999).
NOTES:
·
Court considers that general international law
contains no applicable prohibition of declarations of independence.
·
Accordingly, it concludes that the declaration
of independence of 17 February 2008 did not violate general international law.
Having arrived at that conclusion, the Court now turns to the legal relevance
of Security Council resolution 1244, adopted on 10 June 1999.
13.
Mingtai Fire & Marine Insurance Co., Ltd. V. United Parcel Service, May 25,
1999
Facts:
Mingtai Fire & Marine Insurance Co.,
Ltd. (Mingtai), insured a package, shipped by Gemtronics Corp. from Taipei,
Taiwan to San Jose, California, which was lost en route by United Parcel
Service (UPS), the air carrier. Mingtai alleged that the lost package contained
computer chips worth $83,454.80 and brought suit against United Parcel Service
and United Parcel International, Inc. in the Northern District of California
alleging, inter alia, loss of cargo under the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, 1reprinted in
note following 49 U.S.C.A. § 40105 (the “Warsaw Convention” or the
“Convention”).
Petitioner’s Contention:
That the United States' recognition of
China and derecognition of Taiwan require this court to honor China's
declaration that its adherence to the Convention binds Taiwan.
Respondent’s Contention:
The Convention does not apply, and that
the air carrier liability was therefore limited to the $100 released value
provided by the airwaybill.
District Court’s judgment:
Taiwan, which is not a signatory to the
Convention, was not bound by the People's Republic of China's (“China”)
adherence to the Convention. The district court therefore upheld the limitation
on liability provided by the airwaybill, and entered summary judgment in
Mingtai'sfavor in the amount of $100.
Issues: WON the executive’s position in foreign
relations binds the court.
Ruling:
Yes.
The Supreme Court has repeatedly held that the Constitution commits to the
Executive Branch alone the authority to recognize, and to withdraw recognition
from, foreign regimes. Similarly, “governmental action must be regarded as of
controlling importance” in determining the status of treaties.
The
Convention only applies to shipments between territories of signatories,
otherwise referred to as “High Contracting Parties.” The parties do not dispute
that Taiwan is not a High Contracting Party, nor that China is a High
Contracting Party.
The
statements and actions of the “political departments” in order to answer
whether, following recognition of China and derecognition of Taiwan, China's
adherence to the Warsaw Convention binds Taiwan.
As
this court has noted, “when the United States established relations with China
in 1979, it severed diplomatic relations with Taiwan.”However, the President's
Memorandum effecting this change acknowledged that, despite the termination of
diplomatic relations with Taiwan, the United States still wished to maintain
“commercial, cultural and other relations with the people of Taiwan without
official government representation and without diplomatic relations.”
President's Memorandum for All Departments and Agencies: Relations with the
People on Taiwan, reprinted in 19793. Thus, the President's Memorandum directed
that “existing international agreements and arrangements in force between the
United States and Taiwan shall continue in force․”Congress,
in turn, formalized this continuing relationship by enacting the Taiwan
Relations Act4, “to provide a structure for ‘the continuation of commercial,
cultural, and other relations between the people of the United States and the
people on Taiwan.
These
provisions, and the Act generally, strongly imply that, despite the absence of
official relations, the United States continues to deal separately with Taiwan.
With the
passage of the Act, the United States not only continued in force its treaties
with Taiwan that antedated derecognition; it also gave no indication that
existing or future agreements with the newly recognized China would be binding
upon Taiwan.
While Mingtai argues that the
district court violated separation of powers by rejecting its position, it
instead would be an intrusion into the political sphere for this court to rule
in Mingtai's favor and effectively to hold, contrary to every indication of
executive and legislative intent, that Taiwan has tacitly been recognized by
the United States as a party to any treaty signed by China. We will not do
so. We caution, however, that we do not independently determine the status of
Taiwan; instead, we merely recognize and defer to the political departments'
position that Taiwan is not bound by China's adherence to the Warsaw
Convention.
For the
foregoing reasons, the Warsaw Convention does not apply to the lost air
cargo in this case and the district court properly upheld the limitation of
liability in the air waybill.
No comments:
Post a Comment