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[ 1953 ] Part 1 Chapter 5 Legal Questions

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[ 1953 ] Part 1 Chapter 5 Legal Questions V. Legal Questions A. THE AMBATIELOS CASE (GREECE VS. THE UNITED KINGDOM) On 19 May 1953, the International Court of tribunal for arbitration. The Court said that both Justice delivered its Judgment in the Ambatielos the United Kingdom and Greece had rested their case (Merits: Obligation to Arbitrate), between cases on the Declaration of 1926 which reads as Greece and the United Kingdom. follows: These proceedings had been instituted by an "It is well understood that the Treaty of Commerce and Navigation between Great Britain and Greece of Application by the Hellenic Government, which, to-day's date does not prejudice claims on behalf of having taken up the case of one of its nationals, private persons based on the provisions of the Anglo- the shipowner Nicolas Ambatielos, had prayed Greek Commercial Treaty of 1886, and that any dif- the Court to declare that the claim which the ferences which may arise between our two Governments latter had made against the Government of the as to the validity of such claims shall, at the request of either Government, be referred to arbitration in United Kingdom should be submitted to arbitra- accordance with the provisions of the Protocol of tion in accordance with Anglo-Greek Agreements November 10th, 1886, annexed to the said Treaty." concluded in 1886 (Treaty and Protocol) and in The Protocol of 1886 referred to in the Dec- 1926 (Declaration). Following a preliminary ob- laration of 1926 contains, inter alia, the following jection lodged by the United Kingdom, the Court provision: found that it had jurisdiction to adjudicate on the question by a Judgment delivered on 1 July "Any controversies which may arise respecting the 1 interpretation or the execution of the present Treaty, 1952. or the consequences of any violation thereof, shall be The Court, which was presided over by the submitted, when the means of settling them directly by amicable agreement are exhausted, to the decisions Vice-President, held public sittings from 23 to 28 of Commissions of Arbitration, and the result of such and on 30 March 1953. It included on the Bench arbitration shall be binding upon both Governments." Professor Jean Spiropoulos, appointed by the The Court stated that the Declaration of 1926 Hellenic Government to sit as judge ad hoc. The was agreed upon for the purpose of safeguarding Court heard, on behalf of the Hellenic Govern- the interests of the parties with respect to claims ment, Henri Rolin and Sir Frank Soskice, Counsel, on behalf of private persons based on the Treaty and on behalf of the United Kingdom Govern- of 1886, for which, on the termination of that ment, G. G. Fitzmaurice, Assistant Agent and Treaty, there would have been no remedy in the Counsel, J. E. S. Fawcett, Counsel, and W. V. J. event of the failure of the parties to reach amic- Evans, Agent. able settlements. The Agreement of 1926, the Court further stated, related to a limited category 1. Judgment of the Court of differences which the Agreement of 1886 pro- vided should be settled by arbitration, namely In its Judgment,2 the Court defined the ques- differences as to the validity of claims on behalf tion before it as follows: was the United Kingdom of private persons based on the Treaty of 1886. under an obligation to accept arbitration of the But in both cases the parties had been prompted difference between that Government and the by the same motives and had adopted the same Hellenic Government concerning the validity of method of arbitration. the Ambatielos claim, in so far as this claim was Referring to its Judgment of 1 July 1952, based on the Treaty of 1886? The distinctive the Court stated that in that Judgment the merits character of the case, the Court stated, was that, of the Ambatielos claim were found to be out- quite unlike the Mavrommatis Palestine Conces- sions, decided by the Permanent Court of Inter- 1 3 I.C.J. Reports 1952, p. 28; see also Y.U.N., 1952. national Justice in 1924, the Court was called pp. 769-75. upon to decide, not its own jurisdiction, but 2 l.C.J. Reports 1953, p. 10. whether the dispute should be referred to another 3 P.C.I.J. Series A, No. 2, August 30th 1924. Legal Questions 661 side the Court's jurisdiction, which consisted only based on the Treaty of 1886; it must have been of deciding whether the United Kingdom was their intention that the genuineness of the treaty under an obligation to accept arbitration. The basis of any claim, if contested, should be authori- limited jurisdiction of the Court was to be clearly tatively decided by the Commission of Arbitra- distinguished from the jurisdiction of the Com- tion, together with any other questions relating mission of Arbitration, the Court said. The Court, to the merits. therefore, must refrain from pronouncing final The Court considered that, for the purpose of judgment on any question of law or fact falling determining the obligation of the United King- within the merits; its task would have been com- dom to accept arbitration, the expression "claims pleted when it had decided whether the difference based on the Treaty of 1886" could not be under- with regard to the Ambatielos claim was a dif- stood as meaning claims actually supportable ference as to the validity of a claim on behalf of under the Treaty. Of course, the Court declared, a private person based on the provisions of the it was not enough that a claim should have a Treaty of 1886 and whether, in consequence, there remote connexion with the Treaty for it to be was an obligation binding on the United King- based on it; on the other hand it was not neces- dom to accept arbitration. sary that an unassailable legal basis should be The Court said that the words "based on the shown for an alleged treaty violation. In its con- Treaty of 1886" indicated the character which text, the expression meant claims depending for the Ambatielos claim had to possess in order that support on the provisions of the Treaty of 1886, it might be the subject of arbitration in accord- so that the claims would eventually stand or fall ance with the Declaration of 1926. They did not according as the provisions of the Treaty were mean, the Court held, that the Ambatielos claim construed in one way or another. Consequently, had to be found to be validly based on the Treaty the Court stated, in respect of the Ambatielos of 1886. If such a meaning had been intended claim, it was not necessary for the Court to find by the Court, it would not have decided that it that the Hellenic Government's interpretation of was without jurisdiction to pass on the merits of the Treaty was the only correct interpretation; it the claim. was enough to determine whether the arguments advanced by the Hellenic Government in support The Hellenic Government had contended that of its interpretation were of a sufficiently plausible the Ambatielos claim did not "prima facie appear character to warrant a conclusion that the claim to be unconnected with the provisions of the was based on the Treaty. In other words, if an Treaty of 1886". In the view of the United King- interpretation appeared to be an arguable one, dom, it was necessary for the Court to determine, whether or not it ultimately prevailed, then there as a substantive issue, whether the claim was were reasonable grounds for concluding that the actually or genuinely based on the Treaty. The claim was based on the Treaty. The validity of Court was unable to accept either of those con- the respective arguments would, the Court held, tentions. The first, it declared, would constitute be determined by the Commission of Arbitration an insufficient reason for the obligation to accept in passing on the merits of the difference. arbitration; the second would lead to the substi- tution of the Court for the Commission of Arbi- The Court then proceeded to deal with two of tration in passing on a point which constituted the contentions of the Greek Government which one of the principal elements of the claim. The were contested by the United Kingdom. One was Court held that the Commission of Arbitration based on the most-favoured-nation clause in article alone had jurisdiction to adjudicate on the merits; X of the Treaty of 1886 which would permit and it could not be assumed that the Agreement Greece to invoke the benefits of treaties con- of 1926 contemplated that the verification of the cluded by the United Kingdom with third States allegations of fact should be the duty of the Com- and thus obtain redress for a denial of justice to mission, while the determination of the question Mr. Ambatielos—if the facts alleged were true. whether the facts alleged constituted a violation The other contention rested on an interpreta- of the Treaty of 1886 should form the task of tion of the provision in article XV of the same another tribunal. Treaty which states, inter alia, that "the subjects At the time of the signature of the Declaration of each of the two Contracting Patties in the of 1926, the Judgment of the Court stated, the dominions of the other shall have free access to British and Greek Governments had never in- the Courts of Justice..." The Greek Govern- tended that one of them alone or some other organ ment contended that Mr. Ambatielos did not should decide whether a claim was genuinely enjoy "free access" to the Courts because of the 662 Yearbook of the United Nations "withholding" by the executive branch of the the right conferred on them by Article 57 of the United Kingdom Government of evidence con- Statute, appended to the Judgment a statement of sidered to be vital to his case.
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