|
[p4] The
Permanent Court of International Justice,
composed as above,
after deliberation,
Having regard to Articles 43 and 48 of the Statute of the Court,
Having regard to Articles 37, 42, 45 and 47 of the Rules of Court,
Makes the following Order:
[1] Having regard to the Application filed in the Registry of the Court on
January 26th, 1938, whereby the Belgian Government brought before the Court
against the Bulgarian Government a suit with regard to the Electricity
Company of Sofia and Bulgaria;
[2] Having regard to the appointment by the two Governments-concerned of
their respective Agents, namely: for the Belgian Government, M. J. G. de
Ruelle, and, for the Bulgarian Government, M. Ivan Altinoff;
[3] Having regard to the nomination by the Bulgarian Government � which,
having no judge of its nationality in the Court, [p5] availed itself of its
right under Article 31 of the Statute; � of M. Theohar Papazoff to sit in
the case;
[4] Having regard to the Order made by the President of the Court on March
28th, 1938, fixing June 1st, 1938, as the date for the filing of the
Memorial of the Belgian Government and September 12th, 1938, as the date for
the filing of the Counter-Memorial of the Bulgarian Government, the fixing
of time-limits for the filing of a Reply by the Belgian Government and of a
Rejoinder by the Bulgarian Government being left for a subsequent Order;
[5] Having regard to the Memorial duly filed by the Belgian Government on
June 1st, 1938 (subsequently reprinted on August 27th to meet a request of
the Bulgarian Government);
[6] Having regard to the request for the indication of interim measures of
protection filed with the Registry of the Court on July 4th, 1938, by the
Belgian Government, and to the telegrams sent by the Agent for the Bulgarian
Government to the President of the Court on July 27th, 1938, and the letter
of the Agent for the Belgian Government to the Registrar of the Court, dated
August 26th, 1938;
[7] Having regard to the Order made by the President of the Court on August
27th, 1938, whereby, in view of the above-mentioned communications, the
withdrawal by the Belgian Government of the said request for the indication
of interim measures of protection was placed on record;
[8] Having regard to the Order made by the President of the Court on the
same date, August 27th, 1938, extending until October 31st, 1938, the
time-limit originally fixed to expire on September 12th for the filing of
the Bulgarian Counter-Memorial;
[9] Having regard to the Order made by the President of the Court on October
22nd, 1938, granting the Bulgarian Government a further extension of time
expiring on November 30th, 1938, for the filing of its Counter-Memorial;
[10] Having regard to the preliminary objection raised on November 25th,
1938, by the Bulgarian Government contending that the Court had no
jurisdiction;
[11] Having regard to the judgment upon this objection rendered by the Court
on April 4th, 1939, whereby the objection was partially overruled;
[12] Having regard to the Order made the same day, April 4th, 1939, whereby
the Court extended until July 4th, 1939, the time-limit for the filing of
the Bulgarian Counter-Memorial and fixed August 19th and October 4th, 1939,
respectively as the dates of expiration of the time-limits for the filing of
a Reply and Rejoinder;
[13] Having regard to the Bulgarian Counter-Memorial which was duly filed on
July 4th, 1939, and to the Belgian Reply duly filed on August 19th, 1939;
[p6]
[14] Having regard to the following telegram sent to the Court by the
Bulgarian Agent on October 2nd, 1939:
"Sofia � October 2nd, 1939 � Have honour inform Court that recent events
have prevented my collaboration with advocate for Bulgarian defence French
Professor Gilbert Gidel and that owing to circumstances of force majeure
resulting from the war am unable present Bulgarian Rejoinder � Altinoff
Minister Plenipotentiary Agent Bulgarian Government";
[15] Having regard to the following telegram sent to the Court on October
3rd, 1939, by the Belgian Agent in response to a communication transmitting
the telegram of October 2nd, 1939, of the Bulgarian Agent:
"Brussels � October 3rd, 1939 � In case Electricity Company Sofia Belgian
Government makes no objection to reasonable extension time-limit having
regard force majeure stop Nevertheless Sofia Municipality having on August
1st brought an action as demandant against the Belgian Company before the
Bulgarian courts on the basis of their earlier declaratory decisions Belgian
Government will submit to Court new request for interim measures protection
in case Sofia action decided before Hague case � de Ruelle";
[16] Having regard to the Order made by the President of the Court on
October 4th, 1939, extending until January 4th, 1940, the time-limit granted
to the Bulgarian Government for the filing of its Rejoinder;
[17] Having regard to the request of the Belgian Government of October 17th,
1939, for the indication of interim measures of protection;
[18] Having regard to the notification of this request on October 18th,
1939, to the Agent for the Bulgarian Government, and to the fixing of
November 24th, 1939, as the date of expiration of the time allowed for the
presentation of any observations in writing which he might make upon the
request of the Belgian Government for the indication of interim measures of
protection;
[19] Having regard to the following telegram of the Bulgarian Agent, dated
November 18th, 1939:
"Sofia � November 18th, 1939 � In reply second Belgian incidental request am
instructed by Bulgarian Government inform Court that in consequence of war
impossible for Bulgarian Agent collaborate with foreign counsel in
preparation Bulgarian defence and that owing to necessity of crossing
belligerent countries to reach Hague involving serious risks personal safety
Bulgarian Government forbids departure national judge Papazoff and Bulgarian
Agent stop Having regard this situation of force majeure Bulgarian
Government does not consider itself bound to submit Court observations asked
for but declares many reasons exist for rejection Belgian request interim
measures � Altinoff Minister Plenipotentiary Agent Bulgarian Government";
[p7]
[20] Having regard to the Order made by the Court on December 5th, 1939,
adjudicating upon the request of the Belgian Government for the indication
of interim measures of protection;
Having regard to the following telegram sent to the Court on January 2nd,
1940, by the Bulgarian Agent:
"Sofia � January 2nd, 1940 � Have honour inform Court that Bulgarian
Government reiterates its statement concerning existence of circumstances of
force majeure for reasons given in my two earlier telegrams of October 2nd
and November 18th in consequence of which it does not consider itself bound
to present Bulgarian Rejoinder to Court by date fixed stop According to
official information advocate for Bulgarian defence well-known Professor
Gilbert Gidel has been mobilized in French army � Altinoff Minister
Plenipotentiary Agent Bulgarian Government";
[21] Having regard to the letter of January 24th, 1940, whereby the Belgian
Agent replied to the communication transmitting to him the telegram of the
Bulgarian Agent of January 2nd, 1940, and submitted to the Court "certain
observations in the form of submissions":
"Sir, � On the 4th instant you were good enough to inform me of the text of
a telegram from the Agent for the Bulgarian Government dated January 3rd,
regarding the case now pending between the State of Belgium and the State of
Bulgaria (the case of the Electricity Company of Sofia and Bulgaria). � The
attitude adopted by the Bulgarian Government in this telegram with regard to
force majeure calls for certain observations on the part of the Belgian
Government which I have the honour to submit to the Court in the form of
submissions the text of which is attached. � I have, etc. � J. de Ruelle,
Agent for the Belgian Government. � Case concerning the Electricity Company
of Sofia and Bulgaria. � Submissions. � Having regard to the telegram sent
by the Agent for the Bulgarian Government to the Registrar of the Court on
January 3rd, � Whereas the Belgian Government cannot accept the contention
therein set forth, namely that the state of war at present existing between
certain countries constitutes a situation of force majeure preventing the
continuation of the proceedings which should therefore be suspended
indefinitely until the end of the war, � Whereas this contention is
unreasonable, calculated to obstruct the rights of the applicant Party and
inconsistent with the high mission of the Court, � Whereas neither of the
Parties to the case is involved in the hostilities and nor are the
Netherlands, where the seat of the Court is established, � Whereas it can be
established, if the fact be denied, that communications between these three
countries have not been interrupted, � Whereas furthermore if the Court,
which has sole responsibility for its procedure, should for any reason see
fit to grant a final extension of time, the Belgian Government would not
raise any objection as it stated in the course of the oral proceedings in
regard to the indication of interim measures of protection, � Whereas
however no such limited step is contemplated in the above-mentioned telegram
of the Agent for the [p8] Bulgarian Government, � For these reasons, � May
it please the Court, � To declare that there is no ground for the suspension
of its proceedings, the argument of force majeure having been wrongfully
invoked by the respondent Party, � and to afford the applicant Party an
opportunity if need be of presenting additional submissions for the
continuation of the proceedings after the Court has rendered the decision
here sought. � Brussels, January 24th, 1940. J. de Ruelle, Agent for the
Belgian Government";
[22] Whereas the judge nominated by the Bulgarian Government was duly
convoked on January 5th, 1940, for February 19th, 1940.
***
[23] Whereas, in the first place, the Court is called upon to consider
whether the alleged impossibility of collaborating with a foreign advocate
and the alleged risks of the journey to The Hague constitute circumstances
of force majeure affording justification for the non-presentation of its
Rejoinder by the Bulgarian Government on January 4th, 1940, the date fixed
after the extension of the time-limit by the Order of October 4th, 1939;
[24] Whereas, in regard to this question, it is, on the one hand, for the
Bulgarian Government, if it desires to have the assistance of an advocate,
to select some advocate, of its own or a foreign nationality, whose
collaboration in the present circumstances can be effectively secured, and,
on the other hand, it has not been established that in actual fact there has
been or is up to the present time anything to impede travelling and
communications between Bulgaria and the seat of the Court;
[25] Whereas the facts alleged do not therefore constitute a situation of
force majeure calculated to justify the Bulgarian Government for having
failed to observe the time-limit which was granted to it for the filing of a
Rejoinder and which expired on January 4th, 1940;
[26] Whereas it appears from the Memorial and Counter-Memorial respectively
filed in accordance with the Orders of March 28th, August 27th, 1938, and
April 4th, 1939, that, as provided by Article 42 of the Rules, on the one
hand, the Belgian Government, the Applicant, has presented its statement of
the facts, its statement of law and its submissions, and, on the other hand,
the Bulgarian Government, the Respondent, has stated whether it admits or
denies the facts set out in the Belgian Memorial, has presented its
additional facts, its observations concerning the statement of law in the
Belgian Memorial, its own statement of law in answer and its submissions;
[27] Whereas the Bulgarian Government, by now abstaining without valid
reasons from presenting a Rejoinder in response to the Belgian Reply of
August 19th, 1939, as it had the opportunity of doing up till January 4th,
1940, pursuant to [p9] the Order of April 4th, 1939, and the extension of
time granted by the Order of October 4th, 1939, cannot thus of its own
volition prevent the continuation of the proceedings instituted and the due
exercise of the powers of the Court in accordance with the Statute and
Rules;
[28] Whereas the Belgian Government, in its observations presented in the
form of submissions on January 24th, 1940, expressly asks the Court that the
proceedings shall not be suspended and that an opportunity shall be afforded
it, if need be, of presenting additional submissions for the continuation of
the proceedings;
[29] Whereas in these circumstances the written proceedings must be regarded
as terminated and the case is, under Article 45 of the Rules, ready for
hearing;
[30] Whereas, under Article 47, paragraph 1, of the Rules, the Court must
now fix the date for the commencement of the oral proceedings;
[31] Whereas furthermore regard must be had in this connection to the time
necessary to enable the Parties to prepare their respective oral arguments;
[32] For these reasons,
The Court
fixes May 16th, 1940, as the date for the commencement of the oral
proceedings in the suit brought before the Court by the Application of the
Belgian Government filed with the Registry of the Court on January 26th,
1938.
[33] The present Order has been drawn up in French, the Parties having
agreed that the case should be conducted in that language. [p10]
[34] Done at the Peace Palace, The Hague, this twenty-sixth day of February,
one thousand nine hundred and forty, in three copies, one of which will be
deposited in the archives of the Court and the others will be communicated
to the Belgian Government and the Bulgarian Government respectively.
(Signed) J. G. Guerrero,
President.
(Signed) J. Lopez Olivan,
Registrar.
|
|