¹ Apart from such cases, the Court has undoubtedly also the right to judge of its jurisdiction proprio motu, as the Permanent Court of International Justice did in fact, in an affirmative sense, in the parallel cases of the payment of various Serbian and Brazilian loans issued in France (A, Nos. 20/21) and, in a negative sense, in the Statute of Eastern Carelia case (B, No. 5). The International Court of Justice was particularly pressed to deny its jurisdiction in some “advisory” cases, viz. those concerning the conditions of admission of new Members to the U.N. (first phase: Reports 1948, p. 57) and concerning the interpretation of peace treaties with Bulgaria, Hungary and Rumania (first phase: Reports 1950, p. 65).

² Article 62, para 3: “Upon receipt by the Registrar of a preliminary objection filed by a party, the proceedings on the merits shall be suspended …” – para. 5: “After hearing the parties the Court shall give its decision on the objection or shall join the objection to the merits …”

¹ Since there are two kinds of merits involved in this case, which is very confusing, I intend to distinguish them by writing “merits” where Great-Britain's obligation to arbitrate is at stake and merits where allusion is made to the validity of the claim of Mr. Ambatielos.

¹ A third formulation, envisaging the matter not from the standpoint of the Parties or of the Tribunal, but with a view to the characteristics of the claim in the light cf the arbitration clause, would be: as to the question of whether the difference is subject to (obligatory) arbitration, which latter formulation must in its turn be distinguished from the question of whether a particular claim is “arbitrable”, i.e. capable of arbitration by its nature.But for the sake of simplicity I shall occasionally use the term “arbitrable” in the sense of this third formulation.

¹ Since then replaced by the International Court of Justice, according to Article 37 of its Statute.

² Solved by the judgement Ambatielos case (jurisdiction) of July 1, 1952; I.C.J. Reports 1952, p. 28.

¹ Dissenting judges were: Sir Arnold McNair, President, and Judges Basdevant, Zoričič, Klaestad and Hsu Mo.

² Reports 1952. p. 43.

¹ Judge Carneiro, Levi (Reports 1952. p. 33)Google Scholar: “Or. dans le traité de 1926. il n'y a pas de disposition supprimant la commission arbitrale prévue par le traité de 1886; au contraire, rien n'empêche que cette commission soit encore constituée quand cela est nécessaire.”

² President McNair, (l.c., p. 63/64)Google Scholar: “Such claims (as were based on the Treaty of 1886) acquire an existence independent of the treaty whose breach gave rise to them … In other words, … the first sentence of the Declaration was, however prudent, strictly speaking unnecessary… On the other hand, the second sentence … dealing with the arbitral procedure, was necessary to preserve that procedure, because it would otherwise lapse upon the expiry of the Treaty of 1886.”

³ Judge Mo, Hsu (I.e., p. 86)Google Scholar: “But for the Declaration no claims based on the provisions of the 1886 Treaty could be entertained. This is not because they would have been wiped out by the 1926 Treaty but because the 1886 Protocol, according to the modus vivendi, would have completely lost its force.” Therefore, in his opinion the provisions of the Declaration were not in the nature of an interpretation clause of the new Treaty of 1926. but a necessary saving clause with a view to the expiry of the Treaty of 1886.

⁴ There was some confused discussion in the Court whether the parties had agreed during the argument that eventually the Court itself should decide on the merits of the Ambatielos claim. This was, however, rejected. Only judge Alvarez expressly declared that there were sufficient grounds for holding that the Court had such jurisdiction (Reports 1952, p. 47). Yet another judge must have been of the same opinion since on this point the majority was 13 to 2. Judge Levi Carneiro felt that the Court should have stated explicitly that the parties could still refer the merits to the Court by a special agreement, more conclusive than the ambiguous oral statements by Counsel (l.c., p. 51).Google Scholar

¹ An interesting argument was that the only difference between the two arbitral settlements was a procedural variation and that at least in English law the presumption as to procedural statutes is in favour of retroactive application. The Court refused, however, to investigate both the position in national law and the point whether questions of procedure cover questions of jurisdiction.

² The Court paid no particular attention to a British argument which was not, however, without some weight: annexed to a similar Treaty, concluded between Greece and Italy on November 24, 1926, were two separate Declarations, one of which was almost identical to that agreed upon between Greece and Great Britain; contrary to that Declaration, the other one expressly stated that it was to be regarded as a part of the Treaty.

¹ This was a most peculiar ground, or rather not a valid ground at all, on which to reject the argument. The lack of full argument might have led the Court to re-open the proceedings. It might also have induced it to join the objection to the “merits” of the Greek claim in the Court. It might, finally, have been eliminated from the preliminary phase of the proceedings as belonging essentially to those “merits”, as was correctly stated by the majority judge Levi Carneiro (Reports 1952, p. 51/52).Google Scholar But insufficient argument can never be adduced as a justification for eliminating a point which could in itself have been conclusive for a decision on the Court's jurisdiction. The Court seems, in fact, to have considered joining the objection against its jurisdiction to deal with the “merits” (Great Britain's obligation to arbitrate) to those “merits”, but this suggestion has evidently not prevailed (see judge Levi Carneiro, Reports 1952, p. 48).Google Scholar In his turn this judge appears to have favoured the opposite procedure, viz. to anticipate the final decision of the case by at once affirming – or denying – the obligation of the United Kingdom to arbitrate, because in his opinion the fullness of the arguments appeared to allow of such a decision (l.c. p. 50).Google Scholar This expedient would, however, have been incompatible with the Rules of the Court.

² The Greek judge ad hoc Spiropoulos objected against this proviso mainly on the ground that this was a point which, in accordance with the general principles of the law of international arbitration, must be decided by the arbitral tribunal itself. In his opinion (Reports 1952, p. 55 sqq.) “the obligation of the United Kingdom to accept arbitration is independent of the question whether the Ambatielos claim is, in fact, based on the Treaty of 1886. This obligation would exist even if the claim were not, in fact, based on the Treaty in question. It is a different thing that the Commission of Arbitration would only have been able to recognize the Ambatielos claim as valid, to the extent that it was, in fact, based on the Treaty of 1886”. – On the other hand, the majority judge Levi Carneiro felt that the further statement that the claim was, in fact, “based” on the Treaty of 1886 could not be postponed to the second phase on the “merits”, but was a necessary pre-condition already for upholding jurisdiction (ibid., p. 48).

¹ The other argument was that “by necessary implication from the very nature of the Declaration” the latter must be held to be amongst the provisions of the main Treaty. All concerned agreed that the Declaration was intended as a saving clause to remedy the legal consequences threatened by the final lapse of the older Treaty, but the judges disagreed on the problematic question to which of either cause that final lapse must be attributed: to the coming into force of the new Treaty (as was the opinion of the majority), or to the appearance of the date on which, after repeated prorogations, the formal denunciation of the old Treaty would ultimately take effect (as. in my opinion rightly, was held by the minority).

¹ It is not clear why this unusual and peculiar theoretical construction was chosen. In any case the Contracting Parties could not by such means entice the International Court away from its strictly judicial task and procedure.

¹ Solved by the judgement Ambatielos case (merits: obligation to arbitrate) of May 19, 1953, I.C.J. Reports 1953, p. 10.

¹ Is it in the light of this ambiguity that one of the majority judges, Mr. Levi Carneiro, felt it necessary to state in so many words (Reports 1932, p. 52) that after the Court should have maintained the jurisdiction of the Commission, the latter could no longer declare that it lacked such jurisdiction. In his opinion such an attitude would be tantamount to a judicial rebellion calling for an order by the Court for the constitution of a new commission, on the legal ground that, although arbitral commissions are autonomous, their autonomy is limited by the instrument which institutes them – and in the present case that instrument would be the judgement of the Court.

² Mr. Zoričič did not participate in the second phase of the proceedings. For the rest Mr. Read (Canada) had changed places in the minority with Mr. Hsu Mo. Whereas the latter joined the majority on the “merits” once the Court had upheld its jurisdiction, the former joined the minority in holding that there was no difference subject to arbitration.

¹ In practice, the difference between the opinion of the majority and that of the dissenting judges consisted of the following. As a legal basis for its claim the Hellenic Government invoked Articles I, X and XV, para. 3, of the Treaty of 1886, which ensured to the subjects of the co-contracting Party “the same rights, privileges, liberties, favours, immunities and exemptions in matters of commerce and navigation which are or may be enjoyed by native subjects” (Article 1), “most favoured nation treatment” (Article X) and “free access to the Courts of Justice for the prosecution and defence of their rights” (Article XV, para. 3), respectively, together with four 17th. century treaties between Great Britain and Denmark (1660/61 and 1670), Great Britain and Sweden (1654 and 1661) and a treaty with Columbia of 1911. The Court held that the contradictory contentions of the parties with respect to the scope and effect of the most-favoured nation clause in Article X, as well as the divergence of their views concerning the meaning of the expression “free access to the Courts of Justice” contained in Article XV, para. 3, justified the conclusion that this was a case where the Hellenic Government was presenting a claim on behalf of a private person “based on the Treaty of 1886”. On the other hand, the minority felt that the controversy had no connection with commerce, that it was concerned rather with a claim based on an alleged improper administration of justice, in particular with regard to the production of evidence in proceedings in the English Courts, and that the Articles quoted by the Greek Government from the Treaty of 1886 were not relevant to the administration of justice, so that the difference did not appear to them to come under the provisions of the Treaty and, therefore, fell outside the scope of the arbitration clause in the Declaration of 1926.

¹ Even the International Court itself would be powerless to act if, in a situation parallel to that under b), the jurisdiction treaty made the appeal to the Court explicitly dependent upon a further detailed agreement between the Parties.

¹ The text of Article 2, para. 1, of the “Draft Convention on Arbitral Procedure”, as adopted by the Commission at its 232nd meeting, runs as follows: “If. prior to the constitution of an arbitral tribunal, the parties to an undertaking to arbitrate disagree as to.… whether an existing dispute is within the scope of the obligation to have recourse to arbitration, such preliminary question may. in the absence of agreement between the parties upon another procedure, be brought before the International Court of Justice by application of either party. The decision rendered by the Court shall be final.” Utrecht, August 7 1953.