TREATY OF ARBITRATION AND CONCILIATION BETWEEN GERMANY AND DENMARK. SIGNED AT BERLIN, JUNE 2, 1926
The German Reich and The Kingdom of Denmark, being desirous of promoting the development of the procedure for the pacific settlement of international disputes, have agreed to conclude a general Treaty of arbitration and conciliation.
For this purpose they have appointed as their Plenipotentiaries: The President of the German Reich:
Dr. Gustav Stresemann, Reichminister for Foreign Affairs;
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His Majesty the King of Denmark and Iceland:
M. Herluf Zahle, Chamberlain, Envoy Extraordinary and Minister Plenipotentiary at Berlin,
Who, having communicated their full powers, found in good and due form, have agreed on the following provisions:
Article 1
The Contracting Parties undertake to submit to the procedure of arbitration or conciliation, in conformity with the present Treaty, all disputes of any nature whatsoever which may arise between Germany and Denmark and which it has not been possible to settle within a reasonable period by diplomacy or to bring, with the consent of both Parties, before the Permanent Court of International J*ustice.
Disputes for the solution of which a special procedure has been laid down in other conventions in force between the Contracting Parties shall be settled in accordance with the provisions of such conventions.
Article 2
The disputes which, at the request of either of the Parties, shall be submitted to arbitration procedure are those arising between the two Parties with regard to points of law, and particularly with regard to the following subjects:
Firstly, the existence, interpretation and application of any treaty concluded between the two Parties;
Secondly, any question of international law;
Thirdly, the existence of any fact which, if established, -would constitute a breach of an international obligation;
Fourthly, the extent and nature of the reparation to be made for any such breach.
In the case of disagreement between the Parties as to whether a dispute falls under one of the above categories, this prior question shall be settled by arbitration.
Article 3
In regard to questions which, under the national laws of the Party against which a demand has been formulated, fall within the competence of the judicial authorities, including the administrative tribunals, such Party may require that the dispute shall not be submitted to arbitration until judgment with final effect has been pronounced by these authorities, and, further, that the matter shall be brought before the arbitration tribunal not later than six months after the date of such decision. The above provisions shall not apply if justice has been refused and if the mat-
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ter has been brought before the appeal authorities provided for by law.
Disputes between the Parties regarding the application of the preceding provision shall be settled by arbitration.
Article 4
The tribunal shall base its decisions:
Firstly, on general or special Conventions in force between the Parties, and the principles of law arising therefrom ;
Secondly, international custom as evidence of a general usage accepted as law;
Thirdly, the general principles of law recognized by civilized nations; ,
Fourthly, the results of recognized doctrine and legal practice as aids in the establishment of rules of law.
Subject to the consent of the two Parties, the arbitral tribunal may, instead of basing its decision on legal principles, give an award in accordance with considerations of equity.
Article 5
In the absence of agreement to the contrary between the Parties in each particular case, the arbitration tribunal shall be constituted as follows :
The arbitrators shall be chosen from the list of members of the Permanent Court of Arbitration established by The Hague Convention of October 18th, 1907, for the Pacific Settlement of International Disputes.
Each Party shall appoint two arbitrators, of whom one only shall be a national of that Party. The Parties shall jointly nominate the fifth arbitrator, who shall also be the President of the tribunal. The President shall not be of the same nationality as any of the other arbitrators. He may not be domiciled within the territory of either Party, and he may not be or have been in the service of either Party.
New arbitrators shall be chosen for each individual dispute. The Contracting Parties, however, reserve the right to concert measures so that for a certain class of dispute the tribunal shall consist of the same arbitrators for a definite period.
Vacancies occurring in the tribunal for any cause whatsoever shall be filled in the manner fixed for the nominations.
Article 6
In each individual case the Contracting Parties shall, in pursuance of the present Treaty, draw up a special agreement (com-
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promise) stating the subject of the dispute, any special powers conferred on the tribunal, its composition, the place where it shall meet, the amount that each Party shall deposit in advance to cover expenses, the rules to be observed in regard to the form and time-limits of the proceedings, and any other details that may be necessary.
Any disputes regarding the terms of the special agreement shall, subject to the provisions of Article 7, be settled by the arbitration tribunal.
Article 7
If the special agreement has not been drawn up by the Parties within a period of six months after one Party has notified the other of its intention to refer the dispute to arbitration, either Party may request the Permanent Board of Conciliation, provided for under Article 13, to draw up the agreement. The Permanent Board of Conciliation shall, within two months after the question has been submitted to it, establish the special agreement, the subject of the dispute being determined on the basis of the statements furnished by the Parties.
The same procedure shall be followed when either of the Parties fails to nominate the arbitrators for whose appointment it is responsible, or when the Parties cannot agree upon the appointment of the President. .
Pending the constitution of the arbitration tribunal, the Permanent Board of Conciliation shall also be competent to adjudicate upon any other dispute relating to the special agreement.
Article 8
The decisions of the arbitration tribunal shall be taken by a majority vote. The opinion of any member of a minority of the tribunal who dissents from the award shall, at his request be duly placed on record.
Article 9
The 'arbitration award shall specify the manner in which it is to be carried out and, in particular, indicate the time-limits to be observed. .
If it is established in an arbitration award that a decision or measure of a court of law or other authority of one of the Parties is wholly or partly at variance with international law, and if the constitutional law of that Party does not permit, or only partially permits, of the consequences of the decision or measure in question being annulled by administrative means, the arbitration award shall allow the injured Party equitable satisfaction of another kind.
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< Article 10
Subject to any provision to the contrary in the special agreement, either Party may submit to the Tribunal which gave the award a request for the revision of the award. This request may only be justified by the discovery of a fact which would have been likely to exercise a decisive influence on the award, and which, at the time of the close of the proceedings, was unknown to the tribunal itself and to the Party demanding the revision, unless the Party in question was at fault in not being aware of it. At the request of either Party, the arbitration tribunal shall first decide whether -the above conditions applicable to a request for revision afe fulfilled.
Members of the arbitration tribunal who for any reason do not take part in the revision proceedings shall be replaced in the manner fixed for their appointment.
The period within which the request provided for in the first paragraph may be presented shall be fixed in the arbitral award, unless this has already been laid down in the special agreement.
Article 11
Any dispute arising between the Parties as to the interpretation and execution of the arbitral award shall, subject to any agreement to the contrary, be settled by the tribunal which made it. In that case the provision contained in the second paragraph of Article 10 shall apply, mulatis mutandis.
Article 12
Any dispute which under the preceding Articles of the present Treaty cannot be referred to arbitration, and which is not settled amicably in some other manner with the consent of the two Parties, shall, at the request of either of the Parties concerned, be submitted to the procedure of conciliation.
If the opposing Party claims that a dispute for which conciliation procedure has been initiated should be settled by the Permanent Court of International Justice, or by the arbitration tribunal, or by means of a special procedure as provided for in Article 1, second paragraph, the body whose jurisdiction is claimed shall decide this prior question.
The Governments of the Contracting Parties may agree that a dispute which under the terms of the present Treaty can be brought before the Permanent Court of International Justice or an arbitration tribunal shall be submitted to a procedure of conciliation, either without appeal or subject to appeal to the Permanent Court of International Justice or an arbitration tribunal.
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1 Article 13
A Permanent Board of Conciliation shall be constituted for the procedure of conciliation.
The Permanent Board of Conciliation shall consist of five members. Each Contracting Party shall appoint two members, one of whom may be one of its own nationals. The Parties shall jointly nominate the fifth member, who shall be the Chairman. The Chairman shall not be of the same nationality as any other member. He shall not be domiciled within the territory of either Party, nor shall he be or have been in the service of either Party.
The members of the Permanent Board of Conciliation shall be " appointed for a period of three years, In the absence of any agreement to the contrary between the Contracting Parties, their . appointment should not be revoked during their term of office. Should no successor be appointed to a member of the Board of Conciliation on the expiration of his term of office, that term shall be regarded as renewed for a period of three years. The Chairman shall, however, retire on the expiration of his term of office should either of the Contracting Parties so request. Should the term of office of any member expire while proceedings are still pending, such member shall continue to take part in the examination of the dispute until the termination of the proceedings whether his successor has been appointed or not.
Subject to the stipulations of the second paragraph of the present Article, either Contracting Party may, within fourteen days from the date when a dispute has been referred to the Permanent Board of Conciliation, replace, for the examination of the particular dispute, one of the members whom it has appointed by a person possessing special competence in the matter. The Party making use of this right shall immediately inform the other Party;* the latter shall in that case be entitled to take similar action . within fourteen days from the date when the notification reaches it.
The Permanent Board of Conciliation shall be constituted in the course of the six months following the exchange of the instruments of ratification of the present Treaty. Retiring members shall be replaced within the shortest possible time in accordance with the procedure laid down for the first election.
Should the Chairman not have been nominated . within six months after the exchange of the instruments of ratification, or, in the case of a subsequent election, should a Chairman not bave been appointed within three months from the retirement of the previous Chairman, His Majesty the King of Sweden shall, in the
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absence of any other agreement, be requested to make the necessary appointment.
Article 14
The Permanent Board of Conciliation shall enter upon its duties as soon as a dispute is referred to it by either of the Parties. Such Party shall communicate its request simultaneously to the. Chairman of the Permanent Board of Conciliation and to the other Party. The Chairman shall summon the Permanent Board of Conciliation to meet at the earliest possible moment.
The Parties undertake to facilitate, in all circumstances and in every respect, the work of the Permanent Board of Conciliation, and in particular, to afford it all possible legal assistance through their competent authorities. They shall use all the means at their disposal to allow it to take the evidence of witnesses and experts in their respective territories and to visit the localities in question. The Board may obtain evidence either in pleno or through its Chairman.
. Article 15
The Permanent Board of Conciliation shall fix its place of meeting and shall be at liberty to change it.
Article 16
The deliberations of the Permanent Board of Conciliation shall be valid if all the members have been duly convened, and if the Chairman and at least one of the members appointed by each Party are present.
Decisions of the Permanent Board of Conciliation shall be taken by a majority vote. If the votes are equally divided the Chairman shall have a casting vote.
Article 17
' The Permanent Board of Conciliation shall draw up a report which shall set out the facts of the case and shall, unless it may seem undesirable in the particular circumstances of the case, contain proposals for the settlement of the dispute. In the report the opinion of any member of a minority of the Board who dissents from its conclusions shall, at his request, be duly placed on record. ,
The report shall be submitted within six months from the date on which the dispute was laid before the Permanent Board of Conciliation, unless the Parties agree to extend, or, before the Permanent Board of Conciliation has met, to shorten this timelimit. The report shall be drawn up in three copies, one of which shall be handed to each
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The report shall not, either as regards statements of fact or as regards legal considerations, be in the nature of a final judgment binding upon the Parties. When submitting its report the Permanent Board of Conciliation may call upon the Parties to state, within a time-limit to be fixed in the report, whether, and within what limits, they recognize the correctness of the findings of the report and accept the proposals which it contains.
The Parties shall jointly decide whether the report shall be published immediately. If they fail to reach an agreement on this point, the Permanent Board of Conciliation may cause the report to be published immediately should there be special reasons for so doing.
Article 18
Each Party shall bear the cost of the emoluments due to the members of the Permanent Board of Conciliation appointed by itself and shall bear half the cost of the Chairman's emoluments.
Each Party shall defray the expenses which it has itself incurred in connection with the proceedings and half of the expenses which the Permanent Board of Conciliation declares to be common to both Parties.
Article 19
The award made as a result of the procedure of arbitration shall be carried out in good faith by the Parties concerned.
The Contracting Parties undertake during the course of the arbitration or conciliation proceedings to refrain as far as possible from any action liable to have a'prejudicial effect on the execution of the arbitral award or on the acceptance of the proposals made by the Permanent Board of Conciliation.
The arbitration Tribunal may, at the request of either of the Parties, prescribe precautionary measures, provided they can be carried out by the Parties by administrative means. The Permanent Board of Conciliation may also make proposals^ for the same purpose.
Article 20
Subject to any provisions to the contrary laid down in the present Treaty or in the special agreement, the procedure of arbitration and conciliation shall be regulated by The Hague Convention of October 18th, 1907, for the Pacific Settlement of International Disputes. .
In so far as the present Treaty refers to the stipulations of The Hague Convention, the latter shall continue to be applicable to the relations between the Contracting Parties, even if one or both of them should have denounced The Hague Convention.
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In so far as the present Treaty or the special agreement or any other Conventions in force between the Parties do not lay down thes time-limits or other details connected with the procedure of arbitration or conciliation, the arbitration tribunal or the Permanent Board of Conciliation shall itself be competent to decree the necessary provisions.
Article 21
The present Treaty shall be ratified as soon as possible. The instruments of ratification shall be exchanged at Berlin.
The Treaty shall come into force one month after the exchange of the instruments of ratification.
The Treaty shall be valid for a period of ten years. Unless denounced six months before this period expires, it shall remain in force for a further five years, and shall be similarly renewed, so long as it has not been denounced within the prescribed period.
If a dispute which has been referred to the arbitration or conciliation has not been settled when the present Treaty expires, the case shall be proceeded with according to the stipulation of' the present Treaty, or of any other agreement which the Contracting Parties may decide to substitute therefor.
In faith whereof the Plenipotentiaries have signed the present Treaty.
Done in duplicate in German and Danish at Berlin, June 2, 1926.
(Signed) HERLUF ZAHLE.
' (Signed) STRESEMANN.
FINAL PROTOCOL
TO THE GERMAN-DANISH TREATY OF ARBITRATION AND CONCILIATION
1. The Contracting Parties are agreed that in doubtful cases the various stipulations of the present Treaty shall be interpreted in favour of the application of the principle of the settlement of disputes by arbitration.
2. The Contracting Parties declare that the Treaty shall also apply to disputes arising out of events which occurred prior to its conclusion. It shall not, however, apply to disputes with regard to claims for compensation arising out of military measures taken during the world war.
3. The Treaty shall not cease to be applicable if third States are concerned in a dispute. The Contracting Parties shall endeavour, if necessary, to induce the third States to agree to accept
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the procedure of arbitration or conciliation. In this case, the two Governments may, if they so desire, arrange by common consent that the Tribunal or the Permanent Board of Conciliation shall be constituted in a special manner. If no agreement is reached with the third States within a reasonable period, the procedure between the Contracting Parties shall take the course prescribed in the Treaty, but shall take effect only as far as they themselves are concerned. ,
4. In the event of Germany acceding to the Permanent Court of International Justice at The Hague or becoming a Member of the League of Nations, legal disputes in regard to which the two Parties have been unable to agree as to whether the dispute should be brought before the Permanent Court of International Justice at The Hague or be submitted to arbitration may, at the request of either Party, be referred direct to the Permanent Court of International Justice after one month's notice has been given to the other Party. The same stipulation shall apply if a general Treaty of arbitration between Germany and any third Power comes into force containing a similar provision.
Berlin, June 2, 1926. '
(Signed) HERLUF ZAHLE.
(Signed) STRESEMANN.
EXCHANGE OF NOTES
BETWEEN THE DANISH AND GERMAN GOVERNMENTS ON THE OCCASION OF THE SIGNATURE OF THE TREATY OF ARBITRATION AND CONCILIATION, DATED JUNE 2, 1926, BETWEEN DENIARK AND GERMANY
Royal Danish Legation.
Berlin, June 2, 1926.
Your Excellency, ': ' .
With reference to the signature to-day of the Danish-German Treaty of Arbitration and Conciliation, I am instructed by my Government to inform you as follows:
Should the Parties not hav< reached an agreement within one month after the Permanent Bard of Conciliation has concluded its proceedings, the dispute liay be referred by either Party to the Council of the League of.Nations, which shall deal with the case as provided in Article XV of the Covenant of the League of Nations. -It is further understood tlat disputes between Germany and a third State to which Denmak, as a Member of the League of Nations, may be a Party shall,not be regarded as disputes between
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the Contracting Parties within the meaning of the present Treaty. The same stipulation shall apply, as soon as Germany shall have become a Member of the League of Nations, to disputes between Denmark and a third State to which Germany, as a Member of the League of Nations, may be a Party.
I have the honour to be, etc.
(Signed) HERLUF ZAHLE.
Dr. Gustav Stresemann, .
Reich Minister for Foreign Affairs,
Berlin.
Ministry Of Foreign Affairs. ,
Berlin, June 2, 1926.
Your Excellency,
In reply to your letter of to-day's date, I have the honour, on behalf of the German Government, to confirm the following declaration with reference to the signing to-day of the German-Danish Treaty of Arbitration and Conciliation;
In the event of Germany becoming a Member of the League of Nations, the provisions of the Treaty regarding the procedure of conciliation shall be supplemented by the following provision :
"Should the Parties not have reached an agreement within one month after the Permanent Board of Conciliation has concluded its proceedings, the dispute may be referred by either Party to the Council of the League of Nations, which shall deal with the case as provided in Article XV if the Covenant of the League of Nations."
It is further understood that disputes between Germany and a third State, to which Denmark, as a Member of the League of Nations, may be a Party, shall not b? regarded as disputes between the Contracting Parties within themeaning of the present Treaty. The same stipulation shall apply, as soon as Germany shall have become a Member of the league of Nations, to disputes between Denmark and a third State to which Germany, as a member of the League of Nations, maybe a Party.
I have the honour to be, etc.
(Sirned) G. STRESEMANN.
His Excellency M. Zahle,
Minister of His Majesty the King of Denmark.
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