Holländisches Frachtenkontor v German Federal Republic
| Date | 15 Junio 1960 |
| Court | Obsolete Court (Germany) |
(Wickstrm, President; Sauser-Hall and Lagergren, Vice-Presidents; Schwandt, Euler, Bennett, Arndt, Marion, Phenix.)
Treaties Interpretation of Principles and rules of Strict interpretation Whether compatible with intention of signatories Ascertainment of such intention.
Arbitration The award Appeal Admissibility of Charter of Arbitral Commission on Property, Rights and Interests in Germany, Article 8 (General principles of international law and of justice and equity).
Arbitration Procedure Competence Competence to extend time-limits Appeals submitted after expiration of time-limits Arbitral Commission on Property, Rights and Interests in Germany.
The Facts.The decision in the present case was delivered on appeal against the judgment of the Third Chamber of the Commission of June 23, 1959.1 The Commission stated the facts as follows: In the present case, the complainant claims the benefit of the provisions of Article 6 of Chapter Ten of the Settlement Convention in relation to the assessment of property levy. The complainant's objection to the assessment of the tax was rejected by the Finanzamt [Treasury Office], Duisburg-Nord, by decision dated November 14, 1956. The complainant's appeal from that decision was rejected by the Finanzgericht [Treasury Court], Dsseldorf, on June 11, 1958. The judgment of the Finanzgericht was served upon the complainant on July 9, 1958.
In a pleading of August 4, 1958, the complainant appealed from that judgment to the Commission. This pleading was sent to the Finanzgericht where it was received on August 5, 1958, that is to say, within the statutory time-limit of 30 days. From there it was forwarded to the Registry of the Commission but was not received there until September 19, 1958.
In its answer, the defendant raised the objection of inadmissibility on the ground that the appeal had been lodged too late.
The Third Chamber of the Commission considered separately the question of admissibility and, by Judgment of June 23, 1959, declared the appeal to be inadmissible (Decisions, Vol. II, No. 58).
This Judgment having been served upon the complainant on June 26, 1959, the latter filed an application for leave to appeal on July 16, 1959.
By Order of October 30, 1959, the Commission in plenary session granted this application for leave to appeal.
On November 7, 1959, the complainant filed its appeal from the Judgment of the Third Chamber.
The parties having exchanged further pleadings, the oral hearing took place on March 18, 1960, in the course of which the plenary session heard the parties.
Held: that the appeal must be admitted. The judgment against which the appeal was lodged was set aside and the case remanded for decision on the merits and the costs. The signatories of the Convention on which the jurisdiction of the Commission was based did not exclude the possibility of remedying an error of procedure where such error could be regarded as excusable and an injustice would otherwise result.
The Commission said: The provisions which confer a right of appeal to the Commission from decisions of the German finance courts of first instance under Article 6 of Chapter Ten of the Settlement Convention are to be found in Article 12 of the said Chapter. The relevant provisions of the last-mentioned Article read as follows:
The following decisions may be appealed to the Arbitral Commission upon application to the Commission by the party concerned within thirty days after the service thereof.
Gegen die nachstehenden Entscheidungen kann auf Antrag der beteiligten Partei innerhalb von dreiig Tagen nach Zustellung Berufung an die Schiedskommission eingelegt werden.
Les dcisions suivantes sont susceptibles d'appel devant la Commission Arbitrale sur demande adresse dans les trente jours de la notification de la dcision.
A strict interpretation of these provisions, above all of those of the German text, leads to the conclusion that it is at the Registry of the Commission that the appeal must be received within the specified time. This point of view corresponds also to the provisions of Rule 23 (a) of the Rules of Procedure of the Commission, which runs as follows:
When a pleading or other document is to be filed by a specified date or within a specified time, the date of the receipt of the pleading in the Registry will be regarded as the effective date.
A strict application of these provisions would lead to the conclusion that the complainant's appeal from the judgment of the Finanzgericht was filed too late.
The Settlement Convention does not contain any provisions as to the possibility in certain cases of admitting an appeal submitted after the expiry of the time-limit fixed by the Convention. Thus the question arises whether the Commission has the power to do so.
Paragraph (d) of Rule 23 of the Rules of Procedure of the Commission which entered into force on April 1, 1957, reads as follows:
If, after giving the other party an opportunity of stating his views, the Commission is satisfied that a failure to comply with a time-limit is not attributable to the default or negligence of the party himself, it may decide that any step taken after the expiry of the time-limit in question shall be valid.
At its plenary session of November 30, 1957, the Commission agreed to replace this paragraph (d) by the following new paragraph (d):
The Commission may declare as valid any step taken after the expiration of a time-limit in respect of which the President could have granted an extension under the preceding paragraph.
It should be stated:
that although the terms of the old paragraph seem to authorize the Commission to declare valid, in certain circumstances, any step taken after the expiry of a time-limit, even of one fixed by the Settlement Convention, this was not the intention of the Commission during the drafting of the Rules of Procedure;
that the replacement of the old paragraph by the new one was made partly to avoid the possibility of such an interpretation; and
that the Commission always intended to reserve the examination of the problem in question to its own decision pursuant to Rule 77 of the Rules of Procedure which provides:
Any points of procedure not covered by these Rules or by the Charter shall be decided by the Commission when occasion arises.
The problem of the authority of the Commission in respect of the point in question must depend on the intention of the Signatory States as disclosed by the provisions of the Charter of the Commission.
Paragraph 2 of Article 14 of the Charter authorizes the Commission, in general terms, to determine rules of procedure subject only to the qualification that they shall be consistent with the provisions of the Charter. As paragraph 1 of Article 6 of the Charter refers to Article 12 of Chapter Ten of the Settlement Convention, the rules of procedure must also be consistent with the provisions of the last-mentioned article. The question is thus to determine whether the Signatory States really intended that the time-limit of 30 days provided in the said Article 12 shall apply in all possible circumstances, no matter what injustice might result therefrom. In the opinion of the Commission, it is unlikely that, in a convention essentially designed to remedy injustices, the Signatory States should have intended to exclude the possibility of remedying an error of procedure which might be considered to be excusable and which would lead to injustice. The opinion appears to be confirmed by the provisions of Article 8 of the Charter of the Commission which runs as follows:
In arriving at its decisions, the Commission shall apply the provisions of the Convention and of legislation made applicable thereby. Where necessary to supplement or interpret such provisions, or in the absence of any relevant provisions, it shall apply the general principles of international law and of justice and equity.
The terms of the second sentence of this article are wider than would be necessary if it had been intended that they should apply only to cases where it would be necessary to avoid a non liquet, and the Commission is of opinion that in reliance upon these provisions it can, in certain cases, admit an appeal submitted to the Registry of the Commission after the expiry of the time-limit fixed by the Settlement Convention.
The Commission must thus examine whether, in the case at issue, the circumstances are such as to induce it to apply this principle.
The judgment of the Finanzgericht contains the following instructions as to the various means of appeal against the judgment:
It is true that the complainant, if it had examined these instructions and the above-mentioned Article 12 with the greatest attention, ought to have understood that it had to lodge its notice...
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