The right of an alien contractor to exclude international law by surrendering the right of his State to protect him has generally not been recognized. While the possible negative effect of this part of the Calvo Clause has been contested, it cannot be said that a Calvo Clause is of no import. It has been the subject of several arbitrations and varying effect has been given to it.
The earlier arbitrations in which the Calvo Clause was dealt with focused on the terms of the contract.37 In later arbitrations, however, the compatibility of (p. 202) such a clause with international law has been considered. In the Dredging Co Case, already referred to above, which is the leading authority on the question, the tribunal defined the issue so as to place the burden on the claimant State of establishing that a positive rule of international law opposed the Calvo Clause, rather than on the respondent State of establishing that the clause was universally accepted or universally recognized. 38It has also been held, however, that each Calvo Clause must be treated on its merits. 39 Further, the clause may be construed to be either compatible or incompatible with international law, and this matter cannot be decided by imposing on the one or other party a burden of proving that international law does or does not condemn the clause, or does or does not permit it. The real question is whether international law recognizes the right of an alien contractor to surrender all rights, particularly his State's, in international law and waive all protection of his national State. To this question arbitral tribunals which have examined it have given a negative answer. 40 As a result a Calvo Clause, to have any validity, needs to be construed as compatible with rules of international law.
The accepted view, as it emerges from the cases, is that the portion of the Calvo Clause which seeks to exclude the protection of the national State is of no effect, while the clause may have limited effect and is not rendered altogether invalid. 41 As an example of this approach in State practice may be cited the reply of Great Britain to a Questionnaire of the Preparatory Committee of the League of Nations Conference on Responsibility of States in 1930, which stated:
No rule of international law prevents the inclusion of a stipulation in a contract between a Government and an alien that in all matters pertaining to the contract the jurisdiction of the local tribunals shall be complete and exclusive, nor does it prevent such a stipulation being obligatory, in the absence of any special agreement to the contrary, between the two Governments concerned, upon any international tribunal to which may be submitted a claim arising out of the contract in which the stipulation was inserted. 42
The implication is that entering into a contract containing a Calvo Clause does mean that there is a contractual submission by the alien to the local courts and the (p. 203) local law. These courts must in the first instance determine the rights and duties of the parties. If the clause is no more than an inclusion, both of the requirement that there must be a denial of justice by the local courts for a violation of international law to occur and of the law concerning exhaustion of local remedies thereafter, it becomes superfluous except, perhaps, for the purpose of determining the initial question of the proper law and for defining the initial jurisdiction to deal with the questions arising under the contract.
The next question is whether the clause can effect a modification of this position which is the usual position of the respective parties. 43 The answer to this question could depend upon whether, before the contractor's rights under the national law can be established so as to found an international law right, an affirmative judgment must have been obtained. Under the local remedies rule an ultimate affirmative judgment is not required, provided every avenue of recourse which is not ‘obviously futile’ has been explored. If the Calvo Clause requires an affirmative judgment, the ‘obvious futility’ of litigating the issue in a national court would not found jurisdiction in an international tribunal. This approach to the local remedies rule and the effect on it of a Calvo Clause is not really acceptable.
There is only one judicial authority in favour of the proposition that in the case of a Calvo Clause an affirmative decision on the alien contractor's rights is a precondition for an international claim. 44Other tribunals have consistently construed the contract as requiring no more than the ultimate exhaustion of local remedies, and not as requiring an affirmative judgment. This construction would appear to be necessary to sustain the compatibility of the clause with the rule that an individual cannot contract out of international law remedies from which he benefits but are not his in theory. If he could contract out in this way, the failure of the respondent's national court either to give a proper interpretation or to enter a proper judgment would not found an international claim, and this would defeat the rule that the Calvo Clause must be compatible with international law. 45
However, there is something more in a Calvo Clause. This relates to international arbitration or adjudication. An international arbitral tribunal derives its existence from consent based ultimately on a treaty or compromis, and hence its jurisdiction is circumscribed by the intentions of the States parties, as indicated in the treaty or compromis. These intentions may be inferred by reference to the intentions of the parties to a private contract. If it is the intention of the treaty not to disturb the agreement in the private contract, international jurisdiction may not be conferred on the particular tribunal. Then, the provision in the Calvo Clause trumps any exclusion of the local remedies rule in the compromis. It is this form of (p. 204) argument rather than arguments based on compatibility with international law that has been raised in arbitrations involving the Calvo Clause. 46
In the Dredging Co Case the tribunal first analysed the intentions of the parties to the contract, and then in the light of those intentions, discussed whether it was the intention of the treaty of arbitration that this claim should be subject to its jurisdiction. So far as the intention of the contract was concerned, it said that the purpose of the Calvo Clause ‘was to bind the claimant to be governed by the laws of Mexico and to use the remedies existing under such laws’. 47 The question which arose, then, was whether it was the intention of the treaty to ratify or disturb this contractual provision. The treaty had provided that ‘no claim shall be disallowed or rejected by the Commission by the application of the general principle of international law that the legal remedies must be exhausted as a condition precedent to the validity or allowance of any claim’. The international law rule requiring exhaustion of local remedies was abrogated by this provision. But the next question had to be asked whether this abrogation covered the express and specific contractual provision to resort to local remedies which was contained in the Calvo Clause. The tribunal held in effect that such an extended intention must clearly emerge from the context. The effect of the Calvo Clause, then, was to require exhaustion of local remedies before submission to arbitration, whereas other claimants not bound by a Calvo Clause were not so required. The presence of the Calvo Clause in a contract was known to the parties to the compromis and, thus, there was a clear intention not to renounce the applicability of the local remedies rule in such a situation. This is the best explanation of the tribunal's conclusion.
One proposition that emerges is that, it is only where it is the intention of the treaty to confer jurisdiction on a tribunal in cases in which local remedies have not been resorted to in pursuance of a Calvo Clause, that the respondent State may not set up the Calvo Clause as a bar to the claim. 48 Where a tribunal is empowered to decide questions on an equitable basis, the ordinary rules of international law governing responsibility are superseded by the law of the compromis, and hence the Calvo Clause exception may not be raised in this regard. 49 But a tribunal may refuse to allow the contractor under a Calvo clause to take the short cut of by-passing local remedies on the ground that this ‘infects the claim with a vitium proprium ’. 50 If it did not do this, the tribunal would not only sanction a deviation from the contract but it would also unilaterally sanction it so as to place one party to the contract in an advantageous jurisdictional position.
(p. 205) The role of the Calvo Clause, limited as it may be, depends on the contract and its performance. The alien contractor is held not to have contracted out of such rights as he may have possessed in respect of acts and events extraneous to the contract, though reflecting upon its performance. Hence damage to property or other tortious actions is not generally contemplated by the Calvo Clause. A difficulty arises, however, when the Calvo Clause is drafted so widely as to include a possible waiver of rights in the matter of ‘all interests connected with the contract’. The issue is whether this extends the contractual area to situations of fact not strictly associated with the contract. Two rules have been formulated by the tribunals that have dealt with the question. The first is that a Calvo Clause must be strictly construed against the general presumption that an alien contractor does not intend to contract out of his rights, and the second is that, to be given effect to at all, the renunciation of rights and the submission to a tribunal's jurisdiction must be precisely framed so as to admit of no doubts concerning the parties' intentions. Both rules were utilised in one case by the tribunal to exclude altogether the application of a Calvo Clause of this extended sort. 51
Further, a legislative enactment, which provides that all alien residents or contractors shall have no more rights than nationals possess, can likewise have no effect in international law, so far as the right of a foreign government to protect its nationals is concerned.
Attempts have been made to state the essence of the rule relating to the Calvo Clause in terms of the compatibility of the clause with the international law and its effect in the international law. For example, in the Dredging Co Case it was said:
Under the rules of international law may an alien lawfully make such a promise? The Commission holds that he may, but at the same time holds that he cannot deprive the government of his nation of its undoubted right of applying international remedies to violations of international law committed to his damage. 52
In explanation of this position it has been said that ‘the commission held that the clause was binding on the individual in that it precluded him from presenting to his government any claim connected with the contract, but not binding on his state in that it would not prevent his government from espousing a claim based on the violation of international law’. 53 But the heart of the problem is whether the rule is wider than a mere restatement of the rule relating to resort to and the exhaustion of local remedies. What is the significance of the proposition that the individual is ‘precluded from’ presenting a claim to his State, while the latter is not precluded from making one, when generally a State does not make a claim, unless the alien has first complained to it? In any case, if the alien contractor does invoke his national State's protection and thereby breaches the contract, this has, (p. 206) as it has been held, no relevance to the validity and jurisdictional propriety of the claim which the State then takes up. The State's claim cannot be precluded, because the State exercises a right belonging to it.
What is of prime importance is that, where there has been an alleged violation of international law in respect of the alien's contract, whether before or after resort to local remedies, an international claim brought by the alien's national State would not be precluded. In this case the Calvo Clause is no more than a restatement of rules relating to resort to and exhaustion of local remedies. The international legal right of the alien's national State to protect the alien cannot be interfered with by an agreement to which only the alien and not his national State is a party. That is the national State's right and survives any such agreement. 54 This is basic, whatever other ramifications a particular Calvo clause as drafted may have, which it clearly and possibly may have.
Дата добавления: 2015-09-10; просмотров: 84 | Поможем написать вашу работу | Нарушение авторских прав |