Enabling Private Ordering - the University of Minnesota Law School

2009] UMBRELLA CLAUSES 49
traditional dualist framework of international law by assuming
the necessity of an expropriatory conduct on behalf of the host
State, 126 the decision did not require the breach to be based on
sovereign conduct. Instead, the simple refusal to pay a
contractually due sum was a sufficient basis for finding in favor
of the foreign national based on the law of expropriation. This
decision, therefore, contrasts strikingly with the decisions in
SGS v. Philippines or Waste Management v. Mexico that both
considered simple non-performance of contractual obligations,
such as nonpayment, as insufficient for constituting
expropriation. 127
Similarly, the Landreau claim 128 concerned a dispute of a
quasi-contractual nature arising out of the refusal of the
Peruvian Government to pay royalties for the discovery of
Guano deposits to an American national. Although the award
was not based on breach of a contract, the Commission granted
relief on the basis of quantum meruit, a quasi-contractual
remedy. Again, it is interesting to note that an international
dispute settlement body entertained the case, although a
violation of international law separate from a breach of the
quasi-contractual relationship between the Peruvian
government and the American national was not in question.
Various cases were also entertained by the Mexican Claims
Commissions in the 1920s and 1930s that exclusively involved
claims for breaches of contracts governed by municipal law. 129
The Illinois Central Railroad case, 130 for example, concerned a
claim for the payment of money for the delivery of railroad
engines sold to the Mexican Government. The Respondent
moved to have the claim dismissed in arguing that there was no
question of the government’s responsibility under international
law. The Commission, however, in interpreting the United
States-Mexican General Claims Convention that provided
jurisdiction for “all claims . . . for losses or damages suffered by
persons or by their properties” 131 emphasized that:
126. Cf. The United States of America on behalf of Ina M. Hofmann and Dulce
H. Steinhardt v. The Republic of Turkey, in AMERICAN-TURKISH CLAIMS
SETTLEMENT, supra note 125, at 286.
127. See supra notes 85–87 and accompanying text.
128. Landreau (U.S. v. Peru) 1 R. Int’l Arb. Awards 352 (1922).
129. See A. H. FELLER, THE MEXICAN CLAIMS COMMISSIONS 173 et seq.
(Macmillan Co. 1935).
130. Ill. Cent. R.R. Co. v. United Mexican States, 4 R. Int’l Arb. Awards 134
(1926) (Illinois Central Railroad Case).
131. Convention of Sept. 8, 1923, United States-Mexican General Claims