Antoine Fabiani Case - United Nations Treaty Collection

ANTOINE FABIANI CASE 109
December 30, 1896, the award was made for 4,346,656.51 francs with interest
at the rate of 5 per cent per annum from that date. The honorable arbitrator
arrives at this sum in the manner hereinafter set forth.
The decision of the honorable arbitrator, together with his reasons therefor,
was rendered in writing, which award reciting the essential facts, as well as
the reasons of the honorable arbitrator, appears on pages 4878-4915, volume 5,
Moore's History and Digest of International Arbitration.
The sum of 42,647,906.66 francs represents that part of the total claim of
M. Fabiani which was not allowed by the honorable arbitrator of Berne, and
which was denied for the reasons given in his award.
It is claimed by M. Fabiani before this commission that of the sums denied
allowance by the honorable arbitrator of Berne there are certain portions so
disposed of by him as to be still in force against the respondent Government
under the general terms of the protocol constituting this commission, aggregating
9,509,728.30 francs.
The reasons given by Fabiani before this present commission for ascribing
present vitality to the claims now before this commission are, in substance,
as follows:
The decision of the arbitral statement of Berne is, in effect, that all the chief
points of the actual demands and the arbitrary acts " jails du prince " have been
expressly formally eliminated by the Swiss arbitrator as subtracted from his decision
by his interpretation of the terms of the protocol passed between the Government
of the French Republic and the Government of Venezuela;
That the interpretation of the treaty of February 24, 1891, given by the said
arbitrator, has placed the limit of the questions which the judge had the power
to resolve, upon which he was authorized to decide, and which alone ought to
make and which has made the object of his judgment;
That by the formal decision which has eliminated the cause and the object of
the actual demand as not being included in the matter submitted to his jurisdiction
the arbitrator [of Berne] has recognized that he had not the right to pass judgment
upon the "jails du prince " and upon all the points by him eliminated from the
procedure as not included in the terms of the protocol;
That in declaring them subtracted from his decision according to the protocol
the arbitrator has passed judgment upon his own jurisdiction and has determined
its limit;
That the doctrine and jurisprudence are for a long time unanimous upon this
incontestable principle that a declaration of incompetency can never produce
the effect of res judicata upon the foundation of the law;
That the " jails du prince " and all the points of the present instance [have]
been expressly eliminated from the procedure by the decision of the arbitrator of
Berne, because they were not included by the terms of the protocol, and consequently
were subtracted from its competence; * * *
That he has eliminated it as not making a part of the matter remitted to his
decision, and that be would not have been able to retain it without violating his
own interpretation of the treaty of February 24, 1891; * * * The most
scrupulous examination of the arbitral decision of December 31, 1896, determines
that the arbitrator has strictly conformed to his interpretation of the protocol,
and that he has not passed judgment by way of the declaration of right and responsibility
upon any of the matters eliminated by him as subtracted from his right
to judge by the terms of the protocol;
That consequently these matters not having been, and not having been able to
be, the object of a decision upon the bases of law one could not pretend that
they are
res judicata ;
That to be convinced of it it is sufficient to refer to the procedure before the
President of the Swiss Confederation to the plea proposed by the defendant party