CO885-(15-16) — Page 582

PUBLIC RECORD OFFICE

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Reference :-

C:O.885

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16 PUBLIC RECORD OFFICE, LONDON

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Court held that there was no principle of international law rendering the Crown liable in such a case. (West Rand Central Gold Mining Company . Rex., L. R. 2 K. B. 391). A copy of the shorthand notes of the case can be supplied if desired.

24. Up till now the German Government have not, in their communications to Sir E. Grey, set out any arguments in favour of their contention that Great Britain has become liable for claims as successor to the South African Republic.

25. I am to ask you to take these papers into your consideration and favour Sir E. Grey with your opinion upon the following questions :-

(1) Whether His Majesty's Government are bound by the terms of the Arbi-

tration Agreement of 1904 with Germany to refer to arbitration a

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difference" within the scope of that Agreement which arose before 1904, and as to which it was clear before 1904 that it could not be settled by diplomatic negotiation: i.e., is the Agreement retrospective in character ?

(2) Whether, assuming that the Agreement of 1904 is not retrospective in character, His Majesty's Government are bound to refer these claims to arbitration under the Agreement in view of the fact that, though they arose out of incidents that took place before 1904, the diplomatic discussion of these claims did not terminate until after 1904 ?

(3) Whether, if His Majesty's Government refuse to submit the claims to arbitration under the Agreement of 1904 on the ground that it is not retrospective in character, Germany would be entitled to claim to refer that point to arbitration under the Agreement?

(4) Whether the position adopted by Great Britain on the question of her non- liability for claims of this character against the extinct Republics is good in law?

(5) Whether her position is strong enough to render it safe under all the cir- cumstances for His Majesty's Government to accept arbitration upon the point?

26. I am at the same time to ask you to favour Sir E. Grey with any general observations on the subject which you may be good enough to offer.

LIST OF PAPERS.

I have, &c.,

F. A. CAMPBELL.

(A.) Anglo-German Arbitration Agreement, July 14, 1904 (Treaty, No. 1170). (B.) Memorandum on Claim of Messrs. Plettner Brothers. (C.) Memorandum on Claim of Herr Kraeber.

(D.) Memorandum on Claim of Hamburg Underwriters.

(E.) Précis of Correspondence with German Embassy respecting Claims of Messrs. Plettner Brothers, Herr Kraeber, and Hamburg Underwriters. (F.) Agreement between Great Britain and the United States of America respecting the North American Fisheries Arbitration, January 27, 1909 (Parliamentary No. 4484).

(G.) Memorandum by Mr. H, Lambert, of the Colonial Office, on the Practice of His Majesty's Government and the Governments of the Transvaal and Orange River Colony with respect to accepting Liability for Obligations of the late Republics, October [? November] 27, 1903 (Confidential No. 8144).

(H.) Opinion of Professor Meili on the Claim of the Netherland South

African Railway Company, January, 1903.

(I.) Opinions of United States Attorneys-General, Vol. XXII

(J.) Law Officers to Colonial Office* :-

November 30, 1900 (C.O., No. 39198).

December 21, 1900 (C.O., No. 41843).

January 12, 1901 (Č.O., No. 1526).

March 13, 1901 (C.O., No. 9231).

November 27, 1901 (C.O., No. 41992).

• Nog. 60, 63, 66, 78, 115, 131, 135, 149, 179, 180, 186, 187, 191, 194 and 218 in Vol. VI.

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February 27, 1902 (C.O., No. 8442), March 14, 1902 (C.O., No. 10538). May 16, 1902 (C.O., No. 19355). February 18, 1903 (C.O., No. 7355) February 18, 1903 (C.O., No. 7355). February 24, 1903 (C.O., No. 7303). May 13, 1903 (C.O., No. 17844). May 29, 1903 (C.O., No. 19863). June 23, 1903 (C.O., No. 23290). July 10, 1903 (C.O., No. 23560). March 24, 1904 (C.Q., No. 10713).

Report.

Although the words "which may arise" in the English text of the Arbitration Agreement of 1904 give rise to some difficulty, we think, on the whole, that the Agree- ment would be held to be retrospective in character. Its object was to introduce, in cases of minor importance, a general system of arbitration between the two countries, and there seems no reason for excluding from its scope differences existing when it was made.

Apart from the language of the Agreement itself, we think that the fact that Great Britain has acquiesced in an interpretation giving a retrospective effect to a similar Agreement would afford a reason for construing the Agreement of 1904 in the same way.

2. Assuming, contrary to our view, that the Agreement is not retrospective, we do not think that a difference arising before the date of the Agreement would come under it merely because the diplomatic negotiations are not concluded at the date of the Agreement.

3. We see nothing in the language of the Agreement to support a suggestion that the interpretation of the Agreement itself is excluded from the obligation to refer and consequently, in the absence of any circumstances pointing to a contrary conclusion, we think that this question must be answered in the affirmative.

We now proceed to deal with the claims now in question.

4 and 5. The claims of Plettner Brothers, and Kraeber, arise out of ordinary commercial transactions by the late Government, and we do not think that His Majesty's Government would be able to maintain a successful defence to these claims before the Arbitration Tribunal.

We think the claim of the Hamburg Underwriters stands on a different footing, and that international law would impose on Great Britain no obligation to satisfy this claim, unless the seizure of the gold were shown to be a lawful act on the part of the Transvaal Government; and, even in that case, we think that His Majesty's Government would have a good defence if they could satisfy the Tribunal that the liability of the Transvaal Government in respect of the seizure was incurred for the purpose of preparing for, or prosecuting, the war against Great Britain.

Law Officers Department,

January 19, 1910.

ANNEX.

[Paper (B).]

Claim of Messrs. Plettner Brothers.

W. S. ROBSON.

S. T. EVANS.

On the 6th April, 1899, Messrs. Plettner, of Halle, received an order from the Government of the South African Republic for some model mining plans, with the object of facilitating the superintendence and control by the Government over mining operations in the Transvaal. The war broke out before they could be finished, and After the consequently they were not delivered to the South African authorities. conclusion of peace the British Mines Department at Johannesburg declined to accept the plans.