As a basis for further discussions of this matter with the Chinese
authorities, there is enclosed for the use of the Legation a draft of a
proposed convention between the two Governments. While it is hoped that
the Chinese authorities may be willing to accept this draft in its
entirety, the Department will be glad to give attentive consideration to
any amendments which such authorities may have to offer.
With reference to the three points mentioned in your cable No. 294, you
may, in presenting this draft convention for consideration, make the
following observations:
[Enclosure]
Draft of Proposed Convention Between the United
States and China for the Examination and Adjudication of Claims
of Nationals of Each Country Against the Other*
The United States of America and the Republic of China desiring to
settle and adjust amicably all unsettled claims of nationals of each
country against the Government of the other have, with that object
in view, decided to enter into this Convention and have, therefore,
nominated as their Plenipotentiaries for that purpose:
The President of the United States of America,
The President of the National Government of the Republic of
China,
Who, having communicated their full powers, found to be in good and
due form, have agreed as follows:
Article I
The Commission established under the provisions of this Convention
shall pass upon all claims against China of nationals of the United
States, whether individuals, partnerships, companies, associations,
societies, or corporations, resulting from acts or omissions of the
Chinese Government or of agents, officials, or others acting for the
Chinese Government, and all claims against the United States of
nationals of China, of similar classes and originating under similar
circumstances, except that with respect to contract claims against
the Government of China this classification shall not include
pecuniary obligations of the Chinese Government in respect of claims
on which the Chinese Government shall have adopted a definitive
adjustment program acceptable to the United States.
Article II
The Commission shall determine, in accordance with the principles of
international law, justice and equity, whether awards shall be made
on account of the claims asserted and in cases in which such awards
are made, it shall determine the amounts thereof including the rate
of interest to be allowed on any such adjudicated claim and the time
from which the interest shall begin to run.
Article III
Such Commission shall be constituted as follows: one member shall be
appointed by the President of the United States; one member shall be
appointed by the President of the Chinese Republic; the third
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member, who shall
preside over the Commission, shall be selected by mutual agreement
between the two Governments. If the two Governments shall not agree
within six months from the exchange of ratifications of this
convention in naming the third Commissioner, he shall be designated
by the President of the Permanent Administrative Council of the
Permanent Court of Arbitration at The Hague described in Article
XLIX of the Convention for the pacific settlement of international
disputes concluded at The Hague on October 18, 1907.17 In case of the death, absence or incapacity
of any member of the Commission, or in the event of his omitting or
ceasing to act as such, the same procedure shall be followed for
filling the vacancy as was followed in appointing him.
Each member of the Commission, before entering upon his duties, shall
make and subscribe a solemn declaration stating that he will
carefully and impartially examine and decide according to the best
of his judgment and in accordance with the principles of
international law, justice and equity, all claims presented for
decision, and such declaration shall be entered upon the record of
the proceedings of the Commission.
Article IV
The Commission shall hold a session in China, at a place selected by
it, within six months after all members of the Commission have been
designated unless, by consent of the two Governments, the Commission
shall extend such time until a later date, which date, however,
shall not be later than twelve months after all members of the
Commission shall have been designated. The Commission may, with the
consent of the two Governments, fix the time and place of subsequent
sessions.
Article V
The Commission shall not have jurisdiction to hear and decide any
claims notice of which shall not have been filed with the respective
Governments within one year from the date of the first session of
the Commission.
Article VI
The pleadings to be exchanged in preparing claims for the
consideration of the Commission shall be as follows:
- First. A Memorial containing a
statement of the facts and evidence upon which the claim is
based, a statement of the general principles of
international law, justice and eqiiity upon which claimant
relies and appropriate citations of authorities to support
such principles.
- Second. The Reply of the respondent
Government containing the evidence upon which the defense of
the case is made, a statement of the principles relied upon
in defense of the case and appropriate citations of
authorities supporting such principles. Such Replies shall
be filed with the Commission within a period of sixty days
following the receipt by the respondent Government of
claimant’s Memorial unless such period shall be modified in
individual cases by order of the Commission.
- Third. Legal Briefs to be filed
concurrently by both parties within a period of sixty days
next after the date of the receipt by the claimant of the
Reply of the respondent Government, unless such period shall
be modified in particular cases by order of the
Commission.
With the Briefs of claimants may be submitted any evidence deemed
necessary in response to new issues raised by the respondent
Government in its Reply.
The Commission shall formulate rules for the conduct of the trial of
the cases after the completion of the written pleadings.
Article VII
The Commission shall cause to be kept an accurate record of the
questions and cases submitted for its decision as well as complete
and accurate minutes of all its proceedings. To this end each of the
Governments may appoint a secretary, and these secretaries shall act
together as joint secretaries and shall be subject to the direction
of the Commission.
Article VIII
Claims may be presented to the Commission by the Agents of the
respective Governments or, whenever the demandant Governments shall
so indicate to the Commission and to the respondent Government, by
the claimants themselves.
The two Governments, respectively, may designate such agents and
counsel as they may desire to represent them in the conduct of the
written and oral proceedings.
The Commission shall receive and consider the written memorial and
briefs presented by or on behalf of the respective parties in
support of or in answer to any claims presented.
The decisions of the Commission shall be accepted as final and
binding upon the two Governments. The decision of a majority of the
members of the Commission shall be accepted as the decision of the
Commission.
The proceedings shall be conducted and recorded in the English
language.
[Page 1046]
Article IX
The High Contracting Parties, being desirous of effecting an
equitable settlement of the claims of their respective nationals
thereby affording them just and adequate compensation for their
losses or damages, agree 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 afforded by
the respondent Government must be exhausted as a condition precedent
to the validity or allowance of such claim.
Article X
The assessment of damages by the Commission shall be made in United
States currency and, where the damages have been calculated by the
claimant in some other currency, the Commission shall, in making its
award, convert the amount of the damages into United States currency
at the average rate of exchange prevailing on the day or days on
which the loss or damage occurred.
Article XI
The Commission shall be bound to hear, examine and decide, within two
years from the date of its first meeting, all the claims filed,
except however that this time may be extended by the two Governments
by exchange of notes to that effect. The Commission shall be bound
to decide any claim heard and examined, and to record its decision,
within the six months following the conclusion of the hearing of
such claim.
Article XII
Each Government shall pay its own expenses, including the
compensation of officials and employees appointed by it. All other
expenses which by their nature are a charge on the two Governments,
including the compensation of the neutral Commissioner and such
employees as he may require to assist him in the performance of his
duties, shall be borne in equal proportions by the two
Governments.
Article XIII
This Convention shall be ratified by the respective Contracting
Parties and shall come into force on the date of the exchange of
ratifications.
In faith whereof, the above named
plenipotentiaries have signed the present Convention and have
hereunto affixed their seals.
Done in duplicate at . . . . . this . . . . . day of . . . . . 19 . .
.
seal ————
seal ————
