REPORTS OF INTERNATIONAL

ARBITRAL AWARDS

RECUEIL DES SENTENCES

ARBITRALES

William A. Parker (U.S.A.) v. United Mexican States

31 March 1926

VOLUME IV pp. 35-41

NATIONS UNIES - UNITED NATIONS

Copyright (c) 2006
 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 35

diplomatically or otherwise to secure redress for any wrong which it may

heretofore have suffered or may hereafter suffer at the hands of the Govern-
ment of Mexico resulting from a denial of justice, or delay of justice, or any
other violation by Mexico of any right which claimant is entitled to enjoy
under the rules and principles of international law, whether such violation
grows out of this contract or otherwise. I have no hesitation in concurring
in their decision that any provision attempting to bind the claimant in the
manner mentioned in this paragraph would have been void ab initio as
repugnant to the rules and principles of international law.
Article 18, as thus construed, in effect does nothing more than bind the
claimant by contract to observe the general principle of international law
which the parties to this Treaty have expressly recognized in Article V
thereof. Mexico's motive for expressly incorporating this rule as an indis-
pensable provision of the contract, which could be ignored by the claimant
only by subjecting itself to the penalties flowing from its breach of the contract
seems both obvious and reasonable and in harmony with the spirit and not
repugnant to the letter of the rules and principles of international law. The
provision as thus construed should be treated both by claimant and its
Government with the scrupulous and unfaltering respect due any legal
contract.
Accepting as correct my fellow Commissioners' construction of article 18
of the contract, I concur in the disposition made of this case.
Edwin B. PARKER,
Commissioner.

WILLIAM A. PARKER (U.S.A.) v. UNITED MEXICAN STATES.

(March 31, 1926. Pages 35-42.)

NATIONALITY, PRESUMPTION OF—NATIONALITY, EFFECT OF ESPOUSAL OF

CLAIM BY GOVERNMENT. Fact that a Government espouses a claim does
not create a presumption that claimant is of nationality of espousing
Government.
NATIONALITY, PROOF OF. Nationality is a fact, to be proven as any other
fact, to the satisfaction of the tribunal. Evidence held sufficient to
establish nationality.
EVIDENCE BEFORE INTERNATIONAL TRIBUNALS.—RULES OF EVIDENCE.—
ADMISSIBILITY OF EVIDENCE. The tribunal is not bound by municipal
rules of evidence and the greatest liberality will obtain in the admission
of evidence.
EVIDENCE, DUTY OF BOTH PARTIES TO SUBMIT. It is the duty of the two
Agents to co-operate in submitting to the tribunal all relevant facts. Each
Agent should present all the facts that can be reasonably ascertained
by him without regard to what their effect may be.
4
36 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION)

PRIMA FACIE CASE. After claimant has established a prima facie case and
respondent Government has offered no evidence in rebuttal, latter may
not insist that evidence be produced to establish allegations beyond
a reasonable doubt.
BURDEN OF PROOF.—EFFECT OF FAILURE TO PRODUCE MATERIAL EVIDENCE.
No international rules exist relative to a division of the burden of proof
between the parties. Nevertheless, an unexplained failure to produce
material evidence peculiarly within the knowledge of one of the parties
may be taken into account by the tribunal in reaching a decision.
AFFIDAVITS AS EVIDENCE. In a claim for goods sold to the Mexican Govern-
ment, affidavit of claimant held to establish fact of sale and delivery.
QuASI-CoNTRACT OR UNJUST ENRICHMENT AS A BASIS OF CLAIM. LACK
OF AUTHORITY OF OFFICIAL AS A DEFENCE. Where respondent Govern-
ment has received and retained for its benefit goods sold to various
officials by claimant, it is responsible therefor without regard to question
of authority of such officials.
OWNERSHIP OF CLAIM. Where record raises a doubt as to ownership of
claim by claimant, final decision postponed in order that effort may
be made to obtain further evidence on this issue.
Cross-references: Am. J. Int. Law, Vol. 21, 1927, p. 174; Annual Digest.
1925-1926, pp. 240, 243, 414; British Yearbook, Vol. 8, 1927, p. 183.
Comments: Sir John H. Percival, "International Arbitral Tribunals and
the Mexican Claims Commissions," Jour. Compar. Legis. and Int. Law,
3d. ser., Vol. 19, 1937, p. 98 at 101; G. Godfrey Phillips, "The Anglo-
Mexican Special Claims Commission," Law O_. Rev., Vol. 49, 1933. p. 226
at 238.
1. It is alleged in the memorial that William A. Parker, who was born
and has ever remained an American national, was, on and prior to December
8, 1911, until March 27, 1918, engaged in the City of Mexico as a dealer in
typewriters, typewriting and general office supplies and repair of typewriters ;
that on the last named date, he caused a corporation to be formed under the
Mexican law, designating it Compafiia Parker S. A. ; that at sundry times
between December 8, 1911, and March27, 1918, claimant sold and delivered,
or rendered services in the nature of repairs to typewriters to various depart-
ments of the Government of Mexico, at prices which were agreed upon at
the time of delivery or at the time the services were rendered; and that, after
giving to the Government of Mexico all proper credits, there is due claimant
$39,090.05 which remains unpaid. The claim of William A. Parker against
the United Mexican States has, on his behalf, been espoused by the United
States of America and submitted to this Commission for decision. A
Mexican motion to dismiss the claim was overruled by this Commission on
March 2, 1926.

Nationality of the claim

2. The nationality of the claim presented has been challenged on several

grounds. In response to this challenge it is contended that when a Govern-
 MEXICO/U.S.A. (GENJïRAL CLAIMS COMMISSION) 37

ment espouses a claim of one of its nationals against another Government the
private nature of the claim and the private interest of the claimant therein
ceases to exist and the claim becomes a public claim of the espousing Govern-
ment. From this premise the proposition is deduced and pressed that the
espousal of a claim by either Government before this Commission and the
allegation in the memorial of facts as distinguished from conclusions from
which it would follow that the claim possessed the nationality of said Govern-
ment is prima facie evidence that it is impressed with such nationality, subject
to rebuttal by affirmative evidence to the contrary which may be offered by
the opposing Agent. This contention is rejected by the Commission. It is
clear that the Treaty of 1923 does not deal with any government-owned
claims but does deal throughout with private claims of citizens which have
been espoused by their respective Governments. Provision is even made in
certain cases for a restitution of a "property or right * * * to the
claimant" (Article IX of the Trealy). However, the Commission does hold
that the control of the Government, which has espoused and is asserting the
claim before this Commission, is complete. In the exercise of its discretion
it may espouse a claim or decline to do so. It may press a claim before this
Commission or not as it sees fit. Ordinarily a nation will not espouse a claim
on behalf of its national against another nation unless requested so to do by
such national. When, on such request, a claim is espoused, the nation's
absolute right to control it is necessarily exclusive. In exercising such control,
it is governed not only by the interest of the particular claimant but by
the larger interests of the whole people of the nation, and must exercise an
untrammeled discretion in determining when and how the claim will be
presented and pressed, or withdrawn or compromised, and the private owner
will be bound by the action taken. But the private nature of the claim inheres
in it and is not lost or destroyed so as to make it the property of the nation,
although it becomes a national claim in the sense that it is subject to the
absolute control of the nation espousing it.
3. The nationality of the claim is challenged on account of insufficiency
of the proof offered in support of the American nationality of the claimant
(a) because it is only supported by the affidavits of three witnesses, one of
whom is the claimant, the second a brother of claimant and the third a
friend of long standing who could not have positive information with respect
to the fact of his birth; (b) because no birth certificate is presented, nor is its
absence explained; and (c) because two of the affidavits were taken before
an American vice consul in Mexico who is not authorized to administer
oaths under the laws of Mexico where the affidavits were taken. Article III
of the Treaty of 1923 provides that "either Government may offer to the
Commission any documents, affidavits, interrogatories or other evidence
desired in favor of or against any claim * * * in accordance with such
rules of procedure as the Commission shall adopt". Section 1 of Rule VIII
adopted by the Commission in 1924 provides that "The Commission will
receive and consider all written statements, documents, affidavits, interro-
gatories, or other evidence which may be presented to it by the respective
agents * * * in support of or against any claim, and will give such
weight thereto as in its judgment such evidence is entitled in the circum-
stances of the particular case". Under these provisions of the Treaty and the
rules of this Commission, the affidavits of the claimant himself, his brother,
and his friend, are clearly admissible in evidence in this case. Their evidential
value—the weight to be given them—is for this Commission to determine
and in so determining their pecuniary interest and family ties will be taken
38 MExrco/u.s.A. (GENERAL CLAIMS COMMISSION)

into account. But, the contention made that the Government is the sole
claimant before this Commission, hence the personal, business, or other
relations between the private owner of the claim and third persons whose
testimony is here offered can be taken into account only by the claimant
Government in determining whether it will or will not espouse the claim,
but not by this Commission, illustrates the extreme lengths to which the
theory of the national character of the claim may be carried and is rejected.
An unsworn statement may be accepted in evidence, but the weight to be
given it will be determined by the circumstances of the particular case.
Under the statutes of the United States, an American vice consul in a foreign
land to which he is accredited is authorized to take the affidavit of an Ameri-
can citizen, and the mere fact that no such authority is conferred upon him
by the laws of Mexico does not affect either the admissibility or the weight
of the affidavits filed herein. In those jurisdictions where the local laws
require registration of births a duly certified copy of such registration is
evidence of birth in establishing either American or Mexican nationality by
birth ; but such evidence is not exclusive, and while ordinarily it is desirable
that certificates of registrations of birth, which are usually contemporaneous
with the fact of birth, should be produced when practicable in support of a
claim of nationality by birth, or the absence of such certificate explained, it
by no means follows that proof of birth can not be made in any other way.
While the nationality of an individual must be determined by rules prescribed
by municipal law, still the facts to which such rules of municipal law must be
applied in order to determine the fact of nationality must be proven as any
other facts are proven. On the record as presented, the claimant himself,
his brother, and a third witness all testified to facts from which no other
conclusion can be drawn than that claimant was born, and has always
remained, an American national. The Mexican Government offers no
evidence in rebuttal, but relies on the insufficiency of this proof. On the
record as presented, the Commission decides that the claimant was by birth,
and has since remained, an American national.
4. The nationality of the claim was further challenged on behalf of Mexico
on the ground that claimant on March 27, 1918, had conveyed all of his
property, rights, and interests, including the claim here put forward, to the
Compafiia Parker S. A., a Mexican corporation and impressed with Mexican
nationality; and therefore, in the absence of allegations and proof that this
claimant had a substantial and bonafide interest in the said corporation and
in the absence of presenting to this Commission an allotment to the claimant
by said corporation of his proportion of the loss or damage suffered by him
through the corporation, the claim on his behalf does not fall within the
provisions of the Treaty. On the hearing of this case the Commission requested
both Agencies to present further evidence fully disclosing the facts with
respect to this contention, in response to which request each Agent has
presented a telegram. That filed by the Mexican Agent states in effect that
the claimant Parker had conveyed all of his properties including this claim
to the corporation formed by him and bearing his name; while that filed
by the American Agent is to the effect that this claim was never conveyed to
the corporation. This unsatisfactory state of the record will be hereinafter
referred to.
 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 39

Rules of evidence
5. For the future guidance of the respective Agents, the Commission
announces that, however appropriate may be the technical rules of evidence
obtaining in the jurisdiction of either the United States or Mexico as applied
to the conduct of trials in their municipal courts, they have no place in
regulating the admissibility of and in the weighing of evidence before this
international tribunal. There are many reasons why such technical rules
have no application here, among them being that this Commission is without
power to summon witnesses or issue processes for the taking of depositions
with which municipal tribunals are usually clothed. The Commission
expressly decides that municipal restrictive rules of adjective law or of
evidence cannot be here introduced and given effect by clothing them in
such phrases as "universal principles oflaw", or "the general theory of law",
and the like. On the contrary, the greatest liberality will obtain in the admis-
sion of evidence before this Commission with the view of discovering the
whole truth with respect to each claim submitted.
6. As an international tribunal, the Commission denies the existence in
international procedure of rules governing the burden of proof borrowed
from municipal procedure. On the contrary, it holds that it is the duty of
the respective Agencies to cooperate in searching out and presenting to this
tribunal all facts throwing any light on the merits of the claim presented. The
Commission denies the "right"' of the respondent merely to wait in silence in
cases where it is reasonable that it should speak. To illustrate, in this case
the Mexican Agency could much more readily than the American Agency
ascertain who among the men ordering typewriting materials from Parker
and signing the receipts of delivery held official positions at the time they so
ordered and signed, and who did not. On the other hand, the Commission
rejects the contention that evidence put forward by the claimant and not
rebutted by the respondent must necessarily be considered as conclusive. But,
when the claimant has established a prima facie case and the respondent
has offered no evidence in rebuttal the latter may not insist that the former
pile up evidence to establish its allegations beyond a reasonable doubt
without pointing out some reason for doubting. While ordinarily it is
encumbent upon the party who alleges a fact to introduce evidence to
establish it, yet before this Commission this rule does not relieve the respon-
dent from its obligation to lay before the Commission all evidence within
its possession to establish the truth, whatever it may be.
7. For the future guidance of the Agents of both Governments, it is proper
to here point out that the parties before this Commission are sovereign
Nations who are in honor bound to make full disclosures of the facts in each
case so far as such facts are within their knowledge, or can reasonably be
ascertained by them. The Commission, therefore, will confidently rely upon
each Agent to lay before it all of the facts that can reasonably be ascertained
by him concerning each case no matter what their effect may be. In any case
where evidence which would probably influence its decision is peculiarly
within the knowledge of the claimant or of the respondent Government, the
failure to produce it, unexplained, may be taken into account by the Com-
mission in reaching a decision. The absence of international rules relative
to a division of the burden of proof between the parties is especially obvious
in international arbitrations between Governments in their own right, as in
40 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION)
those cases the distinction between a plaintiff and a respondent often is
unknown, and both parties often have to file their pleadings at the same
time. Neither the Hague convention of 1907 for the pacific settlement of
international disputes, to which the United States and Mexico are both
parties, nor the statute and rules of the Permanent Court of International
Justice at The Hague contain any provision as to a burden of proof. On the
contrary, article 75 of the said Hague convention of 1907 affirms the tenet
adopted here by providing that "The parties undertake to supply the tribunal
as fully as they consider possible, with all the information required for
deciding the case".
8. In the present case, the sufficiency of the proof has been challenged (a)
with respect to the sale and delivery by the claimant of typewriters and
supplies to the Mexican Government, which involves (b) the power of the
individual purporting to represent said Government to bind it.
9. The allegations of sales made and deliveries effected to a designated
agent at a designated place on the dates and at the prices specified and the
failure of the Mexican Government to make payment are supported by the
affidavit of the claimant, and the Mexican Agent has offered no evidence in
rebuttal. The facts alleged are peculiarly within the knowledge of the respon-
dent Government, which should make a full disclosure thereof. It is suggested
that due to disturbed conditions or otherwise many of the records of that
Government have been destroyed or misplaced, but it should seem that the
respondent could at least definitely state whether or not the individual to
whom claimant alleges he made deliveries was in its employ at the time and
place designated and the actual or apparent scope of his authority. But
whether the individuals to whom deliveries were made had, or had not,
authority to contract for Mexico, certain it is that if the respondent actually
received and retained for its benefit the property which the claimant testifies
he delivered to it, then it is liable to pay therefor under a tacit or implied
contract even if the individual to whom delivery was made had neither
express nor apparent authority to contract for it.
10. Especially on account of the difficulty of ascertaining whether a person
acting for either Government was entitled to do so, there has been embodied
in Article I of the Treaty of 1923 a provision conferring jurisdiction over
claims originating from acts of officials "or others acting for either Govern-
ment". Reading this provision in connection with that contained in the first
clause of Article I, the Commission is of the opinion that this provision should
be so construed as to include all claims against one Government by the
nationals of the other for losses or damages suffered by such nationals or by
their properties, even when there is no evidence that they originate from acts
of competent authorities, whether officials or others with a limited jurisdic-
tion, but where there is merely evidence that they originate from acts of
others acting for either Government. Where the regularity of a government
administration is doubtful, as the administration of Huerta 1913-1914, the
quantum of proof required might be greater than in the case of an entirely
regular and well-established Government (compare Moore's Arbitrations,
3561). But in this case, the Mexican Agency has contented itself with the
mere denial of authority without offering any evidence in support of such
denial or throwing any light on the actual facts.
11. As pointed out in the foregoing paragraph No. 4, the proof with
respect to the ownership of this claim is meager and unsatisfactory. While the
Mexican Agent has failed to prove to the satisfaction of the Commission that
 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 41

claimant Parker has sold and conveyed this claim to a Mexican corporation
and hence it might be justified in making an award in favor of the United
States on behalf of the claimant, nevertheless the Commission is not satisfied
with the evidence which has been presented to it on this issue, although the
truth may be readily and definitely established.

Interlocutory decision

12. The Commission therefore decides the several questions presented in

accordance with the foregoing opinion, but expressly reserves its decision
with respect to the ownership of this claim and the amount thereof. The
Agents are requested to cooperate in discovering the facts with respect to the
ownership of this claim and the interest, if any, of the claimant Parker or the
Compania Parker S. A. or others therein and file evidence herein on or
before July 1, 1926, fully disclosing such ownership. The Commission suggests
that this evidence may take the form of a stipulation of facts signed by both
Agents. Should it appear that this claim is the property of the Compania
Parker S. A. or other Mexican corporation in which the claimant Parker
has a substantial and bonafide interest, an allotment by such corporation to
the claimant Parker made in accordance with the Treaty provisions may be
filed and will be considered by the Commission.

GEORGE W. HOPKINS (U.S.A.) v. UNITED MEXICAN STATES.

(March 31, 1926, Pages 42-51.)

RESPONSIBILITY FOR ACTS OF D E FACTO GOVERNMENT.—EFFECT OF DECREES

OF NULLITY.—NON-PAYMENT OF MONEY ORDERS. Respondent Govern-
ment held responsible for non-payment of money orders of Huerta
Government on ground they involved acts of an unpersonal character.
Responsibility for acts of Huerta Government of a personal character
will depend on whether at the time in question it had control over a
major portion of the territory and a majority of the people of Mexico.
Decrees of nullity subsequently issued by Carranza Government held
not binding on the tribunal.
NON-RECOGNITION BY CLAIMANT GOVERNMENT AS ESTOPPEL. Claimant
Government held not estopped by its non-recognition of Huerta Govern-
ment to present claim involving acts of such Government.
PRIVILEGED STATUS OF ALIENS UNDER INTERNATIONAL LAW. The fact
that a decision of the tribunal may result in extending to an alien a
privilege not accorded Mexican nationals under Mexican law will
not prevent the tribunal from reaching such decision, if it be dictated
by international law.
Cross-references: Am. J. Int. Law, Vol. 21, 1927, p. 161; Annual Digest,
1925-1926, pp. 229, 232, 417; British Yearbook, Vol. 8, 1927, p. 180.