The Lena Goldfields Arbitration: The Historical Roots of Three Ideas

International and Comparative Law Quarterly

Volumn 47, Issue 4, 1998, Pages 747-792

  Veeder, V V ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85006625980     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300062527     Document Type: Article

References (209)

1. The original Lena award is filed in the Moscow archives, bearing the signatures of Stutter and Scott (GARF8350/4/54). It includes the appendices and seven pages from paras. 1–4,26 and 27 of the Lena award missing from the English version published by the London Times of 3 Sept. 1930, as later reproduced by Nussbaum's 1950 article (see infra n.24) and summarised by H. Lauterpacht (1929–1930) 5 Annual Digest Cases Nos.1 and 238, pp.3 and 426. It is possible that there was an English original version of the Lena award; but if so it has not been found.
2. See Lauterpacht, Annual Digest Cases Nos.1 and 238 (1935), note at p.428
3. Fitzmaurice (1957) B.Y.I.L. 246, n.2
4. Mann (1959) B.Y.I.L. 34,56, n.2
5. likewise Mann, Studies in International Law (1973), pp.264–265 (see also next footnote).
6. Mann (1967) B.Y.I.L. 1,8. In his 1950 article (infra n.24) Nussbaum mistakenly dismissed the question of the English courts' jurisdiction under the 1889 Act as “too academic to warrant discussion” (see n.27, at p.41). It was potentially most significant, if only because of the Special Case procedure under s.19 of the 1889 Act whereby the English court could require an arbitration tribunal at any stage of the proceedings to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference”.
7. Lauterpacht, B.Y.I.L. (1935), at p 3
8. Jessup, A Modem Law of Nations (1949), p 33
9. McNair (1957) B.Y.I.L, 1, 8–12
10. Fitzmaurice (1957) B.Y.I.L, 203, 246, 249
11. Schwarzenberger International Law (1957), Vol 1, pp.43,146,578–579
12. Mann (1959) B.Y.I.L. 35,55
13. Mann (1967) B.Y.I.L. 1, 7–8
14. Mann, Studies in International Law (1973), pp.229, 238, 264, 475
15. Lew, Applicable Law in International Commercial Arbitration (1978), pp.114,124,506
16. J. Kuusi, The Host State and the Transnational Corporation (1979), p.70
17. Oppetit, “Les etats et l'arbitrage international” (1985) Rev. arb. 493,498
18. Schwebel, International Arbitration: Three Salient Problems (1987), p.138
19. Brownlie, Principles of Public International Law (4th edn; 1990), p.17
20. Jennings and Watts (Eds), Oppenheim 's International Law (9th edn), Vol I, p 39
21. Horacio Grigera Naon, Choice-of-law Problems in International Commercial Arbitration (1992), p.120
22. Dicey and Morris, Conflict of Laws (12 edn, Collins (Ed.)), Vol.2, p.1219 (n.86).
23. (The Lena award also exists as a spurious footnote, possibly humorous, on “frozen law” in Redfern and Hunter's International Commercial A rbitration (2nd edn, 1991), p.104, n.12.)
24. Texaco v. Libyan Arab Republic Arbitration (1979) 53 I.L.R. 389,453
25. McNair, idem, p.7
26. Schwebel, idem, pp.76 et seq.
27. Mann believed Arts.21 and 22 to be the first of such clauses: Mann (1959) B.Y.I.L 34,51. (As to the drafting of the 1933 concession convention, see infra.)
28. See Czamikow v. Roth, Schmidt & Co. [1922] 2 K.B. 478,488, especially Scmtton LJ's dictum: “There must be no Alsatia in England where the King's writ does not run”
29. see also Megaw J in Orion v. Belfort Moots [1962] 2 Lloyd's Rep. 257,264.
30. See DST v. RAKOIL [1987] 2 Lloyd's Rep. 246
31. The Channel Tunnel Case [1993] A.C. 334, 368 under the 1958 New York Arbitration Convention
32. for an arbitration agreement made in England applying “Jewish religious law” see Suleimany v. Suleimany (CA., 13 Mar. 1995 and 30 Jan. 1998, unrep.)
33. see also Kerr (1993) 2 Am. Rev Int.Arb. 377
34. Boyd (1990) 6 Arb.Int 122 and s.46(l)(b) of the Arbitration Act 1996.
35. W. Friedmann, The Changing Structure of International Law (1964), pp.146, 207 (where it is mischaracterised as a mixed claims commission after the First World War)
36. F. Francioni, “Compensation for Nationalisation of Foreign Property: The Borderland between Law and Equity” (1975) 24 I.GL.Q. 255,276
37. C. F. Amerasinghe, “Issues of Compensation for the Takings of Alien Property in the Light of Recent Cases and Practice” (1992) 41 I.C.L.Q. 22,37
38. K. M. Meesen, “Domestic Law Concepts in International Expropriation Law”, in R. Lillich (Ed.), The Valuation of Nationalized Property in International Law (1987), VoL IV pp.157,163
39. K. P. Berger, Formalisierte oder “schleichende” Kodifizie-rung des transnationalen Witschaftsechts (1996), p.223
40. but see C. H. Schreuer, “Unjustified Enrichment in International Law” (1974) 22 AJ.Comp.L. 281, 289 (“This case, although frequently quoted in support of a ‘principle against unjust enrichment’ in international law, has probably contributed nothing but a great deal of confusion.”).
41. B. M. Clagett, “Just Compensation in International Law: The Issues Before the Iran-United States Claims Tribunal”, in Lillich, idem, pp.31, 63
42. W. C. Lieblich, “Determinations by International Tribunals of the Economic Value of Expropriated Enterprises” (1990) 7 J.Int.Arb. 37,41
43. W. Mapp, The Iran-United States Claims Tribunal: The First Ten Years 1981–1991 (1993), pp.166,211.
44. The Lena tribunal did not refer to The Chorzdw Factory Case (1928) PCLI Ser.A No.17.
45. It derived the general principle from the German Civil Code, French, Soviet and Scots law (as considered by the House of Lords in Cantiare San Rocco SA v. Clyde Shipbuilding and Engineering Company Limited [1924] A.C. 226, reversing 1922 S.C. 723
46. LIX S.L.T. 520: see para.23 of the Lena award.
47. In SUE v. Joc Oil (1984) In the FTAC arbitration tribunal in Moscow (Professors Posdnyakov, Bratus and Naryshkina) applied restitution for unjust enrichment under Soviet law without any reference to the Lena award
48. see (1993) XVIII I.CCA. Yearbook 92, 101–105
49. (1990) XV I.C.C.A. Yearbook 384 for the foreign enforcement proceedings under the 1958 New York Arbitration Convention.
50. Schwebel, I.C.C.A. Yearbook, at pp.35–37
51. Schwebel, (1990) I.CCA. Congress Series No.5227 and 316
52. S. J. Toope, Mixed International A rbitration (1990), pp.64,70
53. K. P. Berger, International Economic Arbitration (1993), p.121 (see also pp.530,545)
54. Schwebel, Justice in International Law (1994), pp.200,206.
55. The ability of an arbitration tribunal to rule on its own competence after challenge by a respondent was a principle of public international law recognised in England from 1796 (Lord Loughborough LC in the Jay Treaty cases)
56. but the English common law rule was only fully stated by Devlin J. in Brown v. Cenossenschaft [1954] 1 Q.B. 8.
57. In 1982 Professor Schmitthof argued for a new English statutory rule allowing an “arbitrator” to decide on his own jurisdiction: “The Jurisdiction of the Arbitrator” in Schulz and van den Berg (Eds), The Art of Arbitration (1982), pp.285,293; and see now s30 of the Arbitration Act 1996.
58. TOPCOv. Libya,para l6 of the Preliminary Award (1979) 531.L.R. 389,408–412
59. see also LIAMCO v. Libya (1982) 62 l.L-R. 140,203
60. (1981) 201.L.M. 69
61. Elf Aquitaine Iran v. NIOC (1986) XI I.CCA. Yearbook 97,101, ann.
62. Fouchard Rev.arb. 1984333
63. the Anglo-Iranian Oil Company Case: Memorial of the United Kingdom of 10.x.1951
64. ICJ Pleadings (1952), p.U9, where the UK argued that the unilateral termination of the 1933 concession convention by Iran (for the purpose of nationalisation) could not render ineffective its arbitration clause, whereby compensation payable to the Anglo-Iranian Company would be assessed by the arbitration tribunal and not by the Iranian Parliament (see also infra).
65. See Lauterpacht, ICJ Pleadings (1935), at pp.1,25
66. Mann (1967) B.Y.I.L. 1,25
67. Schwebel, B.Y.I.L., at pp.211 etseq., 161.
68. Judge Schwebel recognised that the auth- ority of the Lena award on the problem of “truncated tribunals” is diminished on the ground that the arbitration clause there expressly authorised two of the three arbitrators to render a decision where the third defaulted; concluding nonetheless that, as a matter of intention, it supported the case that a truncated international tribunal is entitled to proceed and render a valid award (see pp.214, 216); see also Schwebel (1990) B.Y.I.L.
69. (1994), B.Y.I.L., at p.206
70. I.C.C BulL, Nov. 1995, p.19.
71. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) ICJ Pleadings, Oral Arguments, Documents, pp.231 et seq., 356–360 and 189–190,369–379
72. see also the dissenting opinion of Judge Read, I.CJ.Rep. 1950,242
73. see also Schwebel, the dissenting opinion of Judge Read, I.CJ.Rep., at pp.226–235.
74. Sec the Lena award, para.15
75. M. Kazan, Burden of Proof and Related Issues (1996), pp 357–359.
76. See the Lena award, para.31. At English law, there was no power to order contractual interest after the date of the award.
77. In The London Explorer [1972] A.C 1, the House of Lords held that s.20 of the 1950 Act (previously s.11 of the 1934 Act) gave to an English arbitrator power only, to determine whether or not the award should carry interest at the statutory rate for an English judgment debt; but prior to 1934, even this limited power did not exist (Under s.49(3)-(4) of the Arbitration Art 19%, an English arbitrator now has power to award simple or compound interest up to and after the date of the award until payment.)
78. In Commonwealth of Australia v. Cockatoo Dockyard Pry Ltd (1995) 36 N.S.W.L.R. 662, it was held that where one of the parties to the arbitration is a governmental agency, the arbitrator had no power to make procedural orders imposing an obligation of confidentiality concerning its own documents so as to limit the executive's duty to pursue the public interest.
79. This exception was expressly left undecided in the most recent of the English cases on confidentiality: Ali Shipping Corporation v. Shipyard “Trogir” [1998] 1 Lloyd's Rep. 643,655
80. see the UK's Departmental Advisory Committee's 1996 Report on the Arbitration Bill, para.16 (1997) 13 Arb.Int 278, citing the Lena award.
81. A. Nussbaum, “The Arbitration between the Lena Goldfields, Ltd. and the Soviet Government” (1950–1951) Cornell L.Q. 31,42 (appendix).
82. Earlier in Berlin, Nussbaum had contributed a case-note on the Lena award in (1931) 3 Internationales Jahrbuch für Schied-gerichtswesen 429 (of which he was the editor).
83. See also Sutton, Western Technology and Soviet Economic Development 1917 to 1930 (1968), pp.95–100
84. Western Technology and Soviet Economic Development 1930 to 1945 (1971), pp.23–27.
85. Western Technology and Soviet Economic Development 1917 to 1930, pp 38–41
86. E. S. Rashba, “Settlement of Disputes in Commercial Dealings with the Soviet Union” (1945), 45 Col.L.Rev. 530,539–540. Dr Evsey Rashba was then a Special Fellow in Law in Columbia University: he had received an LL.M. degree from Columbia Law School in 1944; and he died in 1973 in Lausanne.
87. The English version of this document was attached to the USSR's diplomatic note dated 4 Dec 1930 to the British Foreign Office, rejecting the UK's note of 1 Nov. 1930 regarding the Lena award (PRO FO 371/14869). Professors Komarov and Boguslavsky in Moscow kindly supplied me with the German version; and a separate English copy was found at the British Library, along with other important materials, by ray research student, Ms Ann Moore-Williams. (For convenience, this document is cited below as “USSR Documents”, with page references to the English version.)
88. Nussbaum, For convenience, this document is cited below as “USSR Documents”, with page references to the English version, at p 38 where Bernstein is described as “a Soviet economist”.
89. Lena Goldfields informed the Foreign Office that a copy of Bernstein's pamphlet had been put before the Lena tribunal prior its award, at the instigation of the USSR: see also the Lena tribunal's opening statement at the main hearing in August 1930 (The Times, 7 Aug. 1930).
90. Bernstein (also transliterated as “Bernshtein”) was a legal specialist on Soviet concessions, the author of Ocherk konaessionogo prava SSR (Outline of Soviet Law on Concessions (1930)
91. (with B. Landau and V. Mashkevich), Pravovyie usloviya koniscssionnoi deyatel'nosti v. SSSR (Legal Conditions of Concession Activity in the USSR) (1931).
92. M. Ya. Pergament (1930) 12 Mezhdunarodnaya zhizn’ 43. (This is not the same work to which Professor Nussbaum refers in his 1950 article, the unseen Pergament commentary in USSR Documents cited by Rashba; Nussbaum's reference to A. J. Pergament also raiscites Rashba's reference, possibly confusing Pergament with his daughter, who was also a law professor in Moscow.)
93. At least formally, these Russian companies still retained a legal existence even in 1928: see AC. der Manufacturen LA. Woronin and Cheshire v. Frederick Huth & Co. (1946) 79 L.l. L.R. 262,265 (on Idelson's expert evidence of Soviet law).
94. See the Lena award, para-29. These Russian companies were Lenskoye, Altai District Mining Limited, Sissert Company Limited and the Pavda Company. The acquisition of their bearer shares outside the USSR, begun in late 1923, was controversial. Many Russian shareholders were living in exile under strained financial circumstances; and much resentment was expressed over share purchases made by Lena Goldfields without first disclosing the negotiations for its concession with the USSR (which would have increased the market value of the shares); and further that shares held as custodian by the Russian and English Bank (controlled by G. O. Benenson and Herbert Guedella, Lena Goldfields' principal financial backers) had been improperly sold to Lena Goldfields without their owners' authority
95. see the article by Prince A. D. Galitzine in Posledniye Novosti, 16 July 1925 (edited in Paris) and Leslie Urquhart's contemporary views of this “shady operation”, summarised in K. H. Kennedy, Mining Tsar The Life and Times of Leslie Urquhart (1986), p.228
96. see also Bernstein for the Soviet view, Mining Tsar The Life and Times of Leslie Urquhart, at p. 12. Lena Goldfields denied at the time any impropriety.
97. The Soviet Russian Decree No.l on Courts of 24 Nov. 1917 allowed private persons to refer to arbitration an existing claim in a cavil case subject to certain formalities, excepting any dispute arising out of family or labour relations ot if it fell within the special jurisdiction of any State court; and on the merits there was a high degree of judicial control over the award. In 1924 the procedure formed part of the RSFSR Civil Procedural Code; but this form of arbitration was never widely used in the USSR; and it was of course quite useless for a foreign company seeking to refer future commercial disputes to binding arbitration: see S. Kucherov, The Organs of Soviet Administration of Justice: Their History and Operation (1970), p.34
98. Rashba, The Organs of Soviet Administration of Justice: Their History and Operation, at pp.536–538
99. Nussbaum, The Organs of Soviet Administration of Justice: Their History and Operation, at pp.36–37.
100. Kelman, “Recht der Sowjet-Union” (1926) I Internationales Jahrbuch fūr Schieds-gerichtwesen 134, in German. (This English translation omits references in the German text)
101. Soviet Russian Decree dated 23 Dec 1920 on the General Economic and Legal Conditions for Concessions; see Degras, Soviet Documents on Foreign Policy (1978) Vol I, p.220–where it is dated 23 Nov. 1920
102. see also Lenin's speech on concessions of 27 Nov. 1920 at p.221.
103. For a similar speech made on 20 Sept 1920, strongly advocating foreign concessions, see Pipes (Ed), The Unknown Lenin (1996), pp.95,112–114.
104. Sec The Times, of 31 July 1925.(As to the probable identity of the Russian lawyer who so advised him, see infra.)
105. See extracts from Rykov's speech to the Main Concessions Committee on 29 Nov. 1929 in Degras, The Times, Vol.11 (1925–1932), at p.404.
106. See Hé1ène Carrère d'Encausse, A History of the Soviet Union 1917–1953, Vol.1 (1983, trans. Ionescu), p.134
107. Lewis, The United States and Foreign Investment Problems (1948), p.150. There is an English translation in the Foreign Office papers at the Public Record Office of an article dated 2 Feb. 1930 from the Moskauer Rundschau, to the debatable effect that “Liquidation of new concession businesses during the past year was carried out with full consent of both parties under conditions agreeable both to the concessionaires and the Soviet Government” (PRO FO 371/14378).
108. [1922] 3 K.B. 532.
109. (1923) 15 LI. L.R. 35 and 74.
110. USSR Documents, p.6, and GARF 8350/4/57.
111. L. Schmidt, Report of the London negotiations between Lena Goldfields and its German creditors of 23–31 Jan. 1930 (Barch.RWM 31.01 20043).
112. Art.89 of the concession agreement provided, in English translation: “The basis of the present agreement on the pan of both parties is one of goodwill, good faith, as well as a desire to interpret its provisions reasonably.”
113. The original German text of the Lena award reads similarly for the equivalent passage in its para.22: “Insoweit wie sich eine Meinungsverschiedenheit über die Auslegung ergibt, halt das Gericht diesen Standpunkt für richtig.”
114. Nussbaum. “Insoweit wie sich eine Meinungsverschiedenheit über die Auslegung ergibt, halt das Gericht diesen Standpunkt für richtig.”, at p.36
115. see also Mann (1959) B.Y.I.L. 34, 56: “It is doubtful whether any such scission which is justifiably criticised by Nussbaum was possible in law. It is still more doubtful whether in the circumstances of the case there was any warrant for it.” The characterisation of claims for unjust enrichment remains difficult
116. see T. W. Bennett, “Choice of Law Rules in Claims of Unjust Enrichment” (1990) 39 I.C.L.Q. 136.
117. I am indebted to Dr Idelson's son and granddaughter, R. F. Idelson and Tamara Idel-son, for unpublished information and documents relating to his life and career. There are two obituaries of Idelson: Professor N. de Mattos Bentwich (1955) 4 I.CL.Q. 27
118. “KSC”, idem, p.28
119. see also Who Was Who (1951–1960). In Russian Commercial Bank v. Comp-toird'Escompte de Mulhouse [1925] A.C. 112, the printed case for the appeal to the House of Lords contains the transcript of Idelson's expert testimony which provides biographical details not available elsewhere; and the record of benchers of Lincoln's Inn Library also contains Idelson's photograph, in full-bottomed wig and owl-like glasses, probably taken in 1947.
120. See A. G. Marshall v. Mary Grinbaumand Bank of England (1921)8 L.R.M 342
121. R. H. Ullmann, The Anglo-Soviet Accord, L.R.M, p.453. (Idelson was paid 100 guineas by the Bank of England's solicitors, Freshfields & Leese: Freshfields' private letter dated 18 Aug. 1921.)
122. In 1931 Idelson advised the company with Wilfred Greene KC that the existing concession was legally binding on the Persian government; and in Jan. 1933 Idelson attended the meetings in Geneva between the British Foreign Secretary (Sir John Simon) and representatives of the Persian government aimed at an amicable settlement of the dispute, with Dr Edward Benes as the rapporteur (the Czech Republic's Foreign Secretary): see R. W. Fer-rier. The History of the British Petroleum Company, Vol.1, p.619
123. J. H. Bamberg, The History of the British Petroleum Company, Vol.2. pp 39 etseq. Idelson had earlier advised BP on its interests in Venezuela in 1927: idem, pp.144 et seq.
124. See Anglo-Iranian Case Pleadings (1952), The History of the British Petroleum Company This part of the memorial of 10 Oct. 1951 was prepared by Sir Hersch Lauterpacht KC.
125. His first draft did not contain any reference to the Lena award: see E. Lauterpacht (Ed.), International Law (being the Collected Papers of Hersch Lauterpacht QC) (1970), Vol.4, p.23.
126. Prior to Iran's nationalisation in May 1951, there was a joint opinion by Idelson and Lauterpacht, undated but probably from Mar. 1951, on the operation of the 1933 concession convention's arbitration clause, instructed by Linklater & Paines for BP (PRO F0371/91526). The company invoked arbitration on 8 May 1951, appointing Lord Radcliffe as its arbitrator, but Iran failed to appoint its arbitrator and eventually the President and Vice-President of the ICJ declined to perform the task of appointing the sole arbitrator assigned to the President of the PCIJ under Art22(d) of the concession convention. The arbitration clause was thereby rendered ineffective, as Idelson and Lauterpacht had warned in their joint opinion; see also Mann (1967) B.Y.I.L. 1,20–24.
127. [1953] 1 W.L.R. 246.
128. Shreter, Systema promyshlennogo prava SSSR (System of Industrial Law of the USSR) (1924), pp.80–81.
129. H.L. Hansard, 18 Jan. 1996, col.778.
130. E.g. see Artl2 of the New 1998 LCIA Rules “Majority Power to Continue Proceedings”; and Art. 12(5) of the New 1998 ICC Rules allowing the ICC Court to order proceedings to continue.
131. See The Times, 3 June 1930.
132. Stutzer had visited the USSR in early 1929 to inspect brown coal deposits in Moscow and Tula: (see his report at Zeitschr.Deutsch.Geol.Ges. 82 (1930) 8,5,453–462)
133. but I have found nothing to justify the USSR's attack on Stutter's independence or impartiality. Lena Goldfields' German creditors had also investigated the six professors on the USSR's list; and after private enquiries, they canvassed Lena Goldfields for Stutter's appointment after hearing the mayor of Freiberg describe him as “a patriotic, well-read and energetic gentleman” (Kandler-Schmidt report of 8 Apr. 1930: Barch. RWM 31.01 20043).
134. See the contemporary press reports during Apr. and May 1930 in Pravda and The Times and M. M. Glazunov, “The Lena Goldfields Case” Byelleten’ verkhonogo suda CCCP, 1984,No.2,42.
135. For the extraordinary Russian career of Leslie Urquhart (1875–1933), particularly his failed negotiations with Soviet Russia for compensation or restitution in the form of a concession, see T. S. Martin, “The Urquhart Concession and Anglo-Soviet Relations 1921–1922∗’ (1972) 20 Jahrbucher für Geschichte Osteuropas 551
136. Kennedy, Jahrbucher für Geschichte Osteuropas
137. G. N. Blainey, Mines in the Spinifex (1960)
138. see Mines in the Spinifex
139. As Pravda itself confirmed in its reports of the Lena trial. The Shakhty show-trial had opened on 18 May 1928, over which A. Y. Vyshinsky presided, against 5 German engineers and 48 Soviet specialists. Owing to strong diplomatic protests from the German government, the Germans were either acquitted or released without further imprisonment see K. Rosen-baum, “The German Involvement in the Shakhty Trial” (1962) XXI Russian Review 238 (Ohio State University Press).
140. In Sept. 1911 and Oct 1913 Herbert Hoover travelled to Kyshtim and the Ridder Mines, staving with the Urquharts:see G.H. Nash, The Life of Herbert Hoover (1988), Vol.1, pp.426–437, VoL 2 pp.257–275.
141. PRO FO 371/14868. Sir Gerald Fitzmaurice (1901–1982), the Foreign Office's Third Legal Adviser (1929–1939), later judge of the ICJ (1960–1973) and judge of the European Court of Human Rights (1974–1980).
142. USSR Documents, p 34; GARF 8350/4/7.
143. USSR Documents, pp.22,35; GARF 8350/4/7.
144. See The Times, 3 June 1930.
145. USSR Documents, p.29 and GARF 8350/4/57
146. see also The Tunes, 10 May 1930.
147. USSR Documents, p.3l and GARF 8350/4/57.
148. GARF 5446/55/1970.
149. USSR Documents, p.23 and GARF 8350/4/57.
150. See The Times, 10 May 1930
151. but see the Lena award, para.ll.
152. An account of this second hearing is recited in The Times, 20 June 1930
153. see also the Lena award, para.14. (Until recently, it was not unusual for private arbitrations to sit in the Law Courts.)
154. See The Times, 30 June 1930.
155. This was alleged by Dr Idelson, at the main hearing on 6 Aug. 1930 (see The Tunes, 7 Aug. 1930).
156. The Harriman concession agreement of 12 June 1925 was “amicably” dissolved in June 1928. after Harriman's abortive negotiations with Trotsky in Moscow in 1927: see Lewis, The Tunes. at pp. 179–180
157. W. Averell Harriman, America and Russia in a Changing World–A Half Century of Personal Observation (1971), pp.2–7.
158. Chlenov's publications include “Arbitration Clauses in Contracts with Foreign Firms”. Vneshnyaya Torgoviya 1935. No.13.3
159. he was a friend of the writer I. G. Erenburg in whose memoirs he appears: see Men, Years–Life (1961, trans. Bostock and Kapp). Vol.1. pp.41–42, and Vol.4, pp. 14.100; and possibly fatally, he was also a Moscow schoolfriend of N. I. Bukharin.
160. Rasstrel'nye Spiski, (List of Executions), Vol.1 (1934–1940) (1993).
161. which also con- tains the NKVD photograph of Chlenov on his arrest. (I am indebted to Professor Robert Conquest for this reference.) It lists 670 victims whose remains were buried in the Donskoi Cemetery between 1934 and 1940, including Soviet officials involved in the Lena arbitration: G. M. Arkus (1896–1936), deputy chairman of the USSR State Bank
162. Y. L. Piatakov (1890–1937). Others include Isaac Babel
163. V. E. Meyerhold, Mikhail Koltsov arid perversely the executioner's own henchman
164. Yezhov himself: see Shentalinsky, Arrested Voices (1993), p.70.
165. Nussbaum, Arrested Voices, at pp 37–38
166. see also the works listed Arrested Voices
167. See Mustill and Boyd. Commercial Arbitration (2nd edn, 1989), pp.215,321
168. see also the historical controvery over Arts. 13 and 16 of the old ICC Rules on “Terms of Reference” in Craig, Park and Paulsson, ICC Arbitration (2nd edn, 1990), pp.251–268, esp. p754. (The New 1998 ICC Rules amend these provisions and largely avoid this controversy: see Art.19.)
169. USSR Documents, pp.29,30 and GARF 8350/4/57.
170. See (1930) 12 Mezhdunarodnaia rhizn’ 43,47.
171. (Art.90 did not allow the USSR unilaterally to select “an accountant, economist or lawyer”.) In USSR Documents, p.60, Perga-ment first acknowledged that neither party had the right or power to annul the concession agreement of its own accord; but second, returning to the Latin maxim. Extra compromissum arbiter nihil facere potest, he applied it to the Lena tribunal.
172. USSR Documents, p.54.
173. PO FO371/15605, p.10. (English law did not fully recognise the doctrine of separability until Harbour v. Kansa [1993] Q.B. 701
174. newly interpreting Hey man v. Darwins [1942] A.C 356
175. see the 1994 DAC Consultation Document [1994] Arb.Int 189,225–228 and s.7 of the English Arbitration Act 1996.)
176. Pergament.Arb.Int.al pp.49–50.
177. In his 1950 article Nussbaum (Arb.Int) accepted that an arbitration tribunal's opinion regarding its competence was not necessarily binding upon the parties and was usually subject to re-examination by a State court
178. but he concluded (mistakenly) that no such court remedy was available in the Lena arbitration: see idem, pp.40–41
179. Arb.Int
180. Art.l (3) of FTAC's 1975 Rules of Procedure (applied in Joc Oil, Arb.Int n.l 2) provided in English translation: “The question of competence of FTAC in a particular case shall be decided by the tribunal deciding the case”
181. see also S. N. Lebedev. “USSR”, Int. Handbook on Comm. Arb. p. 15.
182. S. N. Lebedev, Mezhdunarodnoye kommercheskii arbitraih (International Commercial Arbitration: The Competence of Arbitrators and the Agreement of the Parties) (1988), pp. 13–14.
183. A. Yakovlev identifies a MAC award of 1933 (The San Giuseppe”) as the first decision under Soviet law on Kompetenz-Kompetenz: see “International Commercial Arbitration Proceedings and Russian Courts” (1996) 13 J.Int.Arb. 37, 42
184. Stalin's letter of 24 Aug. 1930, Letter 60 in Lib, Naumov and Khlevniuk (Eds), Stalin's Utters to Molotov 1925–1936 (1995).
185. Pravda of 9 Sept. 1930, signed by D. Zaslavsky. The Lena commission had recommended on 6 Sept. 1930: “Koltsov or some other sketch writer should comment on the decision of the arbitration tribunal in some kind of sketch written in absolutely mocking style. The ‘verdict’ and the whole affair should provide sufficient material. The text should be approved personally by Kamenev.” Zaslavsky was a lampoonist, later infamous for attacking Gorky towards the end of his life: see Shentalinsky, J.Int.Arb., at p.267.
186. (Koltsov was a well-known satirical writer on current affairs, later a journalist and friend of Ernest Hemingway during the Spanish Civil War, see J.Int.Arb. n.96).
187. New Statesman editorial of 6 Sept. 1930, written just before Kingsley Martin's arrival as editor. A copy of this article in the Foreign Office files bears L. Collier's annotation “That is precisely what it did do on our information” (PRO FO 371/14868). See also W. P. and Zelda Coates, A History of Anglo-Soviet Relations (1943), pp.467–469.
188. See H. J. Hilton Jr., “Commercial Arbitration in the Treaties And Agreements of the USSR” (1945) 307 US Department of State Bull 891
189. reprinted in G. Ginsburgs, The Soviet Union and International Co-operation in Legal Matters (1988).
190. See also Nussbaum, “Treaties on Commercial Arbitration” (1942) 56 H.L.R. 219, 220
191. Rashba, H.L.R., at p.541.
192. See particularly the Government statements to the House of Commons on 13 Mar. 1933 (Baldwin), 29 Jan. 1934 (Colville) and 4 June 1934 (Colville): HC Hansard, cols.1595, 39
193. The Times, 5 and 13 June 1934.
194. The Times, 9 and 15 Nov. and 5 Dec. 1940
195. see also Coates and Coates, The Times, at pp.644,648.
196. G. E. Vilkov, Natsionalizatsiya i mezhdunarodnoye pravo (Nationalisation and International Law) (1962), p.122
197. see also the government's statement (Whitlock) to the House of Commons on the second reading of the Foreign Compensation Bill, HC Hansard, 7 Nov. 1968, cols.1096 et seq.
198. See Weilamann v. Chase Manhattan Bank 192 N.Y.S.2d 469
199. ann. (1960) 54 AJ.I.L. 410
200. Vilkov, idem, pp.123–124.
201. The 1968 UK-USSR Agreement concerning the Settlement of Mutual Financial and Property Claims (Cmnd 3517). Art4 provided that the UK government “undertakes further, that, from the assets indicated in Article 2, it will make a settlement, along with other claims, of claims by the holders of unredeemed Notes issued by the Government of the Union of Socialist Republics to the British joint stock companies, the Tetiuhe Mining Corporation and Lena Goldfields Ltd of London, irrespective of the nationality of such holders”. Art2 referred (inter alia) to gold bullion still held by the Bank of England on deposit from the former central banks of Latvia, Lithuania and Estonia. The UK's disposal of gold belonging neither to the USSR nor the UK was politically and legally controversial during the passage through Parliament of the Foreign Compensation Act 1968; see D. A. Loeber, “The Problem of the Baltic Gold in Great Britain”, in Internationales Recht und Diplomatic (1968), p.75. (Tetiuhe was also a Siberian mining concession prematurely terminated in 1932 against USSR State notes.)
202. R.J. Misiuanas and R. Taagepera, The Baltic Stoles– Years of Dependence 1940–1980 (1983), p.17.
203. The Tmes, 23 Jan. 1992
204. see also HC Hansard, 23 Jan. 1992, VoL 202, col.488 where the Prime Minister (John Major) expressed his delight that his Conservative Government had been able “to correct that smear of dishonour” created by the Labour Government in 1967–1968.
205. Long before 1976, amongst other obstacles, Lena Goldfields' claims to enforce the award or settlement were hopelessly tune-barred under both English law and Soviet law. As to the limitation periods applicable to a foreign award, see S. N. Lebedev “How Long Does a Foreign Award Stay Enforceable?”, in The Art of Arbitration (Liber Amicorum Pieter Sanders) (1982), p.213
206. under English law see International Bulk Shipping and Services Ltd v. Minerals and Metals Trading [1996] 2 Lloyd's Rep. 474. 121.
207. See K. Hotér, “Arbitration in Moscow” (1987) 3 Arb.Int 119,158. 12Z This English translation is made from the original Russian text of Art.90 of the concession agreement of 30 Apr. 1925 (to which para, letters have been added for ease of reference).
208. This text of the concession agreement, as amended to 9 June 1927, was published in Moscow in 1928; and a copy was appended to the Lena award (see Arb.Int n.l). An earlier version of 1925 fa available at the US Library of Congress and from IDC Microfiche.
209. In minor respects, this translation differs from the incomplete translations in USSR Documents and the English version of the Lena award published in The Times, 3 Sept 1930. It retains however the phrase “arbitration court” which in Russian could now be understood as “arbitration tribunal”.