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SPAIN) 19701
FACTS:
• The Barcelona Traction, Light and Power Company (BLTPC) was incorporated in Toronto, Canada for the
purpose of creating and developing an electric power production and distribution system in Catalonia,Spain.
• It formed a number of concession-holding subsidiary companies, of which some had their registered
offices in Canada and the others in Spain.
• Some years after the first world war, the BLTPC’s share capital came to be very largely held by Belgian
nationals.
• However, the servicing of the BLTPC bonds was suspended on account of the Spanish civil war.
• After that war the Spanish exchange control authorities refused to authorize the transfer of the foreign
currency necessary for the resumption of the servicing of the sterling bonds.
• Eventually, the company was declared bankrupt.
• Belgium then filed an Application with the ICJ against the Spanish government seeking reparation for
damages claimed to have been caused to the Belgian national shareholders of the company.
• Later however, Belgium gave notice of discontinuance of the proceedings, with a view to negotiations
between the representatives of the private interests concerned, and the case was removed from the Court's
General List.
• The negotiations having failed, the Belgian Government submitted to the Court a new Application.
SPAIN’S ARGUMENTS:
I. The Belgian Government gave notice of discontinuance of the proceedings with a view to negotiations
between the representatives of the private interests concerned.
• This was due to the right conferred upon it (Belgium) by Article 69, paragraph 2, of the Rules of
Court. To this, Spain presented no objection.
• This discontinuance precluded Belgium from bringing the proceedings.
• Further, a discontinuance must always be taken as signifying a renunciation of any further right of
action.
• The representatives of the private Belgian interests had made an approach with a view to opening
negotiations and that the representatives of the Spanish interests had laid down as a prior condition
the final withdrawal of the claim.
III. Belgium is estopped from denying the real import of the discontinuance.
• Belgium through its conduct misled Spain about the import of the discontinuance, for which Spain
would not have agreed to, and would not thereby have suffered prejudice.
IV. The proceedings are contrary to the Hispano-Belgian Treaty of Conciliation, Judicial Settlement and
Arbitration, as a result the ICJ lacks jurisdiction.
• Article 17 (4)2 of the Treaty had already lapsed in 1946, and no substitution of the present for the
former Court had been effected. As such, the Treaty had ceased to contain any valid jurisdictional
clause when Spain was admitted to the UN and became a party to the Statue in 1955.
• Further, Article 373 applied only between States which had become parties to the Statute previous to
the dissolution of the Permanent Court.
V. The Belgian government has no legal capacity to protect the Belgian interests on behalf of which it had
submitted its claim.
1 Jessa Alvarez
2 If the other methods of settlement provided for in the Treaty failed, either party could bering any dispute of a legal
nature before the Permanent Court of International Justice.
3 “Whenever a treaty or convention in force provides for reference of a matter . . . to the Permanent Court of International
Justice. the matter shall, as between the parties to the present Statue, be referred to the ICJ.”
• International law does not recognize, in respect of injury caused by a State to the foreign company,
any diplomatic protection of shareholders exercised by a State other than the national State of the
company.
I. DISCONTINUANCE
• Belgium’s notice of discontinuance was confined strictly to the proceeding instituted by the first
Application thus not waiving its right to institute proceedings anew.
• The obligation of establishing that the discontinuance meant something more than the decision to
terminate those proceedings was placed upon Spain.
III. ESTOPPEL
• Alleged misrepresentations not clearly established. Also, the Court did not see what Spain stood to
lose by agreeing to negotiate on the basis of a simple discontinuance.
• If it had not agreed to the discontinuance, the previous proceedings would simply have continues,
whereas negotiations offered a possibility of finally settling the dispute.
• Treaty processes could not be regarded as exhausted so long as the right to bring new proceedings
otherwise existed and until the case had been prosecuted to judgment.
• In 1945 the treaty drafters had intended to preserve as many jurisdictional clauses as possible from
becoming inoperative by reason of the prospective dissolution of the Permanent Court. It was thus
difficult to suppose that they would willingly have contemplated that the nullification of the
jurisdictional clauses whose continuation it was desired to preserve would be brought about by the
very event the effects of which Article 37 was intended to parry.
• The 1927 Treaty being in force and containing a provision for reference to the Permanent Court, and
the parties to the dispute being parties to the Statute, the matter was one to be referred to the
International Court of Justice which was the competent forum.
• Also, States becoming parties to the Statute after the dissolution of the Permanent Court must be
taken to have known that one of the results of their admission would be the reactivation by reason of
Article 37 of certain jurisdictional clauses.