Tinoco Arbitration

REPORTS OF INTERNATIONAL
ARBITRAL AWARDS
RECUEIL DES SENTENCES
ARBITRALES
Aguilar-Amory and Royal Bank of Canada claims (Great Britain v. Costa Rica)
18 October 1923
VOLUME I pp. 369-399
NATIONS UNIES - UNITED NATIONS

Copyright (c) 2006
X.
AGUILAR-AMORY AND ROYAL BANK OF CANADA CLAIMS .
PARTIES : Great Britain versus Costa Rica.
ARBITRATION CONVENTION : January 12, 1922.
ARBITRATOR : William H. Taft (U.S.A.).
AWARD : Washington, October 18, 1923.
Arbitration Convention January 12, 1922.Ratification March 7,

1923.Award October 18, 1923.Effect of non-recognition of a government.Liability for acts of previous governments.What constitutes a
government in international law.Exhaustion of local remedies.Advance
waiver of diplomatic protection.Estoppel.Relations between municipal
law and international law.Whether money paid for bona fide government
use or personally to an usurpator.Settlement ex aquo et bom.Nationality
of claim.
For bibliography, index and tables, see Volume III.

24
371
Convention between the British Government and the Government

of Costa Rica for the submission to arbitration of certain claims
against the government of Costa Rica, signed at San Jos de
Costa Rica, January 12, 1922.
His MAJESTY THE KING OF THE UNITED KINGDOM OF GREAT BRITAIN AND
IRELAND AND OF THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR
OF INDIA; AND
HIS EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF COSTA RICA;
Whereas there has arisen between their respective Governments a difference as to the application of Law No. 41 of August 21, 1920, to two
cases in which British Corporations are interested, to wit: to the concession
granted by the Aguilar-Amory Contract of the 25 th June, 1918, of which
the "Central Costa Rica Petroleum Company" is owner, and the delivery
to the Royal Bank of Canada of 998,000 colones in notes of 1,000 colones
each in payment of a cheque drawn by the Tinoco Administration against
the International Bank of Costa Rica, which cheque was deposited in
the Government's account with the said Royal Bank; and
Whereas the claims and contentions of the two Governments in regard
to these points have been set forth, on the part of His Britannic Majesty's
Government, in the Notes which His Britannic Majesty's Minister addressed
to the Costa Rican Ministry for Foreign Affairs on the 13th July and the
8th November, 1921, and in antecedent correspondence; and, on ihe
part of the Costa Rican Government, in their Notes in reply relative to
the present diplomatic controversy and especially in the Congressional
Resolution of the 13th December, of that same year; and
Whereas both Governments are actuated by a lively desire to reach,
within that spirit of cordial friendship which has always inspired their
relations, a speedy and just settlement of the pending question; and as
the medium of arbitration, indicated by His Britannic Majesty's Government, has been accepted by the Government of Costa Rica, after previous
consultation with the. Constitutional Congress;
Have therefore determined to conclude a Treaty of Arbitration, and
have appointed for that purpose the following Plenipotentiaries, that
is to say:
His MAJESTY THE KING OF THE UNITED KINGDOM OF GREAT BRITAIN AND
IRELAND AND OF THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR
OF INDIA:
Andrew Percy BENNETT, Esquire, Companion of the Most Distinguished Order of St. Michael and St. George, His Majesty's Envoy
Extraordinary and Minister Plenipotentiary in the Republic of
Costa Rica; and
His EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF COSTA RICA:
Senor Licentiate Alejandro ALVARADO QUIRS, Secretary of State
for Foreign Affairs;
372
GREAT BRITAIN/COSTA RICA (TINOCO CASE)
Who, after having communicated to each other their respective full

powers, found in good and due form, have agreed upon the following
articles :
Article 1.
A single Arbitrator, appointed by mutual agreement, taking into consideration existing Agreements, the principles of Public and International
Law, and in view of the allegations, documents and evidence which each
of the two Governments may present to him, shall decide:
(1) Whether the demand of His Britannic Majesty's Government
is well founded;
(2) Or whether on the contrary the Government of Costa Rica
is justified in not recognising the said claims by maintaining the
Declaration of Nullity contained in Law 41.
The Arbitrator shall have the necessary jurisdiction to establish procedure
and to dictate without any restriction whatsoever other resolutions which
may arise as a consequence of the question formulated, and which, in
conformity with his judgment, may be necessary or expedient to fulfil
in a just and honourable manner the purposes of this Convention; and
he shall determine what one party may owe the other for the expenses
of the claim. The Arbitrator shall also decide with regard to the payment
of the expenses of the arbitration.
Article 2.
Both Governments solemnly undertake to conform to the decision of

the Arbitrator, whatever it may be; and to comply with it without delay,
as final and beyond appeal, pledging to this effect the national honour;
and they shall take such measures as may be requisite to carry out the
arbitral Award. The Government of Costa Rica undertake to obtain
the adhesion of the International Bank of Costa Rica in so far as 'it may
be necessary for the execution of the Award, and undertake to faithfully
comply with the resolutions of the Arbitrator in as far as they may affect
the official Credit Institution in question.
Article 3.
The High Contracting Parties agree in nominating as Arbitrator the

Chief Justice of the United States of America, and in the event of the
said Chief Justice declining to accept the office, another Jurist of international repute, whose Award shall be a guarantee to both parties of a
true conception of justice and right, shall be chosen; and to this end it
will be sufficient for the two Governments to sign a supplementary
document, or to agree on the nomination by means of a simple exchange
of Notes.
Article 4.
Immediately after the exchange of the ratifications of this Convention,

both Governments, jointly or separately, shall solicit the acceptance of
the Arbitrator. The Governments will consider that they have been
formally notified of such acceptance by a communication to this effect
from the Arbitrator to His Britannic Majesty's Embassy and the Costa
Rican Legation in Washington.
GREAT BRITAIN/ COSTA RIGA ( T I N O C O CASE)
373
Within ninety calendar days following such notification, each of the

parties will present their respective allegations and evidence.
On the expiry of the above-mentioned ninety days for the presentation
of allegations and evidence, a further period of sixty days shall commence,
within which the parties may, if they so desire, present counter-arguments
or rectifications.
On the expiry of this second period, a further period of ninety days
shall commence, within which the Arbitrator shall pronounce his Award.
Similar rules of procedure shall obtain in the event of having to proceed,
as above mentioned, to the appointment of an Arbitrator who is not the
one chosen by mutual accord under this Agreement in so far as such
rules of procedure may be applicable.
Article 5.
The Costa Rican Government undertake to give without delay or any

cost whatever the certifications of documents, laws or acts existing in
the Public Offices, which may be requested through the Ministry for
Foreign Affairs by the Government of His Britannic Majesty, by the
Royal Bank of Canada or by the: Central Costa Rica Petroleum Company;
and such certifications shall be held as authentic in the arbitration. Those
documents which may appear published in "La Gaceta", the Official
Journal of the Costa Rican Government, shall be held without question
as authentic and admissible.
Article 6.
To be valid the present Convention must receive the approval of the

Constitutional Congress of Costa Rica and of the Government of His
Britannic Majesty; and as soon as this approval shall have been obtained,
the Convention shall be ratified and the ratifications exchanged in this
Capital or in Washington.
In witness whereof, we, the above-named Plenipotentiaries, have signed
and sealed the present Convention in duplicate, both in the Spanish and
English language.
Done in the City of San Jos de Costa Rica, the twelfth day of January,
one thousand nine hundred and twenty-two.
(Ii. S.) A. P E R C Y BENNETT.
(L.
S.)
ALEJANDRO ALVARADO QUIRS.
PROTOCOL OF RATIFICATION.
The Undersigned, duly authorised by their respective Governments,

have met together for the purpose of exchanging the ratifications of the
Convention between His Majesly the King of the United Kingdom of
Great Britain and Ireland and of the British Dominions beyond the Seas,
Emperor of India, and His Excellency the President of the Republic of
Costa Rica, signed at San Jos on 12th day of January, 1922, for the
submission to arbitration of certain claims made by the Central Costa
Rica Petroleum Company and the Royal Bank of Canada against the
Government of Costa Rica.
374
The respective ratifications have been carefully compared and have

been found to be conformable to each other, except that the ratification
of His Excellency the President of Costa Rica contains the following
reservation :
"Y por cuanto el Congreso Constitucional, por Decreto No. 6 del 23
de mayo de este afio, aprob el preinserto Tratado con la siguiente
adicin :
"Articula 2.La aprobacin dada al Tratado en el articulo anterior
se hace en la inteligencia de qua nada en el Tratado se opone a que Costa
Rica haga valer todos los medios de defensa enumerados en el acuerdo
del Congreso del 13 de diciembre de 1921, a que se hace referenda en el
prembulo del Tratado, y a que el Arbitra pueda fundamentar su fallo
en todos o algunos de dichos medios de defensa," cuya traduccin al
ingls dice asi:
"Article 2nd. The approval given in the preceding article to the
Treaty is done with the understanding that nothing in the Treaty would
prevent that Costa Rica shall bring into play all means of defence enumerated in the Congressional Resolution on the 13th December, 1921, to
which reference is made in the preamble of the Treaty, and that the
Arbitrator shall base his Award in all or any of the said means of defence,"
articulo que ha sido expresamente aceptado por el Gobierno de Su
Majestad Britnica, segn nota No. 86/13/22 de la respectiva Legacin,
fechada en Panama el 15 de setiembre proximo pasado."
As the above English translation furnished by the Costa Rican Government is liable to misinterpretation, and in order that the matter may be
placed upon due record, it is understood that the English equivalent of
this reservation is as follows:
"The approval of the Convention contained in the preceding article
has been given on the "understanding that nothing in the Convention
prevents Costa Rica from developing all the defences enumerated in the
Resolution of Congress of the 13th December, 1921, and referred to in the
preamble of the Convention ; nor the Arbitrator from basing his decision
upon all or any of the said defences."
It is further understood that the Spanish text of the above reservation,
which was expressly accepted by His Britannic Majesty's Government
in a note addressed to the Minister for Foreign Affairs of Costa Rica by
His Majesty's Charg d'Affaires at Panama on the 15th September, 1922
(No. 86/13/22), is alone authoritative for the purposes of the present
arbitration.
The said exchange of ratifications has accordingly taken place this
day in the usual form.
In witness whereof the Undersigned have signed the present certificate
and have affixed thereto their seals.
Done at Washington, this seventh day of March 1923.
(L. S.)
A. C. GEDDES.
(L. S.) J. RAFAEL OREAMUNO.
GREAT BRITAIN/COSTA RICA ( T I N O C O CASE)
375
ARBITRATION BETWEEN GREAT BRITAIN AND COSTA RICA.

OPINION AND AWARD OF WILLIAM H. TAFT, SOLE ARBITRATOR.
Washington, B.C., October 18, 1923.
This is a proceeding under a treaty of arbitration between Great Britain

and Costa Rica. The ratifications of the treaty were exchanged on March
7, 1923. The scope of the questions to be decided is to be gathered from
two recitals and Article I of the treaty. The two recitals are as follows:
Whereas there has arisen between their respective governments a
difference as to the application of Law No. 41 of the 21st of August,
1920, to two cases in which British corporations are interested, to
wit : to the concession granted by the Aguilar-Amory contract of the
25th June, 1918, of which the "Central Costa Rica Petroleum Company" is owner, and the (delivery to the Royal Bank of Canada of
998,000 colones in notes of 1,000 colones each in payment of a cheque
drawn by the Tinoco administration against the Banco Internacional
de Costa Rica, which cheque was deposited in the government's
account with the said Royal Bank; and
Whereas the claims and contentions of the two governments in
regard to these points have been set forth, on the part of His Britannic
Majesty's Government, in the notes which His Britannic Majesty's
Minister addressed to the Costa Rican Ministry for Foreign Affairs
on the 13th of July and the 8th November, 1921, and in antecedent
correspondence; and, on the part of the Costa Rican Government,
in their notes in reply relative to the present diplomatic controversy
and especially in the Congressional resolution of the 13th December
of that same year.
Article I. A single arbitrator, appointed by mutual agreement,
taking into consideration existing agreements, the principles of public
and international law, and in view of the allegations, documents and
evidence which each of the two governments may present to him,
shall decide:
1. Whether the demand of His Britannic Majesty's Government
is well founded ;
2. Or whether on the contrary the Government of Costa Rica is
justified in not recognizing the said claims by maintaining the declaration of nullity contained in Law 41.
The arbitrator shall have the necessary jurisdiction to establish
procedure and to dictate without any restriction whatsoever other
resolutions which may arise as a consequence of the question formulated, and which, in conformity with his judgment, may be necessary or expedient to fulfil in a just and honorable manner the purposes
of this convention; and he shall determine what one party may owe
the other for the expenses of the claim. The arbitrator shall also
decide with regard to the payment of the expenses of the arbitration.
A reservation in respect to the foregoing provision was made by the
Congress of Costa Rica after the signing of the treaty, and this was
accepted by Great Britain, as fallows:
376
Article 2. The approval given in the preceding article to the

treaty is done with the understanding that nothing in the treaty
would prevent that Costa Rica shall bring into play all means of
defense enumerated in the Congressional resolution on the 13th of
December, 1921, to which reference is made in the preamble of the
treaty and that the arbitrator shall base his award in all or any of
the said means of defense.
In January, 1917, the Government of Costa Rica, under President
Alfredo Gonzalez, was overthrown by Frederico Tinoco, the Secretary
of War. Gonzalez fled. Tinoco assumed power, called an election,
and established a new constitution in June, 1917. His government continued until August, 1919, when Tinoco retired, and left the country.
His government fell in September following. After a provisional government under one Barquero, the old constitution was restored and elections
held under it. The restored government is a signatory to this treaty
of arbitration.
On the 22nd of August, 1922, the Constitutional Congress of the restored
Costa Rican Government passed a law known as Law of Nullities No. 41.
It invalidated all contracts between the executive power and private
persons, made with or without approval of the legislative power between
January 27, 1917, and September 2, 1919, covering the period of the
Tinoco government. It also nullified the legislative decree No. 12 of the
Tinoco government, dated June 28, 1919, authorizing the issue of the
fifteen million colones currency notes. The colon is a Costa Rican gold
coin or standard nominally equal to forty-six and one-half cents of an
American dollar, but it is uncoined and the exchange value of the paper
colon actually in circulation is much less. The Nullities Law also invalidated the legislative decree of the Tinoco government of July 8, 1919,
authorizing the circulation of notes of the nomination of 1,000 colones,
and annulled all transactions with s"uch colones bills between holders and
the state, directly or indirectly, by means of negotiation or contract, if
thereby the holders received value as if they were ordinary bills of
current issue.
The claim of Great Britain is that the Royal Bank of Canada and the
Central Costa Rica Petroleum Company are Britain corporations whose
shares are owned by British subjects; that the Banco Internacional of
Costa Rica and the Government of Costa Rica are both indebted to the
Royal Bank in the sum of 998,000 colones, evidenced by 998 one thousand
colones bills held by the Bank; that the Central Costa Rica Petroleum
Company owns, by due assignment, a grant by the Tinoco government
in 1918 of the right to explore for an exploit oil deposits in Costa Rica,
and that both the indebtedness and the concession have been annulled
without right by the Law of Nullities and should be excepted from its
operation. She asks an award that she is entitled on behalf of her subjects
to have the claim of the bank paid, and the concession recognized and
given effect by the Costa Rican Government.
The Government of Costa Rica denies its liability for the acts or obligations of the Tinoco government and maintains that the Law of Nullities
was a legitimate exercise of its legislative governing power. It further
denies the validity of such claims on the merits, unaffected by the Law
of Nullities.
377
It is convenient to consider first the general objections to both claims

of Great Britain, urged by Costa Rica, and then if such general objections
cannot prevail, to consider the merits of each claim and Costa Rica's
special defenses to it.
Coming now to the general issues applicable to both claims, Great
Britain contends, first, that the Tinoco government was the only government of Costa Rica de facto and de jure for two years and nine months;
that during that time there is no other government disputing its sovereignty,
that it was in peaceful administration of the whole country, with the
acquiescence of its people.
Second, that the succeeding government could not by legislative decree
avoid responsibility for acts of that government affecting British subjects,
or appropriate or confiscate rights and property by that government
except in violation of international law; that the act of Nullities is as to
British interests, therefore itself a nullity, and is to be disregarded, with
the consequence that the contracts validly made with the Tinoco government must be performed by the present Costa Rican Government, and
that the property which has been invaded or the rights nullified must
be restored.
To these contentions the Costa Rican Government answers: First, that
the Tinoco government was not a de facto or de jure government according
to the rules of international law. This raises an issue of fact.
Second, that the contracts and obligations of the Tinoco government,
set up by Great Britain on behalf of its subjects, are void, and do not
create a legal obligation, because the government of Tinoco and its acts
were in violation of the constitution of Costa Rica of 1871.
Third, that Great Britain is stopped by the fact that it did not recognize
the Tinoco government during its incumbency, to claim on behalf of its
subjects that Tinoco's was a government which could confer rights binding
on its successor.
Fourth, that the subjects of Great Britain, whose claims are here in
controversy, were either by contract or the law of Costa Rica bound to
pursue their remedies before the courts of Costa Rica and. not to seek
diplomatic interference on the part of their home government.
Dr. John Bassett Moore, now a member of the Permanent Court of
International Justice, in his Digest of International Law, Volume I, p. 249,
announces the general principle which has had such universal acquiescence
as to become well settled international law:
Changes in the government or the internal policy of a state do not
as a rule affect its position in international law. A monarchy may
be transformed into a republic or a republic into a monarchy; absolute
principles may be substituted for constitutional, or the reverse; but,
though the government changes, the nation remains, with rights and
obligations unimpaired. . . .
The principle of the continuity of states has important results.
The state is bound by engagements entered into by governments
that have ceased to exist; the restored government is generally liable
for the acts of the usurper. The governments of Louis XVIII and
Louis Philippe so far as practicable indemnified the citizens of foreign
states for losses caused by the government of Napoleon; and the
King of the Two Cicilies made compensation to citizens of the
United States for the wrongful acts of Murat.
378
Again Dr. Moore says:

The origin and organization of government are questions generally
of internal discussion and decision. Foreign powers deal with the
existing de facto government, when sufficiently established to give
reasonable assurance of its permanence, and of the acquiescence of
those who constitute the state in its ability to maintain itself, and
discharge its internal duties,and its external obligations.
The same principle is announced in Professor Borchard's new work on
The Diplomatic Protection of Citizens Abroad :
Considering the characteristics and attributes of the de facto government, a general government de facto having completely taken the
place of the regularly constituted authorities in the state binds the
nation. So far as its international obligations are concerned, it
represents the state. It succeeds to the debts of the regular government it has displaced and transmits its own obligations to succeeding
titular governments. Its loans and contracts bind the state and
the state is responsible for the governmental acts of the de facto
authorities. In general its treaties are valid obligations of the state.
It may alienate the national territory and the judgments of its courts
are admitted to be effective after its authority has ceased. An
exception to these rules has occasionally been noted in the practice
of some of the states of Latin America, which declare null and void
the acts of a usurping de facto intermediary government, when the
regular government it has displaced succeeds in restoring its control.
Nevertheless, acts validly undertaken in the name of the state and
having an international character cannot lightly be repudiated and
foreign governments generally insist on their binding force. The
legality or constitutional legitimacy of a de facto government is without
importance internationally so far as the matter of representing the
state is concerned. (Bluntschli, Sects. 44, 45, 120; Holtzendorff,
II, Sect. 21; Pradier-Fodr, Sect. 134, 139; Rivier, II, 131, 440;
Rougier, 481 ; France v. Chile, Franco Chilean Arbitration, Lausanne,
p. 220.)
The same views are expressed by Chancellor Kent (1 Comm. 14th d.,
p. 25), by Mr. Wheaton (Wheaton's International Law, Philippson's 5th
Eng. d., p. 37), and by Mr. Hall (International Law, 6th d., J. B. Attay,
1909, pp. 20, 21), and by Dr. Woolsey in his Introduction to the Study of
International Law (ed. 1873, pp. 32, 52, 53, 171, 172).
First, what are the facts to be gathered from the documents and evidence
submitted by the two parties as to the de facto character of the Tinoco
government?
In January, 1917, Frederico A. Tinoco was Secretary of War under
Alfredo Gonzalez, the then President of Costa Rica. On the ground that
Gonzalez was seeking reelection as President in violation of a constitutional
limitation, Tinoco used the army and navy to seize the government, assume
the provisional headship of the Republic and become Commander-inChief of the army. Gonzalez took refuge in the American Legation,
thence escaping to the United States. Tinoco constituted a provisional
government at once and summoned the people to an election for deputies
to a constituent assembly on the first of May, 1917. At the same time
he directed an election to take place for the Presidency and himself became
379
a candidate. An election was held. Some 61,000 votes were cast for
Tinoco and 259 for another candidate. Tinoco then was inaugurated
as the President to administer his powers under the former constitution
until the creation of a new one. A new constitution was adopted June 8,
1917, supplanting the constitution of 1871. For a full two years Tinoco
and the legislative assembly under him peaceably administered the affairs
of the Government of Costa Rica, and there was no disorder of a revolutionary character during that interval. No other government of any kind
asserted power in the country. The courts sat, Congress legislated, and
the government was duly administered. Its power was fully established
and peaceably exercised. The people seemed to have accepted Tinoco's
government with great good will when it came in, and to have welcomed
the change. Even the committee of the existing government, which
formulated and published a report on May 29, 1920, directing the indictment of President Tinoco for the crime of military revolution and declaring
the acts of his regime as null and void and without legal value, used this
language :
Without having a constitution to establish the office of President
and determine his functions, and even to indicate the period for which
he was to be elected, the election was held by the sole will of the
person who was violently exercising the executive power. And as
was natural, the election fell to the same Mr. Tinoco, and, sad to
relate, the country applauded! The act, therefore, of decreeing
that said election should be held under such conditions is contrary
to the most rudimentary principles of political law.
The quotation is only important to show the fact of the then acquiescence
of the people in the result. Though Tinoco came in with popular approval,
the result of his two years administration of the law was to rouse opposition to him. Conspiracies outside of the country were projected to
organize a force to attack him. But this did not result in any substantial
conflict or even a nominal provisional government on the soil until considerably more than two years after the inauguration of his government,
and did not result in the establishment of any other real government until
September of that year, he having renounced his Presidency in August
preceding, on the score of his ill health, and withdrawn to Europe. The
truth is that throughout the record as made by the case and counter case,
there is no substantial evidence that Tinoco was not in actual and peaceable
administration without resistance or conflict or contest by anyone until
a few months before the time when he retired and resigned.
Speaking of the resumption of the present government, this passage
occurs in the argument on behalf of Costa Rica:
Powerful forces in Costa Rica were opposed to Tinoco from the
outset, but his overthrow by ballot or unarmed opposition was impossible and it was equally impossible to organize armed opposition
against him in Costa Rican territory.
It is true that action of the supporters of those seeking to restore the
former government was somewhat delayed by the influence of the United
States with Gonzalez and his friends against armed action, on the ground
that military disturbances in Central America during the World War
would be prejudicial to the interests of the Allied Powers. It is not
important, however, what were the causes that enabled Tinoco to carry
380
GREAT BRITAIN/COSTA
RICA (TINOCO CASE)
on his government effectively and peaceably. The question is, must his
government be considered a link in the continuity of the Government
of Costa Rica? I must hold that from the evidence that the Tinoco
government was an actual sovereign government.
But it is urged that many leading Powers refused to recognize the
Tinoco government, and that recognition by other nations is the chief
and best evidence of the birth, existence and continuity of succession
of a government. Undoubtedly recognition by other Powers is an important evidential factor in establishing proof of the existence of a government in the society of nations. What are the facts as to this? The
Tinoco government was recognized by Bolivia on May 17, 1917; by
Argentina on May 22, 1917; by Chile on May 22, 1917; by Haiti on May 22,
1917; by Guatemala on May 28, 1917; by Switzerland on June 1, 1917;
by Germany on June 10, 1917; by Denmark on June 18, 1917; by Spain '
on June 18, 1917; by Mexico on July 1, 1917; by Holland on July 11,
1917; by the Vatican on June 9, 1917; by Colombia on August 9, 1917;
by Austria on August 10, 1917; by Portugal on August 14, 1917; by El
Salvador on September 12, 1917; by Roumania on November 15, 1917;
by Brazil on November 28, 1917; by Peru on December 15, 1917; and
by Ecuador on April 23, 1917.
What were the circumstances as to the other nations?
The United States, on February 9, 1917. two weeks after Tinoco had
assumed power, took this action:
The Government of the United States has viewed the recent overthrow of the established government in Costa Rica with the gravest
concern and considers that illegal acts of this character tend to
disturb the peace of Central America and to disrupt the unity of the
American continent. In view of its policy in regard to the assumption
of power through illegal methods, clearly enunciated by it on several
occasions during the past four years, the Government of the United
States desires to set forth in an emphatic and distinct manner its
present position in regard to the actual situation in Costa Rica which
is that it will not give recognition or support to any government
which may be established unless it is clearly proven that it is elected
by legal and constitutional means.
And again on February 24, 1917:
In order that citizens of the United States may have definite information as to the position of this Government in regard to any financial
aid which they may give to, or any business transaction which they
may have with those persons who overthrew the constitutional Government of Costa Rica by an act of armed rebellion, the Government
of the United States desires to advise them that it will not consider
any claims which may in the future arise from such dealings, worthy
of its diplomatic support.
The Department of State issued the following in April, 1918:
The Department of State has received reports to the effect that
those citizens of Costa Rica now exercising the functions of government in the Republic of Costa Rica have been led to believe by those
persons who are acting as their agents, that the Government of the
United States was considering granting recognition to them as constituting the Government of Costa Rica.
381
In order to correct any such impression which is absolutely erroneous, the Government of the United States desires to state clearly
and emphatically that it has not altered the attitude which it has
assumed in regard to the granting of recognition to the above mentioned citizens of Costa Rica and which was conveyed to them in
February, 1917, and further that this attitude will not be altered in
the future.
Probably because of the leadership of the United States in respect to a
matter of this kind, her then Allies in the war, Great Britain, France and
Italy, declined to recognize the Tinoco government. Costa Rica was,
therefore, not permitted to sign the Treaty of Peace at Versailles, although
the Tinoco government had declared war against Germany.
The merits of the policy of the United States in this non-recognition
it is not for the arbitrator to discuss, for the reason that in his consideration
of this case, he is necessarily controlled by principles of international law,
and however justified as a national policy non-recognition on such a
ground may be, it certainly has not been acquiesced in by all the nations
of the world, which is a condition precedent to considering it as a postulate
of international law.
The non-recognition by other nations of a government claiming to be
a national personality, is usually appropriate evidence that it has not
attained the independence and control entitling it by international law
to be classed as such. But when recognition vel non of a government is
by such nations determined by inquiry, not into its de facto sovereignty
and complete governmental control, but into its illegitimacy or irregularity
of origin, their non-recognition loses something of evidential weight on
the issue with which those applying the rules of international law are
alone concerned. What is true of the non-recognition of the United
States in its bearing upon the existence of a de facto government under
Tinoco for thirty months is probably in a measure true of the non-recognition by her Allies in the European War. Such non-recognition for any
reason, however, cannot outweigh the evidence disclosed by this record
before me as to the de facto character of Tinoco's government, according
to the standard set by international law.
Second. It is ably and earnestly argued on behalf of Costa Rica that the
Tinoco government cannot be considered a de facto government, because
it was not established and maintained in accord with the constitution
of Costa Rica of 1871. To hold that a government which establishes
itself and maintains a peaceful administration, with the acquiescence
of the people for a substantial period of time, does not become a de facto
government unless it conforms to a previous constitution would be to
hold that within the rules of international law a revolution contrary to
the fundamental law of the existing government cannot establish a new
government. This cannot be, and is not, true. The change by revolution upsets the rule of the authorities in power under the then existing
fundamental law, and sets aside the fundamental law in so far as the
change of rule makes it necessary. To speak of a revolution creating a
de facto government, which conforms to the limitations of the old constitution is to use a contradiction in terms. The same government continues internationally, but not the internal law of its being. The issue
is not whether the new government assumes power or conducts its administration under constitutional limitations established by- the people during
382
the incumbency of the government it has overthrown. The question is,

has it really established itself in such a way that all within its influence
recognize its control, and that there is no opposing force assuming to be
a government in its place? Is it discharging its functions as a government
usually does, respected within its own jurisdiction?
Reference is further made, on behalf of Costa Rica, to the Treaty of
Washington, December 20, 1907, entered into by the Republics of Central
America, in which it was agreed that
The governments of the contracting parties will not recognize any
one who rises to power in any of the five republics in consequence
of a coup d'tat or by a revolution against a recognized government
until the representatives of the people by free elections have reorganized the country in constitutional form.
Such a treaty could not affect the rights of subjects of a government
not a signatory thereto, or amend or change the rules of international
law in the matter of de facto governments. Their action under the treaty
could not be of more weight in determining the existence of a de facto
government under Tinoco than the policy of the United States, already
considered. Moreover, it should be noted that all the signatories to the
treaty but Nicaragua manifested their conviction that the treaty requirement had been met in the case of the Tinoco government, by recognizing
it after the adoption of the constitution of 1917 and the election of Tinoco.
Third. It is further objected by Costa Rica that Great Britain by her
failure to recognize the Tinoco government is estopped now to urge claims
of her subjects dependent upon the acts and contracts of the Tinoco
government. The evidential weight of such non-recognition against the
claim of its de facto character I have already considered and admitted.
The contention here goes further and precludes a government which did
not recognize a de facty government from appearing in an international
tribunal in behalf of its nationals to claim any rights based on the acts
of such government.
To sustain this view a great number of decisions in English and American
courts are cited to the point that a municipal court cannot, in litigation
before it, recognize or assume the de facto character of a foreign government which the executive department of foreign affairs of the government
of which the court is a branch has not recognized. This is clearly true.
It is for the executive to decide questions of foreign policy and not courts.
It would be most unseemly to have a conflict of opinion in respect to
foreign relations of a nation between its department charged with the
conduct of its foreign affairs and its judicial branch. But such cases have
no bearing on the point before us. Here the executive of Great Britain
takes the position that the Tinoco government which it did not recognize,
was nevertheless a de facto government that could create rights in British
subjects which it now seeks to protect. Of course, as already emphasized,
its failure to recognize the de facto government can be used against it as
evidence to disprove the character it now attributes to that government,
but this does not bar it from changing its position. Should a case arise
in one of its own courts after it has changed its position, doubtless that
court would feel it incumbent upon it to note the change in its further
rulings.
Precedents in American arbitrations are cited to show that an estoppel
like the one urged does arise. They are Schultz's case (Moore, Inter-
383
national Arbitrations, Vol. 3, 2973), Janson's case (ibidem, 2902), and

Jarvis's case (Ralston, Venezuela Arbitrations, 150). In the opinions of
these cases delivered by American commissioners, there are expressions
sustaining the view that the bar of an estoppel exists, but an examination
shows that no authorities are cited and no arguments are made in support
of the view. Moreover, the array of facts in the cases was conclusive
against the existence of a de facto government, and the expressions were
unnecessary to the conclusion. In Schultz's case the claim of an American
citizen was against the Juarez government for loss of goods by fire between
the lines of battle waged by Miramon's forces against Juarez's government.
The claim against Juarez's government was plainly not sustainable, first
because it occurred in the train of war and, second, because the Miramon
forces never had in fact constituted a de facto government. The Janson
case before the same tribunal was for the value of an American bark
seized by Miramon's soldiers to escape out of the country from the victorious army of Juarez. The commissioner devotes many pages to a
rsum of evidence to show that neither Miramon nor Maximilian, with
whom he acted, had ever had a de facto government; that Juarez was always
in control of the greater part of Mexico and always resisting. The truth
is that the language of the decisions should be more properly construed to
emphasize the great and overwhelming weight to be given to the recognition of Juarez by the United States and its non-recognition of Miramon as
evidence against the de facto character of the government of the latter, than
to uphold the theory of a bar by estoppel.
In Jarvis's case the facts were that Paez, a Venezuelan citizen, was an
insurgent against the existing government of Venezuela in 1849, and enlisted
in his conspiracy Jarvis, the American claimant, who furnished him a ship
and arms and ammunition. This was a crime against the United States
on Jarvis's part, because the United States was on terms of amity with
Venezuela. The expedition failed. In 1861, thirteen years later, however,
when Paez was in Venezuela, a sudden outbreak placed him in power.
In 1863, just as he was about to retire with the collapse of his government,
he issued bonds to Jarvis to repay him for his outlay in the unsuccessful
insurrection of 1849, twelve years before. The commissioner held that
there was no lawful consideration for the bonds. Certainly this was a
righteous conclusion. It was a personal obligation of Paez, if it was an
obligation at all. It was not a debt of Venezuela. It was invalid and
unlawful because of its vicious origin, both by the laws of the United States
and the laws of Venezuela. The commissioner also by way of additional
but unnecessary support to his conclusion said the United States was
estopped to urge the claim.
These are, so far as I am advised, the only authorities to be found either
in decided cases or in text writers applying the principles of estoppel to bar
a nation seeking to protect its nationals in their rights against the successor
of a de facto government.
I do not understand the arguments on which an equitable estoppel in
such case can rest. The failure to recognize the de facto government did
not lead the succeeding government to change its position in any way upon
the faith of it. Non-recognition may have aided the succeeding government to come into power; but subsequent presentation of claims based on
the de facto existence of the previous government and its dealings does not
work an injury to the succeeding government in the nature of a fraud or
breach of faith. An equitable estoppel to prove the truth must rest on
384
previous conduct of the person to be estopped, which has led the person
claiming the estoppel into a position in which the truth will injure him.
There is no such case here.
There are other estoppels recognized in municipal law than those which
rest on equitable considerations. They are based on public policy. It
may be urged that it would be in the interest of the stability of governments
and the orderly adjustment of international relations, and so a proper rule
of international law, that a government in recognizing or refusing to
recognize a government claiming admission to the society of nations should
thereafter be held to an attitude consistent with its deliberate conclusion
on this issue. Arguments for and against such a rule occur to me; but it
suffices to say that I have not been cited to text writers of authority or to
decisions of significance indicating a general acquiescence of nations in
such a rule. Without this, it cannot be applied here as a principle of
international law.
It is urged that the subjects of Great Britain knew of the policy of their
home government in refusing to recognize the Tinoco rgime and cannot
now rely on protection by Great Britain. This is a question solely between
the home government and its subjects. That government may take the
course which the United States has done and refuse to use any diplomatic
offices to promote such claims and thus to leave its nationals to depend
upon the sense of justice of the existing Costa Rican Government, as they
were warned in advance would be its policy, or it may change its conclusion
as to the de facto existence of the Tinoco government and offer its subjects
the protection of its diplomatic intervention. It is entirely a question
between the claimants and their own government. It should be noted
that Great Britain issued no such warning to its subjects as did the United
States to its citizens in this matter.
The fourth point made on behalf of Costa Rica against the claims here
pressed is that both claimants are bound either by their own contractual
obligation entered into with the Government of Costa Rica, or by the laws
of Costa Rica, to which they subscribed, not to present their claims by way
of diplomatic intervention of their home government, but to submit their
claims to the courts of Costa Rica. This is in effect a plea in abatement to
the jurisdiction of the arbitrator, which, under the terms of the arbitration,
Costa Rica has the right to advance.
So far as the Amory concession, and the claim of the Petroleum Company
is concerned, the plea turns on two provisions of the concession. One is
on Article XIX, as follows:
The present contract shall elapse, and the government may so
declare by an Executive- Order, in the following cases only:
6. If the contractor has recourse to diplomatic action in connection
with any dispute or litigation as to the rights and privileges granted
by this contract, but the forfeiture of this concession shall not be pronounced by the government without having given to the concessionaire
the opportunity to defend himself nor without having submitted the
point to arbitration.
Article XXI:
Any dispute arising between the parties in respect to the interpretation or execution of this contract which cannot be compromised, shall
be submitted to arbitration and decided according to the laws of
385
Costa Rica. If the parties fail to agree on one arbitrator, each shall
appoint one, and the two arbitrators in case of disagreement shall
choose a third as umpire.
These two limitations do not seem to include within their scope such a
question as the power of the Tinoco government to grant the concession,
or the obligation of the present government of Costa Rica to recognize it.
They cover the interpretation and construction of the contract rather than
the fundamental question of its existence.
With respect to the Royal Bank, the facts are somewhat different. The
bank obtained the right to establish a branch or agency in Costa Rica
under the following order:
DEPARTMENT OF TREASURY AND COMMERCE.
No. 437.
SAN JOSE, August 7,
1915.
Whereas it is recorded in the documents previously inserted that the Royal

Bank of Canada, a society domiciled in Montreal, Province of Quebec, in the
Dominion of Canada, is organized in accordance with the laws of that country;
that said society has resolved to establish a branch or agency in Costa Rica,
and that it has appointed in that country a representative clothed with sufficient
power to manage the affairs of the branch or agency.
The President of the Republic
Resolves :
That it is in order to enter in the Mercantile Register the constitutive deed of
the Royal Bank of Canada, as well as the additional one relating to the branch
in this country, under the understanding that, in accordance with the provisions
contained in Articles 11 and 12 of the Banking Law, the branch or agency shall
not invoke its status as a foreign corporation, with respect to matters or operations
of the bank, which in all cases be decided by the law courts of Costa Rica, and
in entire subjection to the laws of that Republic.
Let it be published.
GONZALEZ.
Assistant Secretary of State in Charge of the
Treasury and Commerce.
JORGE GUARDIA.
Articles 11 and 12 referred to in this banking law are as follows:

Article 11. Companies organized abroad for the establishment of
banks of any kind within the Republic shall subject themselves for
effective organization to the provisions of this law and the banks, as
well as their shareholders, shall be impressed with the character of
Costa Rica citizenship to ihe extent of being denied the power to
invoke the laws of any foreign country in matters relating to the affairs
or operations of such banks; such matters must be decided by the
tribunals of Costa Rica and in entire conformity with the laws of the
Republic.
Article 12. Banks established in the country as branches of foreign
banks shall be equally subject to the provisions of the preceding article.
It is doubtful whether these restrictions upon the bank by their terms go
so far as to forbid its appeal for diplomatic intervention in protection of its
rights. They show clearly that the powers conferred by the government
25
386
of its origin cannot enlarge its banking powers in Costa Rica and that its
rights are to be decided by Costa Rican courts and according to Costa Rican
law. But to carry this to a denial of the right to a diplomatic intervention
by its own government to avoid legislative nullification of its rights without
a hearing would be going far.
It has been held in a number of important arbitrations, and by several
foreign secretaries, that such restrictions are not binding upon a home
government and will not prevent it from exercising its diplomatic functions
to protect its nationals against the annulment of the rights secured to them
by the laws of the country in force when the obligations arose. Wharton's
Digest, II, p. 612, Sect. 230; Moore's Digest, III, 307; Ralston's .Report,
I, p. 819; Am. Foreign Relations, 1887, p. 99; American Foreign Relations, 1902,
pp. 870, 871; Moore, Intern. Arbitrations, 1644; Ralston, Intern. Arbitral Law,
p. 48; Borchard, Diplomatic Protection of Citizens Abroad, 293.
However this may be, these restrictions upon each claimant would seem
to be inapplicable to a case like the present where is involved the obligation
of a restored government for the acts or contracts of a usurping government.
The courts of the restored government are bound to administer the law of
the restored government under its constitution and their decisions are necessarily affected by the limitations of that instrument. This may prevent the
courts from giving full effect to international law that may be at variance
with the municipal law which under the restored constitution the national
courts have to administer. It is obvious that the obligations of a restored
government for the acts of the usurping de facto government it succeeds
cannot, from the international standpoint, be prejudiced by a constitution
which, though restored to life, is for purposes of this discussion, exactly as if
it were new legislation which was not in force when the obligations arose.
Nor is it an answer to this, to suggest that in the case here under consideration, the restored constitution may be construed not to prevent the
Costa Rican courts from giving effect to the' principles of international law,
already stated. It is enough that the restored constitution is the controlling
factor in the exercise of any jurisdiction to be exercised by those courts, and
that other nations may object to a tribunal which must give consideration
to legislation enacted after the fact, in reaching its decision.
This is not an exceptional instance of an essential difference between the
scope and effect of a decision by the highest tribunal of a country and of an
international tribunal. The Constitution of the United States makes the
Constitution, laws passed in pursuance thereof, and treaties of the United
States the supreme law of the land. Under that provision, a treaty may
repeal a statute, and a statute may repeal a treaty. The Supreme Court
cannot under the Constitution recognize and enforce rights accruing to aliens
under a treaty which Congress has repealed by statute. In an international
tribunal, however, the unilateral repeal of a treaty by a statute would not
affect the rights arising under it and its judgment would necessarily give
effect to the treaty and hold the statute repealing it of no effect.
Another and conclusive answer to this plea in abatement to the jurisdiction here is found in the fact that the provisional government of Barquero,
succeeding that of Tinoco, which subsequently and peaceably and in due
course merged into the existing government, took away the power of the
then courts of Costa Rica to hear the suit of the Royal Bank already instituted, or to entertain any suit involving rights against the government,
decreed a moratorium for a year of the claims of this character, and forbade
the issue of any mesne or final execution upon the property of the Banco
387
Internacional or of the state in satisfaction of such claims. It is true that

all these acts of the provisional government were repudiated by a legislative
decree of the present government in August of 1920, some ten months after
its accession. This was at a time when the Law of Nullities had already
passed Congress and was only delayed by the veto of the President. "In a
few days it was made into law by its passage over his veto. The Law of
Nullities was a legislative decree without any hearing declaring invalid the
rights which the bank claimed to have against the Banco Internacional and
against the government. It was merely a continuation of the legislative
policy begun in different form by the provisional government for defeating
these claims.
It is true that the bank might then have continued its litigation and have
contested the validity of the Law of Nullities before the courts of Costa
Rica, but it would have had to do so before a court that was elected by the
same Congress which passed the Law of Nullities, the previous court having
been reorganized by the Congress. Without in any way implying a criticism of the new court, or a doubt as to its spirit of judicial inquiry, I think
the previous course of the provisional government, the enactment of the
Law of Nullities, and the constitutional limitation upon the scope of the
decision of Costa Rican courts, already referred to, so changed the situation
with respect to the rights of the bank when it began its suit that the restored
government must be held to have waived the enforcement of any limitation
upon the right of the bank to invoke the protection of its home government
under the circumstances.
The same views must apply in favor of the concessionaire under the Amory
concession if the restrictions of its concession are to be construed as limiting;
the power of the concessionaire to invoke diplomatic intervention without a
resort to the courts.
A consideration of the issues before us, therefore, recurs to the merits of
the two claims. The decision of them must be governed by the answer to
the question whether the claims would have been good against the Tinoco
government as a government, unaffected by the Law of Nullities, and
unaffected by the Costa Rican Constitution of 1871.
It is suggested on behalf of Great Britain that the scope of the arbitration
does not involve an examination by the arbitrator into the merits of the
claims after the general principles applying to the Law of Nullities and its
validity shall have been decided. I cannot yield to this suggestion. The
recitals of the treaty show that the demand and claims of Great Britain and
of Costa Rica in this arbitration aie to be determined from the "notes which
His Britannic Majesty's Minister addressed to the Costa Rican Ministry
for Foreign Affairs on July 13 and November 8, 1921, and in antecedent
correspondence, and on the part of the Costa Rican Government, in their
notes in reply relative to the present diplomatic controversy, and especially
in the Congressional resolution of the 13th of December of that same year".
An examination of these references leaves no doubt that not only was the
validity of the Law of Nullities in defeating the claim of the bank and the
Amory concession involved, but also the merits of the claim of the bank and
of the concession, assuming the Law of Nullities to be itself a nullity.
Coming now to the merits of the Royal Bank claim, the facts, so far as I
can gather them from the exhibits, and evidence produced by both parties,
are:
The Banco Internacional de Costa Rica was established as a bank to be
conducted by private persons under the immediate supervision of the execu-
388
tive power, and on October 14, 1914, was given authority to issue notes to
the amount of four million colones, in accordance with the banking law of
Costa Rica and the amendments thereto. The issue was to be secured by
Treasury bonds. This law continued in force under the Tinoco rgime.
On June 29, 1919, the Chamber of Deputies by law provided that the Banco
Internacional should be authorized to make a new issue of notes of 15,000,000
colones. The notes were to be given the same legal tender quality as
attached to the bills then in circulation under the law of 1914. Of the sum
thus to be issued, ten million colones were to be applied to the interests of
the government for its public administration. The remaining amount was
to be distributed, 2,500,000 colones to increase the emergency fund and the
borrowing capacity of the Banco Internacional de Costa Rica for private
loans, 1,500.000 colones to be devoted to rural loans to future farmers,
veterans of the army, and 1,000,000 colones to be invested in construction
and repair of national roads. All revenues from postal, telegraph and
stamped paper sources were pledged to the state to secure this issue. After
June, 1920, the principal administration of state revenues was to pay to the
bank the total amount derived from the revenues, and the bank was then to
devote this amount, taking up and withdrawing from circulation all bills
authorized by the present law and to destroy them. Article VI provided
that the Government should, after the proclamation of the law, make a
deposit in American gold or drafts of the United States in the Banco Internacional. to be operated in the form of a revolving credit, to be used exclusively by the bank to sell bills of exchange to merchants and private persons
at a fixed maximum rate of exchange. The executive power was authorized
to make rules and regulations necessary for the proper enforcement of the
law. On July 10, 1919, the law just described was amended by providing
that the bills to be issued should bear a clear statement of their value by
means of letters and numbers, together with a statement of the obligation
of the bank to pay them at sight to bearer in national gold money, and they
were to be issued in the denominations which included a denomination of
1,000 colones. By an order of the President, and because of the absence
of the usual forms of colones bills, it was directed on July 10, 1919, that there
might be a provisional issue to the value of 2,500,000 colones of "Bonos
sobre especiesfiscales"of the value of 1,000 colones each. These had been
bonds prepared for issue but which had not been placed in circulation, and
it was directed that they should be known and treated as bills of the Banco
Internacional de Costa Rica, and should bear on their left margin the
impression of the seal of the Ministry of the Treasury.
On the 16th of July, there was deposited in the Royal Bank of Canada, to
the credit of the Costa Rican Government, a check drawn by Jimenez,
Minister of the Treasury, against the Banco Internacional de Costa Rica
for 1,000,000 colones. On the stub of the check was a memorandum that
it was payable in provisional bills of 1,000 colones. The face of the check
contained the words "Supreme Government Law No. 12 of June 28, 1919".
The check was presented to the Banco Internacional, which accordingly
delivered in payment thereof, to the Royal Bank, one thousand 1,000 colones
bills of the form above given.
Thereafter the Minister of Finance, after a conversation with the manager
of the Royal Bank, in which he explained that the circulation of such irregularly prepared bills might produce confusion, wrote under date of July 17,
1919, as follows:
389
GREAT BRITAIIV/COSTA RICA ( T I N O C O CASE)
Dear Sir:
With reference to the deposit made yesterday at your bank for one
million (1,000,000) colones in notes of one thousand (1,000) colones
each, which you agreed to withhold from circulation, I hereby confirm
our verbal agreement, as follows:
That this Ministry will pay interest at the rate of 10 per cent, per
annum on the amount of the deposit that is utilized and that before
September 15 next, the noies of this deposit will be replaced by current
issues.
Yours truly,
FRANKLIN JIMENEZ,
Minister of Finance.
It is alleged on behalf of Great Britain that the Government of Costa Rica

then drew against this account for governmental purposes, and that the
bank honored the checks, some twenty in number, which exhausted the
deposit. Subsequently the Royal Bank succeeded in circulating two of the
1,000 colones notes, receiving their face value, and reducing the amount of
notes held by it to 998,000 colones.
Upon these facts rests the claim that the Costa Rican Government and
the Banco Internacional must recognize the validity of the thousand colones
bank notes still held by the Royal Bank, and make them good, or pay to it
the money which it expended in honoring the checks drawn against the
million colones deposit for governmental purposes.
The account, showing the ultimate application of the deposit, as presented
by Great Britain, from the books of the Royal Bank, is as follows:
1919
July 16. To International Bank
July 17. For the Royal Bank of Canada
Debit
C 1,000,000.00
Revolving Credit
17. To Royal Bank of Canada

17.
26.
Aug.
2.
2.
4.
4.
4.
4.
5.
6.
7.
8.
8.
9.
13.
Dec. 27.
Revolving Credit
For Public Debt Service
For Foreign Relations Dept.
For War and Police M. Dept.
For Royal Bank of Canada
Revolving Credit
For Bank of Costa Rici Cur. Act.
For Bank of Costa Rici Cur. Act.
To purchase of drafts
For War and Police M. Dept.
For Bank of Costa Rica Cur. Act.
To French Loan Service
To Purchase of Drafts
Balance
Credit
C 900,000.00
450,000.00
5,000.00
45,000.00
1,500.00
51,750.00
26,000.00
225,000.00
135,000.00
202.95
40,000.00
116,355.17
7,177.50
56,000.00
35,200.00
18,898.70
1,500.00
155.68
C 1,562,950.00 C 1,562,950.00
In its effort to secure evidence explaining or impeaching this account,
Costa Rica filed a demand before a local court in Costa Rica for the production of evidence, including the following:
390
1. The accounts in American gold and in colones which do now

exist or which may have existed in the past in the name of the government of this republic or of the Minister or of the Secretary of the
Treasury, and that the entries made both in the ledger and the journal
be duly certified. 2. All the accounts which may have any connection with those indicated in the immediately preceding number, and
that such entries made both in the ledger and the journal as may be
connected with those which are mentioned in No. 1 above, be duly
certified.
The agent of the Royal Bank denied the jurisdiction of the court to
require their production, but used the following language:
Whether obliged or not to do it the Royal Bank of Canada is ready
and willing to produce, as soon as it is ordered to do so, all its accounts
and any other documents within its powers which the high arbitrator
may need, and it is to be observed that the bank has already sent to its
New York office, for the purpose of being presented, in case of need, a
part of the documents which have been asked for.
The Costa Rican Government in its counter case says that it "is unwilling
to agree to the ex parte production of these accounts before the arbitrator,
after it is too late for a full discussion of them by the Government of Costa
Rica, and also without an opportunity of ascertaining that what is produced
is really a full and reliable disclosure of all the transactions, especially in
view of their admission, above quoted, that the documents in New York are
only 'a part of the documents which have been asked for' ".
In its counter case the Government of Costa Rica does present additional
accounts between the Royal Bank of Canada and the government, taken
from the books of the government entered during the Tinoco rgime. This
certified account includes not only the account of the Royal Bank of Canada
with the government, already introduced, on behalf of the Royal Bank,
which is said to appear on the ledgerfolio 669 and 691, but also an account
on folio 678 and 690, which is as follows:
THE ROYAL BANK OF CANADA REVOLVING CREDIT CURRENT ACCOUNT GOLD.
Debit
$64,447.95
Credit
$60,000.00
200,000.00
50,000.00
50,000.00
100,000.00
200,000.00
cri
1919
July 5. To Sundries
7. For War and Police M. Dept.
17. To Sundries
17. For Sundries
Aug. 2. To Sundries
2. To International Bank
2. For Foreign Relations Dept.
For Regular Export Duties
Sundries
11. For Treasury Dept.
200.00
4,247.95
$364,447.95
$364.447.95
Then follow journal entries relating to the two foregoing accounts:

Journal entry of July 16th, in explanation of the million dollar colones
deposit was as follows:
Entry No. 1538 F
391
July 16, 1919.

Debit
Credit
The Royal Bank of Canada Special Account C 1,000,000.00
To International Bank
C 1,000,000.00
Account of check No. A 109755 drawn on
the same to the order of the Royal Bank of
Canada payable in provisional bills of
G 1,000, which shall be exchanged for current bills before the 15th of September next
as per agreement with the Minister of the
Treasury. Interest at 10 per cent, per annum shall be paid to it on the sums which
the Minister of the Treasury shall use from
the said deposit.
Following that is a journal entry No. 1546 F, as follows:
July 17, 1919.
Debit
Credit
The Royal Bank of Canada Revolving Credit C 1,000,000.00
Account Equivalent in colones at 500 per
cent, exchange of 1200,000.00 deposited
today in said Bank for the purposes of Article G of Law No. 12 of the 28th of June
ultimo.
To The Royal Bank of Canada
C 900,000.00
Amount of the following, checks, drawn
yesterday from said Bank and from John
M. Keith's the 5200,000.00 deposited to
the order of the Ministry of the Treasury,
upon the reimbursement of the equivalent
in colones at 450 per cent, exchange, as per
contract with Enrique R. Clare of the 26th
of June ultimo.
No. 79501 to the order of the Royal Bank of
Canada
C 742,500.00
No. 79502 to the order of John M. Keith
157,500.00
To Pending Accounts
100,000.00
Enrique Clare
Sum paid to Clare on the 26th of June ultimo, as per the contract above referred to,
by check No. A, 109,248 on the International Bank.
Another journal entry No. 1717 F is as follows:
Entry No. 1717 F
August 2, 1919.
Debit
Credit
Foreign Relations Dept.
C 846,000.00
Emergency
Equivalent in colones at 423 per cent,
exchange of 5100,000.00 to the order of
the Minister of Foreign Relations and
$100,000.00 to the order of Jose Joaquin
Tinoco, the former for expenses of representation of the Chief of the State in his
approaching trip abroad, and the latter,
value of four annuities of salaries and office
expenses of the Legation of Costa Rica in
Italy which has been put in charge of Mr.
Tinoco.
392
To the Royal Bank of Canada Current Account in Gold Equivalent at 215 per
cent, exchange of S200,000; amount of
the following checks drawn upon the same :
No. 304 to the order of Jose Joaquin
Tinoco
$100,000.00
No. 305 to the order of the
Minister of Foreign Relations 100,000.00
To Difference in Exchange
Difference between 423 per cent, and 215
per cent, exchange.
C 430,000.00
416,000.00
In addition to this, there is in evidence a letter written by the Manager of

the Royal Bank of Canada, under date of July 27, 1921, which further
explains the payment of the checks Nos. 304 and 305. It is as follows :
Sir: Referring to your communication dated the 25th instant, I have the pleasure to inform you that cheques numbers 304 and 305 drawn by the Ministry of the Treasury on the
2nd of August, 1919, for 5100,000 each, and against the account of the Government in this
Bank, were paid with bills of exchange on the solicitation and to the satisfaction of the bearer
of each one of said cheques as follows:
Cheque No. 304 drawn by the Minister of the Treasury (Franklin Jimenez), in favor of
Jose Joaquin Tinoco, and dated August 2, 1919, endorsed by Jose Joaquin Tinoco. The
cheque was exchanged for 5100,000 in Bill of Exchange on New York; this transaction was
effected by Jaime Esquivel as follows:
In favor
No.
Date
Against
of
Amount
Paid
5783 Aug. 2, 1919 Royal Bank of Canada, Jaime Esquivel
S 10,000 Sept. 27, 1919
New York
5784
10,000
5785
10,000
10,000
5786
10,000
5787
10,000
5788
10,000
5789
10,000
5790
10,000
5791
10,000
5792
Cheque No. 305 drawn by the Minister of the Treasury (Franklin Jimenez), in favor of
the Minister of Foreign Relations, dated August 2, 1919, endorsed by the Minister of Foreign Relations (Guillermo Vargas). This cheque was exchanged for S 100,000 in Bills of
Exchange on New York and which transaction was effected by Jaime Esquivel as follows:
No.
Date
Against
In favor of
Amount
Paid
5788
Aug. 2, 1919 Royal Bank of Canada Frederico Tinoco 520,000 Aug. 26, 1919
New York
5781
20,000 Aug. 22, 1919
?
5782
20,000 Aug. 26, 1919
5,000 Sept. 26, 1919
325131
,
Chase National Bank of
New York
5,000 Sept. 26, 1919
325132
>7
3J
5,000 Aug. 26, 1919
325133
55
33
5,000 Aug. 26, 1919
325134
3
33
325135
5,000 Sept. 26, 1919
325136
5,000 Sept. 26, 1919
3
33
325137
5,000 Aug. 26, 1919
3
3)
325138
5,000 Aug. 26, 1919
33
n
I am, dear Sir, Very faithfully yours,
The Royal Bank of Canada,
J
T. J. REARDON, Manager.
393
These accounts taken from the Treasury Department were furnished by

Costa Rica to the other side before this arbitration began, so that the Royal
Bank has been long advised of their existence and contents. The failure of
the bank to produce any further statements of accounts from its own books
in explanation of the accounts thus appearing on the government books not
only makes these government accounts competent evidence, but also justifies inferences therefrom in the absence of explanation which the coincidence
of dates and the circumstances shown by other evidence make inevitable.
It is evident from the exhibits lhat in the spring of 1919 the popularity of
the Tinoco rgime had disappeared, and that the political and military
movement to end that rgime was gaining strength. Supporters of the
former government invaded the northern part of Costa Rica and the Tinoco
government found it necessary to suspend the guarantees of personal liberty
and establish martial law, beginning early in 1919, for periods of thirty days
continuously renewed until its fall in September. The sinking credit of the
Tinoco government and the expenses of the maintenance of the army raised
in its defense, had produced a stress in its finances which led to the legislation
authorizing the issue of the fifteen millions of colones. The emergency
was illustrated in the use of the very irregular form of the notes of issue by
the Banco Internacional de Costa Rica authorized by the legislation of
June and July of 1919, and by a sale of the deposit of silver coin held in
reserve by the Bank of Costa Rica, which acted as the national treasury. It
became perfectly clear from the mob violence and disturbances in June and
the evidences of the unpopularity of the Tinoco rgime, that it was in a
critical condition, and an agent of the Royal Bank testifies that the retirement of the Tinocos "was known as a positive thing about to take place
when the silver transaction was carried out on the 5th of July, when the
account in American gold for the value of the coined silver was opened on
the 5th of July, and when the million dollar colones deposit was made on the
16th of July". In the light of these circumstances, it is not difficult to infer
from the figures set forth in the foregoing account that there is an identity
between the million colones deposit of July 16th and the JJ200,000 credit of
July 17th to the government in the so-called gold revolving credit account
set forth above.
The language of the entry No. 1546 F, of date July 17, 1919, and its reference to Article 6 of Law No. 12, shows that this whole deposit was to be
transferred to the Revolving Credit Account Gold of the Royal Bank in the
amount of $200,000. It was accomplished by three checks, one to the
order of the Royal Bank itself, one to the order ofjohn M. Keith, and one to
the order of Enrique Clare. The account presented by the British Government on behalf of the Royal Bank, lumps first two checks in an item of 900,000
colones, debiting the Royal Bank Revolving Credit Account, thus showing
the destination of both. Without explanation, it may be difficult to fix the
exact details of this transaction, but the amounts, the dates, and the result
leave no doubt in my mind that ihe deposit of the 1,000,000 on July 16th,
the check for 900,000 colones also deposited in the Bank, the credit to the
government of $200,000 on the 17th in the Revolving Credit Current
Account Gold, and the withdrawal of $200,000 on August 2nd, were all
part of the same transaction intended to secure to the two Tinocos the drafts
for $100,000 each, shown by journal entry 1717 F, and by the letter of
January 27, 1921, from the Manager of the Royal Bank.
It thus appears that the present claim of the bank rests on its payment of
$200,000 to the Tinocos, $100,000 to Frederico Tinoco.. "for expenses of
394
representation of the Chief of State in his approaching trip abroad", and

$100,000 to Jose Joaquin Tinoco, as Minister of Costa Rica to Italy for
four years' salary and expenses of the Legation of Costa Rica in Italy, to
which post the latter had been appointed by his brother. The Royal
Bank cannot here claim the benefit of the presumptions which might obtain
in favor of a bank receiving a deposit in regular course of business and paying
it out in the usual way upon checks bearing no indication on their face of
their purpose. The whole transaction here was full of irregularities. There
was no authority of law, in the first place for making the Royal Bank the
depositary of a revolving credit fund. The law of June 28th authorized
only the Banco Internacional to be made such a depositary. The thousand
dollar colones bills were most informal and did not comply with the requirements of law as to their form, their signature or their registration. The case
of the Royal Bank depends not on the mere form of the transaction but upon
the good faith of the bank in the payment of money for the real use of the
Costa Rican Government under the Tinoco rgime. It must make out its
case of actual furnishing of money to the government for its legitimate use.
It has not done so. The bank knew that this money was to be used by the
retiring president, F. Tinoco, for his personal support after he had taken
refuge in a foreign country. It could not hold his own government for the
money paid to him for this purpose.
The case of the money paid to the brother, the Secretary of War, and the
appointed Minister to Italy, is much the same. The government book
entry charges him with this as a payment for expenses to be incurred in the
establishment of a legation in Italy. It includes the salaries and expenses
for four years. To pay salaries for four years in advance is a most unusual
and absurd course of business. All the circumstances should have advised
the Royal Bank that this second draft, too, was for personal and not for
legitimate government purposes. It must have known that Jose Joaquin
Tinoco in the fall of his brother's government, which was pending, could not
expect to represent the Costa Rican Government as its Minister to Italy for
four years, that the reasons given for the payment of the money were a
mere pretense and that it was only, as in the case of his brother Frederico, an
abstraction of the money from the public treasury to support a refugee
abroad.
The 100,000 colones remaining of the depesit of 1,000,000 colones of
July 16th, paid in a check to Enrique R. Clare, as shown by journal entry
No. 1546 F of July 17, 1919, is a credit to "Pending Accounts", and is
accompanied by the memorandum "Sum paid to Clare on the 26th of June
ultimo as per the contract above referred to, by check No. A 109,248 on the
International Bank". From the memorandum against the credit of 900,000
colones in the same entry this contract seems to have been an arrangement
for exchange and may have been the amount needed to transfer the whole
1,000,000 colones deposit into $200,000 gold. Whatever it was, it is so
closely connected with this payment for obviously personal and unlawful
uses of the Tinoco brothers that in the absence of any explanation on behalf
of the Royal Bank, it cannot now be made the basis of a claim that it was
for any legitimate governmental use of the Tinoco government.
The claim of the Royal Bank against the Costa Rican Government has,
however, been given a better status than as decided above, to the extent of
one-half of it, by the act of the existing Government of Costa Rica in
December, 1922. Jose Joaquin Tinoco was killed in the streets of the capital
during the disturbance on August 10, 1919, which occurred in protest against
395
the continuance of the Tinoco government. The present Government of

Costa Rica prosecuted a suit for $100,000 against Joaquin Tinoco's estate
in a Costa Rican Court, based on the payment by the Royal Bank of this
sum to him. The suit was compromised by a mortgage given by his widow
upon two estates of his for a full $100,000, of date December 21, 1922, the
same to be paid within five years. The Government of Costa Rica in
repudiating any obligation to the Royal Bank for paying $100,000 to Jose
Joaquin Tinoco, of course, deprived itself of any just claim to real ownership
of the mortgage upon his estates for that amount. This should enure to the
benefit of the Royal Bank. Proceeding in this matter ex quo et bono, therefore, I must hold that the bank is subrogated to the title of Costa Rica in the
mortgage and that as a condition of the award against the bank, as to the
whole 998,000 colones claimed by it, Costa Rica should transfer and assign
the mortgage to the bank for its benefit, together with any interest which
may have been meantime collected thereon.
The Amory concession was in the form of a contract between Aguilar,
Minister of Public Works, authorized by the President of the Republic, as
party of the first part, and Miguel D. Ferrer, as the attorney of John M.
Amory and Son, of 52 Broadway, New York, as party of the second part.
The Chamber of Deputies of the Tinoco government approved the contract
June 26, 1918. The concession is now owned by the Central Costa Rica
Petroleum Company, Ltd., of Canada, and all its stock is owned by the
British Controlled Oil Fields, Ltd. The concessionaire was given the right
during twelve years to prospect or cause to be prospected the territories of
the provinces of Cartago, Alajuela, Heredia and San Jose, constituting four
of the eight provinces of Costa Rica, comprehending half her territory, in
order to find deposits of petroleum, hydrocarbons and allied substances. On
his finding them, the concessionaire was granted the exclusive right to
locate all of the deposits discovered. At the end of twelve years, any
territory that might remain unexplored, or of which the concessionaire did
not present topographical and geographical plans to the government, might
be otherwise disposed of by the government for the mining of petroleum,
hydrocarbons and allied substances. The concessionaire was granted the
exclusive right during fifty years to develop and exploit the deposits located
by him; to establish pipe lines and pumping stations; to erect refineries and
bore wells; to build aqueducts, roads, railways, transmission lines and all
other works necessary for the extracting, warehousing and handling of
petroleum and allied substances; to use the national and public highways
and the unoccupied land for such purpose; to utilize the rivers, springs, and
water courses which may cross the national, municipal or private lands; to
install hydraulic or electrical plants required by the company for the generating of electric power for this purpose; to cut and fell timber on national
lands free of payment, and stone, slate, lime, clay, and other things that may
be necessary for the operation of the enterprise, and to locate and mine
such coal deposits as he might discover in his exploration. The enterprise
was declared to be a public utility under the protection of the government
so as to enable the concessionaire 1o exercise the right of expropriation for
the purpose of the grant. He was given the right to export the petroleum
and hydrocarbon products and by-products, or to sell the same within the
republic.
The grant was made on condition that the concessionaire should spend
$20,000 American gold in exploration during the first two years, and to
deposit $25,000 in the public treasury to secure this expenditure; invest in
396
the three years following the two years, not less than $ 125,000 gold in an
investigation and exploitation of the petroleum deposits, and secure this
action by the deposit of 40,000 colones in internal bonds of Costa Rica in
the treasury at San Jose or in a bank in England or in the United States, and
during seven years succeeding the previous five, invest a sum of not less
than one million colones, to continue the work of investigation and exploitation, and deposit, as security for this, in the treasury of the republic, or in a
bank of England or of the United States, 30,000 colones of the interior debt
of Costa Rica; commence explorations within four months; use the best
kind of machinery and methods for doing the work; organize a company
called the Central Costa Rica Petroleum Company; transfer all the rights
of the concessionaire to that company, as well as the obligations of the latter
to Costa Rica-, and organize the company within four years with a capital
paid up of not less than one million dollars in United States currency.
The considerations for this concession are contained in Articles VII, VIII
and X.
The concessionaire, by Article VII, agrees to pay 25 cents, American
currency, on every ton of crude petroleum or other hydrocarbon products
exported or sold in the republic, deducting what he may use in his work of
production, refining and transport. By Article VIII he undertakes to
supply gratuitously all fuel and lubricating oil needed to run the present
government railways and extensions thereof, provided that the total net
output from the petroleum fields shall be at least 1,000 tons a day, the
storage and transportation to be at the expense of the government. By
Article X, it is provided as follows:
With the exception of the oil supplied as provided by Article VIII
hereof, the royalty of 25 cents referred to in Article VII, shall be the
only tax or duty payable by the concessionaire to the Government of the
Republic or to the local governments or municipalities in respect to this
concession; but the concessionaire shall not be exempted from any
national taxes payable by the public in general at the present rates.
The government exempts the concessionaire from the payment of
general or partial taxes which may be levied hereafter, unless they be
for public services established or conducted by the government and of
which the concessionaire shall make regular use, or by which he may
directly and permanently benefit.
The first objection to an award in favor of the Amory concession in this
proceeding by the British Government, is that it was granted to an American
firm and that there is no evidence that British subjects were interested in
it until after it had been repudiated, so that they acquire nothing but a
law suit. It is urged that Great Britain may not protect her subjects in
prosecuting a claim acquired from American owners after it had become the
subject of controversy. The British case, presenting the Amory claim
separately, says that British capital was engaged in the concession from the
first, and that Amory & Son were only agents of a large English Company
known as the British Controlled Oil-fields, Limited, and that all the capital
has been furnished by that company since the concession was granted
and work done under it. No formal proof is made of this. In a letter of
the Secretary of State of Costa Rica to a representative of the British
Government, of September 29, 1920, he says:
When the Amory contract was being negotiated, assurance was given
that the responsible firm was North American and documents presented
397
to the Department of Public Works show that the transfer provided by

the contract was made to a concern domiciled in the State of Delaware
of the United States of America. In spite of this, and in view of the
repeated assertions contained in the notes to which this is a reply, we
now have no doubt that a parl at least of the capital is English or of
English origin, and that the interest that moves you to intervene in the
matter is born of that circumstance.
No objection of this kind by Costa Rica was made in the Congressional
resolution of the 13th of December. 1921, or, so far as I can discover, in
previous correspondence. It appeals for the first time in the counter case.
Had it been clearly made in previous correspondence, the failure to make
proof might have raised the question of law urged, but in view of the admission above and the lack of distinct challenge previous to the counter case,
I cannot regard it as substantial.
Nor do I deem it necessary to go in detail into the question of performance. It seems to me that substantially everything was done by the concessionaires or their assignee required by the contract in the way of an
advance of one million dollars of capital, of the security to be given, and of
considerable expenditure to be made. The accounts show the actual outlay
of at least 200,000 colones in exploration in Costa Rica, and of 300,000
colones in importation into the country of machinery and other preparation
enough certainly to manifest good faith and to appeal for equitable treatment in case this concession cannot be sustained as a contract.
The most serious objection to the concession is that it was granted by a
body without power to grant it. Its validity is, as I have already said, to be
determined by the law in existence at the time of its granting; and that
means the law of the Government of Costa Rica under Tinoco. This concession was granted, with the approval of the President, by the Chamber of
Deputies of Costa Rica. By the constitution of June 8, 1917, established
under Tinoco, the Government of the Republic was vested in three different
powers independent of each other, to be known as the legislative, the executive and the judicial powers. The legislative power was vested in a congress composed of two chambers, one: of Senators and the other of Deputies,
whose members in both were elected by the citizens and might be reelected
indefinitely. By Article 76, the Congress was tb meet as a single body and
exercise ten powers, which were within its exclusive jurisdiction. The
tenth power was as follows :
10. To approve or disapprove laws, fixing, enforcing or changing
direct or indirect taxes.
The Chamber of Deputies was given the power to decree the alienation of
property of the nation, or the application thereof for public uses ; and especially to empower the executive to negotiate loans or to enter into other
contracts upon mortgage security of the national revenue. The Senate was
given the power to approve or disapprove the loan contracts which might be
entered outside of the country, after ihe contract had been approved by the
Chamber of Deputies ; to approve or disapprove the contracts which the
government might enter into, when on account of the nature and importance
of the subject matter the executive power of the Chamber of Deputies, at
the request of one-third of the members present, considered necessary the
sanction of the Senate.
It is contended that this concession is a contract which the Chamber of
Deputies might validly make and bind the government unless the executive
398
or one-third of the members present should consider the sanction of the

Senate necessary, and that as neither the executive power nor one-third of
the votes of the members of the Chamber indicated its view that the sanction of the Senate was necessary to this concession, it was valid.
The recital of the concession shows that an important part of it dealt
with the future taxes to be paid by the concessionaire and made very especial provision in reference thereto. He was to pay a revenue tax of 25 cents
United States currency on every ton of crude petroleum to be exported from
Costa Rica or sold within its limits. This was called a revenue tax. In
addition to this the concessionaire undertook to supply the government with
combustible and lubricating oil for the existing railways or for any extension
within the provinces named, if the product of the enterprise was not less
than 1,000 tons per day within a given period. Article X limited the taxes
to be paid to the royalty of 25 per cent, and exempted the company from the
payment of taxes to local governments or municipalities, and from all
national taxes except those payable by the public in general at the rates
existing at the time of the concession. It exempted the concessionaire from
the payment of other general or partial taxes levied thereafter unless they
were for public benefits furnished by the government of which the concessionaire should make regular use, or by which he might directly or indirectly
benefit, i.e., unless they were special assessments for actual benefits. Considering the very heavy burden to which but for these exemptions the company might have been subjected in the event of successful exploitation, they
were a valuable part of the concession. It is evident that it was the hope
and expectation of both parties that oil would be discovered and that upon
its discovery the company would develop a large production, refining and
transmission of oil, involving the expenditure of large capital and the
investing of it in plants of millions of value. The protection which these
clauses afforded against the heavy reduction of dividends by increased
future taxes, was one of the great factors of value in the contract. It seems
to be impossible to escape the conclusion that the power to grant such
exemptions and to limit future taxation could only be exercised under the
constitution of 1917 by Congress in a single body. The granting of this
concession certainly involved the power to approve laws fixing, enforcing
or changing direct or indirect taxes. As the Chamber of Deputies was
expressly excluded from exercising this power alone, Article X was invalid.
It is urged that under the practical construction of the Tinoco constitution,
the Chamber of Deputies did grant tax exemptions and five instances are
cited from the official Gazette to show this. These were cases in which the
customs duty on machinery introduced into the country was waived. They
could hardly be held to amount to an amendment of the fundamental law
by practice, or such a construction of it as to justify an exception by the
Chamber of Deputies of ad valorem taxation, general and local, on the plant
and property of the concessionaire for fifty years. My conclusion is supported by the action of President Tinoco himself in vetoing a law granting
future exemptions from taxation to an insurance company enacted by the
Senate, on the ground that only the Congress as a single body could grant
them under its exclusive power to fix, enforce, or change direct or indirect
taxes.
It is impossible to reject the Article X and hold the remainder of the concession valid. That article is too vital an element in its value. The contract cannot be made over by this tribunal for the parties.
399
The result is that the government of Tinoco itself could have defeated this
concession on the ground of a lack of power in the Chamber of Deputies to
approve it.
It is finally contended that the present Government of Costa Rica has
recognized the Amory concession and thus given it validity. The argument rests upon correspondence between the attorney for the concessionaire
and the Minister of Finance and Commerce in 1919 and 1920, in which the
concessionaire was permitted to bring in certain machinery, duty free, for
the exploration under the concession. Such permission was given but it
was accompanied with the express reservation that the permission should
not ratify the concession or affect the right of the government to declare a
nullification of the franchises if deemed convenient.
My award, therefore, is that the Law of Nullities in its operation upon
the validity of the 998 one thousand colones bills and the claim in behalf of
the Royal Bank, will work no injury of which Great Britain can complain,
if Costa Rica assigns all her interest in the mortgage for $100,000 upon Jose
Joaquin Tinoco's estate executed by his widow, together with all interest
paid thereon to the Royal Bank, and that, upon Costa Rica's executing
this assignment and delivering the mortgage, the Royal Bank should deliver
to the Government of Costa Rica the 998 one thousand colones bills held
by it.
My award further is that the Law of Nullities in decreeing the invalidity
of the Amory concession worked no injury to the Central Costa Rica Petroleum Company, Ltd., the assignee of the concession, and the British Controlled Oil Fields, Ltd., its sole stockholder, of which Great Britain can
complain, because the concession was in fact invalid under the Constitution
of 1917.
Article one of the treaty, under which this arbitration proceeds, provides
that "the arbitrator shall determine what one party may owe the other for
the expenses of the claim, and decide with regard to the payment of the
expenses of the arbitration". Under the award, which is partly in favor of
one and partly in favor of the other, I think it fair to require that each party
pay its own expenses in maintaining its claims.
So far as the payment of the expenses of the arbitration is concerned, I
know of none for me to fix. Personally, it gives me pleasure to contribute
my service in the consideration, discussion and decision of the questions
presented. I am glad to have the opportunity of manifesting my intense
interest in the promotion of the judicial settlement of international disputes,
and accept as full reward for any service I may have rendered, the honor
of being chosen to decide these important issues between the high contracting parties.

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REPORTS OF INTERNATIONAL

NATIONS UNIES - UNITED NATIONS

Arbitration Convention January 12, 1922.Ratification March 7,

For bibliography, index and tables, see Volume III.

Convention between the British Government and the Government

for Foreign Affairs;

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Who, after having communicated to each other their respective full

Both Governments solemnly undertake to conform to the decision of

The High Contracting Parties agree in nominating as Arbitrator the

Immediately after the exchange of the ratifications of this Convention,

GREAT BRITAIN/ COSTA RIGA ( T I N O C O CASE)

Within ninety calendar days following such notification, each of the

The Costa Rican Government undertake to give without delay or any

To be valid the present Convention must receive the approval of the

ALEJANDRO ALVARADO QUIRS.

The Undersigned, duly authorised by their respective Governments,

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

The respective ratifications have been carefully compared and have

(L. S.) J. RAFAEL OREAMUNO.

GREAT BRITAIN/COSTA RICA ( T I N O C O CASE)

ARBITRATION BETWEEN GREAT BRITAIN AND COSTA RICA.

Washington, B.C., October 18, 1923.

This is a proceeding under a treaty of arbitration between Great Britain

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Article 2. The approval given in the preceding article to the

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

It is convenient to consider first the general objections to both claims

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Again Dr. Moore says:

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

RICA (TINOCO CASE)

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

the incumbency of the government it has overthrown. The question is,

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

national Arbitrations, Vol. 3, 2973), Janson's case (ibidem, 2902), and

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Whereas it is recorded in the documents previously inserted that the Royal

Articles 11 and 12 referred to in this banking law are as follows:

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Internacional or of the state in satisfaction of such claims. It is true that

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

GREAT BRITAIIV/COSTA RICA ( T I N O C O CASE)

It is alleged on behalf of Great Britain that the Government of Costa Rica

17. To Royal Bank of Canada

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

1. The accounts in American gold and in colones which do now

Then follow journal entries relating to the two foregoing accounts:

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

Entry No. 1538 F

July 16, 1919.

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

In addition to this, there is in evidence a letter written by the Manager of

GREAT BRITAIN/COSTA RICA (TINOCO CASE)

These accounts taken from the Treasury Department were furnished by

GREAT BRITAIN/COSTA RICA (TINOCO CASE)