Responsibility of states for damage caused in their territory to the person or property of foreigners

Bibliographic data

Monograph

Identifikator:: 1831665921

URN:: urn:nbn:de:zbw-retromon-222025

Document type:: Monograph

Author:: Maúrtua, Víctor M.; Scott, James Brown http://d-nb.info/gnd/117654191

Title:: Responsibility of states for damage caused in their territory to the person or property of foreigners

Place of publication:: New York

Publisher:: Oxford Univ. Press

Year of publication:: 1930

Scope:: V, 67 S.

Digitisation:: 2022

Collection:: Economics Books

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Document type:: Monograph

Structure type:: Chapter

Title:: VI. The administration of justice

Collection:: Economics Books

3 RESPONSIBILITY OF STATES following formula at its Lausanne session in 1927, covering responsibility by reason of a denial of justice or manifest injustice: “First; when the courts necessary to assure protection to aliens do not exist, or are not functioning. Second; when, in the absence of reasons justi- fied by the requirements of procedure, the courts are not equally accessible to foreigners and nationals alike. Third; when such courts manifestly fail to provide those guaranties indispensable to assure the proper administration of justice. “The State is equally responsible if the proceedings or the decision con- stitute a manifest injustice, and especially, if they have been influenced by 1l-will against all foreigners as such, or against the nationals of one State in narticular.” The Research Committee of the Harvard Law School has adopted the ‘ollowing formula as a solution for this problem : “A State is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guaranties which are generally considered indispensable to the proper administration of justice, or 2 manifestly unjust judgment. An error of a national court which does not produce a manifest injustice is not a denial of justice.” The Preparatory Committee of the Codification Conference propounded this question in Basis of Discussion No. 6, reading as follows: “A State is responsible for damage suffered by a foreigner as the result of the courts following a procedure and rendering a judgment vitiated by faults so gross as to indicate that they did not offer the guarantees indis- pensable for the proper administration of justice.” The replies of the various governments are not uniform. The Govern- ment of Australia deems that a State may incur responsibility if the decision is either corrupt or so erroneous that it could not honestly have been given by a competent court, or is given under pressure from the executive organs of the government. The Government of Belgium recognizes responsibility if after the judge has been shown to be guilty of corruption, the laws of the country do not allow the decision to be reversed. Great Britain believes that there are four principal grounds for responsibility in the case of an erroneous decision: if it is “(a) So erroneous that no properly constituted court could honestly aave arrived at such a decision; “(b) Due to corruption; “(c) Due to pressure from the executive organs of the Government: and

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