Contracts and Peace Treaties: The General Clause on by Pieter Nicolaas Drost (auth.)

By Pieter Nicolaas Drost (auth.)

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Extra resources for Contracts and Peace Treaties: The General Clause on Contracts in the Peace Treaties of Paris 1947 and in the Peace Treaty of Versailles 1919. A Comparison in Outline with some Suggestions for the Future Peace Treaties

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In Societa Commerciale d'Oriente c. Gouvernement turc, Rec. IX, 6I2. Without the exception of par. 2 the same contract would be governed by par. e. K. and Turkey knew only the test of locality in respect of enemy character. A contract between a British subject and a Turkish national both resident in Great Britain would not be dissolved under par. 1 of art. 82 Treaty of Lausanne unless a Turkish trade prohibition affected Turkish subjects in Great Britain. The Satellite Treaties do not give any positive indication as to their extent ratione personae.

It is true that such provisions would lose much of their practical importance if an exception as referred to above would be likewise inserted. War-time contracts between parties all having resided within the territorial orbit of German occupation might well be covered by a general clause in the German Treaty on lines similar to the provisions on pre-war contracts in the Satellite Treaties; d. chapter IV. On the other hand, it can be argued that contracts between parties, all of whom were living under Germans and were, therefore, in many instances forced to come or remain in contractual relations with Germans, should be left to the ordinary law.

A State can grant its nationality to its subjects but is equally free to take it away. T. applied the control test in conjunction with the criterion of "enemy treatment" . T. applied control test. T. decided without any reserve in favour of the theory of control. The famous case Societe de Chemin de fer de Damas-Hamah c. La Compagnie de Chemin de fer de Bagdad, Rec. I, 40I, was the first of a long series of judgments of the Tribunal which all show an unqualified adherence to the principle of control as the determining factor to establish the nationality of corporations.

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