of the parties, fixing such damages as in its elevated judgment it believes to be just and equitable. In every event the ARBITRAL TRIBUNAL shall decide: (a) What effect, if any, said decision of the Federal Court and of Cassation produced and has upon everything relating to the rights of the claimant company as assignee of the Fitzgerald contract; (b) Whether said Fitzgerald contract is in force; and, (c) If it determines that said contract is in force, then, what are the rights and the obligations of the claimant company on the one hand, and of the Government of Venezuela on the other. ARTICLE III William I. Buchanan, High Commissioner, representing the President of the United States of America, and Doctor Francisco González Guinán, Minister for Foreign Affairs of the United States of Venezuela, have carefully considered in the conferences they have held, the matter of the United States of America on behalf of the United States and Venezuela Company against the United States of Venezuela, also known as the Crichfield case, and have found that while the questions involved therein differ in several aspects from those in the other claims they have considered, the same radically different views held by their respective Governments in those cases exist in the case under consideration. To the end therefore, that nothing shall be left pending that will not tend to add to the good understanding and friendship existing between the two Governments, their Representatives above-named, William I. Buchanan and Doctor Francisco González Guinán hereby agree that the matter of the United States of America on behalf of the United States and Venezuela Company against the United States of Venezuela shall be submitted to the ARBITRAL TRIBUNAL created by this Protocol, and they further agree that said TRIBUNAL is empowered to examine, consider, hear, determine and make its award in said case on its merits in justice and equity. ARTICLE IV The United States of America and the United States of Venezuela having, at the Second Peace Conference held at The Hague in 1907, accepted and recognized the permanent court of The Hague, it is agreed that the cases mentioned in Articles I, II, and III of this Protocol, that is to say, the case of the Orinoco Steamship Company, that of the Orinoco Corporation and of its predecessors in interest and that of the United States and Venezuela Company, shall be submitted to the jurisdiction of an ARBITRAL TRIBUNAL composed of Three Arbitrators chosen from the above-mentioned Permanent Court of The Hague. No member of said Court who is a citizen of the United States of America or of the United States of Venezuela shall form part of said ARBITRAL TRIBUNAL, and no member of said Court can appear as counsel for either nation before said TRIBUNAL. This ARBITRAL TRIBUNAL shall sit at The Hague. ARTICLE V The said ARBITRAL TRIBUNAL shall, in each case submitted to it, determine, decide and make its award, in accordance with justice and equity. Its decisions in each case shall be accepted and upheld by the United States of America and the United States of Venezuela as final and conclusive. ARTICLE VI In the presentation of the cases to the ARBITRAL TRIBUNAL both parties may use the French, English or Spanish language. Within eight months from the date of this Protocol, each of the parties shall present to the other and to each of the members of the ARBITRAL TRIBUNAL, two printed copies of its case, with the documents and evidence on which it relies, together with the testimony of its respective witnesses. Within an additional term of four months, either of the parties may in like manner present a counter case with documents and additional evidence and depositions, in answer to the case, documents, evidence and depositions of the other party. Within sixty days from the expiration of the time designated for the filing of the counter cases, each Government may, through its Representative, make its arguments before the ARBITRAL TRIBUNAL, either orally or in writing, and each shall deliver to the other copies of any arguments thus made in writing, and each party shall have a right to reply in writing, provided such reply be submitted within the sixty days last named. ARTICLE VIII All public records and documents under the control or at the disposal of either Government or in its possession, relating to the matters in litigation shall be accessible to the other, and, upon request, certified copies of them. shall be furnished. The documents which each party produces in evidence shall be authenticated by the respective Minister for Foreign Affairs. ARTICLE IX All pecuniary awards that the ARBITRAL TRIBUNAL may make in said cases shall be in gold coin of the United States of America, or in its equivalent in Venezuelan money, and the ARBITRAL TRIBUNAL shall fix the time of payment, after consultation with the Representatives of the two countries. "For modifications of arts. VII and X, see exchange of notes, p. 1120. ARTICLE X5 It is agreed that within six months from the date of this Protocol, the Government of the United States of America and that of the United States of Venezuela shall communicate to each other, and to the Bureau of the Permanent Court at The Hague, the name of the Arbitrator they select from among the members of the Permanent Court of Arbitration. Within sixty days thereafter the Arbitrators shall meet at The Hague and proceed to the choice of the Third Arbitrator in accordance with the provisions of Article 45 of The Hague Convention for the Peaceful Settlement of International Disputes, referred to herein. Within the same time each of the two Governments shall deposit with the said Bureau the sum of fifteen thousand francs on account of the expenses of the arbitration provided for herein, and from time to time thereafter they shall in like manner deposit such further sums as may be necessary to defray said expenses. The ARBITRAL TRIBUNAL shall meet at The Hague twelve months from the date of this Protocol to begin its deliberations and to hear the arguments submitted to it. Within sixty days after the hearings are closed its decisions shall be rendered. ARTICLE XI Except as provided in this Protocol the arbitral procedure shall conform to the provisions of the Convention for the Peaceful Settlement of International Disputes, signed at The Hague on October 18, 1907, to which both parties are signatory, and especially to the provisions of Chapter III thereof. ARTICLE XII It is hereby understood and agreed that nothing herein contained shall preclude the United States of Venezuela, during the period of five months from the date of this Protocol, from reaching an amicable adjustment with either or both of the claimant companies referred to in Article II and III herein, provided that in each case wherein a settlement may be reached, the respective company shall first have obtained the consent of the Government of the United States of America. The undersigned, WILLIAM I. BUCHANAN and FRANCISCO GONZÁLEZ GUINÁN, in the capacity which each holds, thus consider their conferences with respect to the differences between the United States of America and the United States of Venezuela as closed, and sign two copies of this Protocol of the same tenor and to one effect, in both the English and Spanish languages, at Caracas, on the thirteenth day of February one thousand nine hundred and nine. WILLIAM I. BUCHANAN [SEAL] [SEAL] •TS 536, ante, vol. 1, p. 577. EXCHANGE OF NOTES The American Minister to the Minister of Foreign Affairs Mr. MINISTER: September 13, 1909 Referring to a conversation on the subject, I have the honor to inform Your Excellency that the Department of State of the United States of America assents to Venezuela's suggestion to modify Article X of the Protocol signed February 13, 1909, by fixing October 15 as the date on or before which the Arbitrators must be named, and providing for a meeting at The Hague of the Arbitrators so chosen, between January 5 and 15, 1910, to select a third; always provided that Venezuela will also agree to modify Article VII of the above-mentioned Protocol by fixing January 1, 1910, as the date for the presentation of the case, and April 30, 1910, as the date for the presentation of the counter case; and to modify Article X by fixing May 15, 1910, as the date for the meeting of the Arbitral Tribunal. I am instructed to inform Your Excellency that the Protocol of February 13, 1909, is approved by the Government of the United States of America, and is in effect in the United States, and that the President of the United States of America transmitted said Protocol to the Senate for its information, in a message dated April 20, 1909. I take this occasion to renew to Your Excellency the assurance of my highest and most distinguished consideration. I have the honor to acknowledge the receipt of Your Excellency's note of yesterday's date, in regard to fixing certain extensions and dates in connection with the Protocol of February 13th last, between the United States of Venezuela and the United States of America. In reply I am pleased to inform Your Excellency that the Government of Venezuela assents to the 15th of next October as the date on or before which appointment must be made of the arbitrators referred to in Article X of the above-mentioned Protocol. The Government of Venezuela also agrees that the first meeting of the arbitrators to select a third shall take place between the 5th and 15th of January, 1910; that January 1, 1910, shall be the date for the presentation of the cases of the two Governments; that April 30, 1910, shall be the date for the presentation of the counter case and May 15, 1910, the date for the meeting of the Arbitral Tribunal. Note has been taken of the fact that the Protocol of February 13, 1909, has been approved by the Government of the United States, and is in effect in said Nation, whose President transmitted it to the Senate for its information in a message dated April 20 last. I take this occasion etc., etc., etc. To His Excellency W. W. RUSSell, etc., etc., etc. J. PIETRI |