File No. 422.11 G 93/607. The American Chargé d'Affaires to the Secretary of State. No. 197.] AMERICAN LEGATION, Quito, March 17, 1913. SIR: I have the honor, with reference to my unnumbered despatch of the 11th instant, with which I transmitted a letter from the American Arbitrator, Dr. Janes, saying that he had refused to take the oath of office on the occasion that the Judge of Letters called at his house for the purpose of administering it, to inform the Department that the next move on the part of the Ecuadorean Government was to address a note to this Legation (No. 249, dated March 14, 1913) to which the Legation replied by note No. 159 of to-day's date. This note was prepared after consultation with Dr. Janes. I have [etc.] RUTHERFORD BINGHAM. [Inclosure 1-Translation.] The Minister for Foreign Affairs to the American Chargé d'Affaires. No. 249.] MINISTRY OF FOREIGN AFFAIRS, SIR: I have the honor to transcribe to you for your information the following communication, No. 171, dated the 13th of the present month, which the Minister of Public Works sent to me: THE MINISTER OF FOREIGN AFFAIRS AND JUSTICE: I believe it proper to inform you, in order that you may bring it to the knowledge of the Chargé d'Affaires of the United States of North America, that Dr. Manuel R. Balarezo, Government Attorney, requested the Judge (Juez de Letras) of the Province of Pichincha to administer the oath of office to Dr. Henry L. Janes and Dr. Alfredo Baquerizo Moreno, for the discharge of the important office of Arbitrators, to which they have been appointed respectively by the Governments of Ecuador and the United States of America, for the purpose of deciding the controversies between the Government of Ecuador and the Guayaquil and Quito Railway Co. This request was caused by the consideration that the Agents (having full power of attorney) and the Attorney of the Guayaquil and Quito Railway Co. have raised difficulties to having this cath taken before the Supreme Court. The Government has designated the Senate Chamber as the office or meeting-place of the Arbitral Tribunal for the beginning of its labors. The Government of Ecuador believes that the Arbitrators should take the oath of office in conformity with the motion made by Dr. Balarezo, the Government Attorney, but the Representative of the Railway Company states that he does not consent to the oath of office being taken in the manner indicated above. This opposition prevents the immediate organization of the Tribunal and commencement of its labors, which is what the Government of Ecuador has desired and continues to desire with eagerness. God and Liberty. Accept [etc.] [Inclosure 2.1 MODESTO A. PEÑAHERRERA. LUIS N. DILLON. The American Chargé d'Affaires to the Minister for Foreign Affairs. No. 159.1 AMERICAN LEGATION, Quito, Ecuador, March 17, 1913. MR. MINISTER: I have the honor to acknowledge receipt of the note of your excellency No. 249, of the 14th instant, in which you transcribe at the suggestion of the Minister for Public Works a communication from that Ministry stating that proceedings have been initiated before the Second Judge of Letters of Pichincha Province to the end that the arbitrators designated according to the terms of Article 27 of the railway contract of 1897 may enter upon their duties. The Minister for Pubile Works adds that this action has been made imperative because of difficulties, which he does not specifically indicate, raised by the rep resentatives of the Guayaquil and Quito Railway Company in this important matter, preventing the realization of the original plans, which were, to have the oath administered as a befitting courtesy by the President of the Supreme Court of Ecuador. It cannot but remain a matter of keen regret that there should exist such an apparent variance of views regarding the character and dignity of a Tribunal upon which the President of the United States has, in accordance with a request from the Government of Ecuador transmitted through official diplomatic channels, named his representative. The steps which the State's Attorney of Ecuador has now inaugurated before the local courts of justice appear strange in the light of the knowledge of the simple and direct methods which led to the organization of the previous arbitration in the month of October, 1907. In view of the above, and with a desire to clarify the present situation. I hasten to inform your excellency that the disinclination of the American Arbitrator to take an oath of office as arbitrator in the present case before the Judge of Letters, was due to the natural fear that an erroneous significance might be attached to such act on his part, particularly by encouraging a possible miscon ception as to the generally accepted character of the arbitration expressly provided for under the contract for the final settlement of all differences and disputes arising between the Government of Ecuador and the Guayaquil and Quito Railway. The American Arbitrator states to me that he has from personal conversation with his excellency the Minister for Public Works been greatly gratified to learn that the present action of the State's Attorney in petitioning the Judge of Letters in the matter is not to be construed as implying a submission on the part of the arbitarators to the jurisdiction of the court by whom the oath is by courtesy administered, that it is not the understanding of the Government that the Arbitral Tribunal about to be constituted will be governed by local laws and procedure, and that the award contemplated by Clause 27 is de natura unquestionably final. From this, it would appear that no insuperable obstacles had in fact presented themselves to the immediate organization of the Arbitral Tribunal. It accordingly gives me pleasure to inform your excellency that if the Foreign Office will formally renew this statement to the Legation, Doctor Janes will be prepared at any time to take the oath of office, before any officer who is by law empowered to administer oaths, upon the bases which it is understood by Doctor Janes from Doctor Peñaherrera the parties have already tentatively adopted for the guidance and assistance of the arbitrators in the discharge of their high duties. I avail [etc.] RUTHERFURD BINGHAM. File No. 422.11 G 93/621. The American Chargé d'Affaires to the Secretary of State. No. 200.] AMERICAN LEGATION, SIR: I have the honor to report that since my despatch No. 197, dated March 17, 1913; the progress in the formation of the Arbitral Tribunal has been very slight. Since that date the time has been taken up by a correspondence between Dr. Henry L. Janes, the American Arbitrator, on the one side, and the Minister of the Interior and the Judge of Letters of the Province of Pichincha on the other. Copies of this correspondence are enclosed for the information of the Department. I have [etc.] RUTHERFORD BINGHAM. No. 417.] [Inclosure 1--Translation.] The Judge of Letters to the American Arbitrator. SECOND COURT OF LETTERS, DR. HENRY L. JANES: This Court ordered that you take possession of the charge of Arbitrator; and in order that this proceeding may be effected, a new day and hour being fixed, you will, if you please to do so, make it known whether you are willing to take the oath, or, in the contrary case, to make known the objection you may have to performing that act, in which this Court can intervene with indisputable authority. God and Liberty, [Inclosure 2-Translation.] CARLOS F. GÓMEZ. SECOND COURT OF LETTERS, DR. HENRY L. JANES: In the proceedings put into effect in order that you and Dr. Alfredo Baquerizo Moreno may take possession of your offices as Arbitrators, in order to pass upon the controversies which have arisen between the Guayaquil and Quito Railway Company and the Government of Ecuador, there is filed further the following decree: QUITO, March 15, 1913, 1 p. m. In accordance with Clause No. 1 of Article 49 of the Organic Law of Judicial Power, this Court has authority to give possession to Doctors Alfredo Baquerizo Moreno and Henry L. Janes of the office of Arbitrators, by means of the prescribed oath; since the State is the plaintiff in the controversies or disagreements with the Guayaquil and Quito Railway Company, this authority can not be doubted. For the purpose indicated in Clause No. 1, the Secretary will amplify his communication of the 10th instant; and for the purpose indicated in Clause No. 2 of said order, let the said Dr. Henry L. Janes be informed, without waiving the notice of this decision. In view of the answer which may be given to the said notice, a day and hour will be fixed for giving possession of the office. I communicate this to you for your information. GÓMEZ. The Second Secretary of Hacienda. A. VILLACRESES GÓMEZ. [Inclosure 3-Translation.] The American Arbitrator to the Minister of the Interior. OFFICE OF THE AMERICAN ARBITRATOR, Quito, March 17, 1913. MR. MINISTER: I have the honor to acknowledge receipt of your note No. 140 of the 13th instant, in which you have the kindness to inform me of the steps taken by the State's Attorney intended to promote the organization of an Arbitral Tribunal in order to pass upon the controversies which have arisen between the Government and the Guayaquil and Quito Railway Company. You add that the Attorney and the agent of the Company had placed obstacles in the way of having the oath referred to taken before the Supreme Court. Upon informing me that the Government had designated the Senate Chamber as the office of the Arbitral Tribunal in the beginning of its labors, you invite me to present myself at this hall for the installation of said Tribunal. I believe I can say to you, Mr. Minister, frankly, that nothing would give me greater pleasure than to see the immediate beginning of the labors for which I came expressly from a long distance and underwent an arduous journey, believing that the Tribunal formed by the delegates of two Presidents would act without delay. Before arriving in Ecuador I could not imagine any difficulty or ambiguity in the clear interpretation of the clause by which the contracting parties agreed to resort to arbitration as the sole means for deciding all controversies which might arise between them. The representatives of both parties now assure me that difficulties have arisen relating to the character of the Tribunal which the Governments of the United States and of Ecuador have endeavored to start aright. The conversation which took place in the Ministry last Monday to which you refer in your kind communication, gave me the impression that no real divergence existed between the desires and intentions of the representatives of the parties; that, as I had the opportunity of stating to you at your home the evening of the same day, it was a question merely of words and of finding a satisfactory formula which might enclose the purposes of the parties which really are not antagonistic. I still hope that the bases for the submission of the controversies will be found before long in the good-will of the parties, so that in this manner the prompt solution may be arrived at of a problem which cannot but present in the future new and more serious difficulties to the Ecuadorean nation and to this public utility, which should measure up to the growing necessities of the country. I have delayed in answering this note, in the belief and hope that during these days I would receive the pleasing announcement of an arrangement of the question pending in regard to said bases. Night before last the Chargé d'Affaires of the United States informed me of the contents of the note of the Ministry of Foreign Relations of the 14th instant, which appears to indicate the same status which existed on Monday, the 10th instant. The reply which the Honorable Mr. Bingham made to that note of the Ministry has as an object the assisting of the parties in so far as possible to come to an understanding without further delay and set forth the points which, without apparent reason, have appeared, under certain aspects, as stumbling blocks, when in reality that nature should not be given to them. As unfortunately, dear Mr. Minister, these doubts have arisen regarding the scope and nature of the arbitration, it appears to me that the interests of the parties would be better served and that future difficulties would be avoided by arriving at once at an agreement (which does not appear to be difficult) which may make clear the relations established by the contract in this regard and may provide a ground of mutual understanding. I hope that your clear mind may deigu to work to the end that the Tribunal may begin its labors without delay, or that the parties may decide with equal promptness to appeal directly to another means for fixing and securing their respective rights. I write you thus privately with the strong hope of being able to register very soon a definite decision in regard to the present situation, and in order to tell you that I must therefore write to the Second Judge of Letters, informing him that various questions with regard to the organization of the Arbitral Tribunal, the elucidation of which properly belongs to diplomacy, are now being discussed officially, and that for this reason it is not possible for me to recognize his jurisdiction in the matter. I am [etc.] HENRY L. JANES. [Inclosure 4-Translation.] The American Arbitrator to the Judge of Letters. OFFICE OF THE AMERICAN ARBITRATOR, HONORABLE SIR: I have the honor to acknowledge receipt of the note dated the fifteenth instant, addressed to me by the Court, in which it is said that I have been ordered to take possession of the office of Arbitrator; and in order that this proceeding may be put into effect, day and hour being fixed, it is added that I make it known whether I am ready to take the prescribed oath before you as the Ecuadorean authority designated by the law and procedure of Ecuador to intervene in giving arbitrators possession of their offices. In view of the fact that the Charge d'Affaires of the United States of America has informed me that he is now in communication with the Minister of Foreign Relations of Ecuador in regard to matters concerning the immediate organization of the Arbitral Tribunal, with the view of cooperating in so far as possible and proper towards this much-desired end, you will perceive that the only correct course which I can now follow is to await the result of this diplomatic exchange of ideas. Naturally, I can only send you the above in a very private manner for your information, without accepting nor entering into discussion regarding your jurisdiction in the matter, upon which, of course, it is not within my province to I am [etc.] pass. [Inclosure 5- Translation.] HENRY L. JANES. No. 179.1. The Minister of the Interior to the American Arbitrator. MINISTRY OF THE INTERIOR, MR. HENRY JANES: I received your private communication dated the 17th of the present month, which you were pleased to address to me in reply to my note No. 140 of the 13th instant; and I permit myself to state to you that, while I applaud the desire which you make known to me, to begin the labors for which you expressly came from a long distance and after a rather weary journey, I regret, at the same time, that the objection of the Guayaquil and Quito Railway Company to proceed in accordance with that which we had agreed upon, and your fear, made known to the Chargé d'Affaires of the United States of America, that there might be error in procedure, should be the cause of the delay in beginning the labors of the Arbitrators, a delay which is contrary to the earnest desires of the Government of Ecuador and causes the latter great injuries. Clause 27 of the Contract of June 14, 1897 is the authority by virtue of which the President of Ecuador and that of the United States have proceeded to name respective Arbitrators to pass upon the controversies or disagreements which might arise between the two contracting parties; and the tenor of this clause is so clear that, in truth, there is nothing which forbids interpreting it in accordance with its literal tenor, which explains, at the same time, the manifest intention of the contracting parties. The railroad company finds no obscurity whatever in the meaning of said clause, but desires, as I made known to you, that it be amplified by introducing a declaration relating to the finality of the arbitral award, a declaration which it is impossible for me to make, for the incontrovertible reason, which also I made known to you, that it is not within my province to add to nor to modify the contract under pretext of interpreting it. If, having in mind the nature of the arbitration and its antecedents, the arbitral award is judged to be final, the parties do not have to so declare it; but if, by virtue of those same considerations, it is believed that it may be appealable, neither the representatives of the Company nor this Ministry would have the authority to declare the contrary. But this unfounded pretension of the Company is not, in my judgment, any reason why you should delay taking the oath, which you yourself consider indispensable in order that the Arbitrators may begin to discharge their functions. I permit myself to call the attention of your enlightened and upright discernment to the fact that an error of judgment would be incurred by affirming that the Arbitral Tribunal is formed by the Delegates of two Presidents, that of Ecuador and that of the United States, if it should be desired to attribute to the delegation any characteristics of dependence upon those who are considered as delegators. Both you and Dr. Baquerizo have been named by the respective Presidents, by virtue of the powers which belong to them by Clause 27 of the Contract of June 14, 1897: the Presidents have not accepted the charge of Arbifrators, and for this reason each one of them has named the respective Arbltator in order that the latter may pass upon all difficulties between the contracting parties; and by virtue of these antecedents your actuation as Arbitrator .s not subject to the President of the United States nor to the hindrances placed by the railway company, as you intelligently explained to me in the agreeable conversation to which you refer in your esteemed note. If you should discharge the duties of arbitro arbitrador or amiable compositeur, under shelter of that independence, seeking the truth and guided by the |