having regard to Articles 40 and 48 of the Statute, having regard to Article 62 of the Rules of Court,
Makes the following Order :
as regards the position of the proceedings :
Whereas the Royal Hungarian Government, by means of an Application dated December 1st, 1935, presented to and filed with the Registry of the Court on December 6th, 1935, has instituted proceedings before the Permanent Court of International Justice against the Royal Yugoslav Government in regard to three judgments rendered on 22 July 1935, by the Hungaro-Yugoslav Mixed Arbitral Tribunal under Nos. 749, 750 and 747 ;
"Article X.— Czechoslovakia, Yugoslavia and Roumania, of the one part, and Hungary, of the other part, agree to recognize, without any special agreement, a right of appeal to the Permanent Court of International Justice from all judgments on questions of jurisdiction or merits which may be given henceforth by theMixed Arbitral Tribunals in all proceedings other than those referred to in Article I of the present Agreement.
The right of appeal may be exercised by written application by either of the two Governments between which the Mixed Arbitral Tribunal is constituted, within three months from the notification to its Agent of the judgment of the said Tribunal."
Whereas the Hungarian Government, in support of its Application, adduces, secondly, Article XVII of Agreement II and Article 22 of Agreement III of Paris, which are as follows :
Agreement II. "Article XVII.— In the event of any difference as to the interpretation or application of the present Agreement and failing agreement between the Parties interested on the choice of a single arbitrator, any State interested shall be entitled to address itself, by written application, to the Permanent Court of International Justice, and shall not be barred by any decision of the Mixed Arbitral Tribunal under Article I of the present Agreement."
Agreement III. "Article 22.—In the event of any difference as to the interpretation or application of the present Agreement, and failing agreement between the Parties interested on the choice of a single arbitrator, any State interested shall be entitled to address itself, by written application, to the Permanent Court of International Justice."
Whereas the Hungarian Government, in its Application, adduces, lastly and in the alternative, the declarations made by Hungary and Yugoslavia accepting the Optional Clause of Article 36 of the Court’s Statute ;
Whereas, in regard thereto, while Hungary, on May 30th, 1934, renewed her acceptance of this clause for a period of five years as from August 13th, 1934, Yugoslavia, on May 16th, 1930, only accepted the clause for a period of five years as from November 24th, 1930 ; whereas, since this acceptance has not been renewed, Yugoslavia had ceased to be bound by the Optional Clause on December 6th, 1935, the date on which the Application of the Hungarian Government was filed ; and
Whereas the time-limits for the presentation of the documents of the written proceedings, after successive extensions, were so fixed that the time allowed to the Hungarian Government for the presentation of its Memorial expired on January 20th, 1936, and the time allowed to the Yugoslav Government for the presentation of its Counter-Memorial expired on March 5th, 1936 ;
Whereas the Hungarian Government, in the Memorial filed by it within the time-limit thus fixed, prays the Court :
"A. 1. To admit the appeal;
2. To adjudge and declare, as a matter of law, after admitting the appeal, preferably by way of revising the three judgments in question, that the Mixed Arbitral Tribunal has jurisdiction to adjudicate upon the claims of the Hungarian nationals, stating fully the reasons on which the judgment is based and requiring the Mixed Arbitral Tribunal to conform to such statement of reasons ;
B. Alternatively or cumulatively, as the Court may see fit:
1. To adjudge and declare, generally, how Agreements II and III of Paris are to be interpreted and applied, and to redress the situation created by the Yugoslav Government’s attitude, since that Government, either under its domestic legislation as portrayed in Article 11, paragraph 3, of its law of June 26th, 1931, or under an erroneous interpretation of that legislation by the administrative authorities—though alleged by it to be authorized by and in conformity with Agreements II and III of Paris— at present refuses to recognize in respect of all Hungarian nationals its obligation to pay the sums due to them in accordance with the national treatment applicable to them under its domestic legislation in respect of their lands expropriated in the course of its agrarian reform—extending to them an entirely new and unforeseen treatment discriminatory in character and not provided for in Agreements II and III of Paris—instead of only proceeding in this way in the case of Hungarian nationals who submitted claims in respect of the same lands before the Mixed Arbitral Tribunal and who have had their claims recognized by judgments of the Mixed Arbitral Tribunal against the Agrarian Fund, as laid down in Agreements II and III of Paris ;
2. To order the Kingdom of Yugoslavia, in particular :
(a) in its attitude and proceedings, strictly to conform to the interpretation and application of Agreements II and III,
(b) to make good the damage and refund the costs and expenses occasioned to Hungarian nationals by its present attitude and proceedings which are unwarranted by Agreements II and III of Paris ;
C. To adjudge and declare that the Kingdom of Yugoslavia is also under an obligation to indemnify the Government of the Kingdom of Hungary for all costs and expenses incurred by the latter in obtaining redress for its nationals for whose situation the Kingdom of Yugoslavia, in spite of warning, is responsible, including the cost and expenses of the present proceedings before the Court" ;
Whereas, within the time-limit fixed for the presentation of its Counter-Memorial, the Yugoslav Government filed a document entitled : "Counter-Memorial of the Yugoslav Government including the formal submission of an objection presented to the Court in the proceeding instituted by the Hungarian Government as an appeal from the three judgments Nos. 747, 749 and 750, rendered by the Hungaro-Yugoslav Mixed Arbitral Tribunal", and praying the Court :
"1. To adjudge and declare, before entering upon the merits, that the appeal of the Royal Hungarian Government against the three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal cannot be entertained and is contrary to Article X of Agreement II of Paris ;
2. To adjudge and declare, before entering upon the merits, that the request of the Royal Hungarian Government for a general interpretation by the Court of Agreements II and III of Paris cannot be entertained because the essential conditions laid down by Article XVII of Agreement II and Article 22 of Agreement III have not been fulfilled ;
3. Alternatively, to adjudge and declare that the appeal of the Hungarian Government under Article X of Agreement II is ill-founded, and to confirm the three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal ;
4. Alternatively, to adjudge and declare that the three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal are in accordance with the true interpretation of the Paris Agreements ;
5. To order the Royal Hungarian Government to refund to the Royal Yugoslav Government all costs and expenses incurred in the present proceedings" ;
Whereas, in an Order made on March 10th, 19361, under Article 38 of the Rules then in force, the Court—holding the first two submissions of the Yugoslav Government to be in the nature of preliminary objections—fixed April 3rd, 1936, as the date by which the Hungarian Government might present a written Statement of its observations and submissions
"To overrule the preliminary objections of the respondent State ;
To declare itself to have jurisdiction ;
To order the continuance of the proceedings on the merits" ;
Whereas the two Parties concerned have availed themselves of their right under Article 31 of the Statute each to nominate a judge to sit in the case ;
Whereas, at public hearings held by the Court on April 29th and 30th and May 1st, 4th, 5th and 6th, 1936, M. Stoykovitch, the Agent finally appointed by the Yugoslav Government, and M. Gajzago, the Agent appointed by the Hungarian Government, respectively presented the oral observations of the Parties upon the objections above mentioned ; whereas the Agent for the Hungarian Government in his oral statements maintained the submissions on the objections made in the Hungarian written Statement and the submissions on the merits made in the Hungarian Memorial ; whereas, for his part, the Agent for the Yugoslav Government also maintained as they stood the two submissions made by the Yugoslav Government as preliminary objections in its Counter-Memorial, including the formal submission of an objection on the proceeding instituted by the Hungarian Government ;
Whereas, at this stage in the proceedings, the Court must under Article 62, paragraph 5, of the Rules in force, either give its decision on the objection or join the objection to the merits ;
AS REGARDS THE PRELIMINARY OBJECTION :
Whereas it appears from the written statements and verbal explanations of the Parties that the Court is confronted with the two following objections :
(1) that the appeal of the Hungarian Government based on Article X of Agreement II of Paris cannot be entertained because, contrary to the contentions of the Hungarian Government, the cases forming the subject of the judgments appealed against are not, as required by Article X, cases other than those referred to in Article I of that Agreement and because the said judgments are not judgments on questions of jurisdiction or merits within the meaning of Article X ;
(2) that the request of the Hungarian Government based on Article XVII of Agreement II and Article 22 of Agreement III cannot be entertained because that Government has lodged an application with the Court without its first having
(1) joins the objections lodged by the Yugoslav Government to the merits in the proceedings instituted by the Application of the Hungarian Government filed with the Registry on 6 December 1935, and will adjudicate upon these objections and, if need be, upon the merits in one and the same judgment ;
(2) fixes as follows the further time-limits for the filing of the documents of the written proceedings :
(а) for the Reply by the Hungarian Government : July 3rd, 1936;
(b) for the Rejoinder by the Yugoslav Government : August 14th, 1936.
Done at the Peace Palace, The Hague, this twenty-third day of May, nineteen hundred and thirty-six, in three copies, one of which shall be placed in the Archives of the Court and the others shall be transmitted to the Royal Hungarian Government and to the Royal Yugoslav Government respectively.