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    Observation by M. Rabel

    68

    the Reparation Commission and Germany to hear disputes concerning the so-called Dawes Plan, gave, on March 24th, 1926, a decision having the force of res judicata as between Germany and Poland, to the effect that the payment of the 25 millions referred to is included in the annuities which, under the Dawes Plan, Germany has to pay to the Agent-General for Reparation Payments. As these annuities consist of fixed sums, the Polish Government’s contention was therefore designed to make the German Government—contrarily to the award of the Arbitral Tribunal of Interpretation—bear the burden of this claim, by causing it to lose the indemnity due for the dispossession of the Oberschlesische, which had been established by another international judgment, namely the Court’s Judgment No. 7.

    2. In the course of the proceedings leading up to Judgment No. 8, as well as those leading up to the present judgment, in spite of the invitations of the Applicant on the subject and notwithstanding the exhaustive statements made by both Parties on the question of set-off, the Polish Government has neither put forward specific claims to which it is entitled, nor said that it would not maintain its submission that judicial or extrajudicial set-off against the future judgment should be allowed.

    The German Government in the course of the proceedings has several times pressed that the Court should decide this question which, being the real cause of the breakdown of the diplomatic negotiations, is, in its opinion, a question of vital importance in this suit, and that, unless it were decided, the dispute concerning the Chorzow factory would not really be completely adjusted.

    3. The Court considers that it has not jurisdiction to pass upon this difference of opinion under Article 23 of the Geneva Convention.

    It should be observed that the terms of the judgment which dismisses the German claim in regard to the question of set-off in so far as they are based on the said opinion, do not seem to me to have any bearing on claims directly seeking judgment for an actual payment in money. For the Court, having decided in its judgment that the said Article 23 of the Geneva Convention gives it jurisdiction to determine the form and

    69

    method of the reparation due, seems undoubtedly to cover, in this definition of its jurisdiction the question whether, in this case, a money indemnity should be actually paid in money or in other values.

    4. The judgment deals rather with the abstract question raised by the Applicant as to whether and under what conditions a respondent condemned by a judgment of the Court to pay a certain sum, may put forward a counter-claim to be set off against this obligation. This question also seems to me to enter into the present proceedings and not to relate to a point necessarily distinct from them, such as should only be taken at a subsequent stage.

    A judgment imposing a penalty creates an obligation and lays down in what that obligation consists. In a system of municipal law, the judge may and should confine himself to certain observations and technical points, which observations may be read in the light of relevant municipal legislation. Thus municipal law will define what is meant by a payment which the défendent is ordered to make and in particular whether and under what conditions the setting-off of a counterclaim is equivalent to payment in money of the judgment debt. If, on the other hand, in an international case, the Parties are at issue as to the action to be taken by the defendent in complying with the judgment, it appears to me that the nature of this action must be defined in the judgment in order to avoid any possible uncertainty.

    As regards the other conditions necessary for the granting of the claim in question, I will merely point out that in my opinion they also are fulfilled in the present case.

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