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«German industrial charges law (Germany, Reparation Commission) 28 December 1925 VOLUME II pp. 745-752 NATIONS UNIES - UNITED NATIONS Copyright (c) ...»

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REPORTS OF INTERNATIONAL

ARBITRAL AWARDS

RECUEIL DES SENTENCES

ARBITRALES

German industrial charges law (Germany, Reparation Commission)

28 December 1925

VOLUME II pp. 745-752

NATIONS UNIES - UNITED NATIONS

Copyright (c) 2006

XV.

GERMAN INDUSTRIAL CHARGES LAW K

PARTIES: Germany, Reparation Commission.

SPECIAL AGREEMENT: § 69 of German Statute of August 30,1924.

ARBITRATOR: Marcus Wallenberg (Sweden).

AWARD: Stockholm, December 28, 1925.

Should the German Public Law Mortgage of 1924 apply to industrial property acquired after September 1924?—Interpretation of German Statute.—Importance of international and national "Preparatory Work".

—Importance of object aimed at in a treaty, in determining its interpretation.

For bibliography, index and tables, see Volume III.

Agreement.

GERMAN "INDUSTRIAL CHARGES LAW" OF AUGUST 30th, 1924.

Arbitration.

§ 69. — (1) Any dispute which may arise between the Government of the Reich or the Bank, on the one hand, and the Reparation Commission or the Trustee, on the other hand, concerning the interpretation of this law, or the legality, appropriateness or fairness of any measure taken or to be taken in virtue of these provisions, shall be decided by an arbitrator without right of appeal. The arbitrator shall be appointed jointly by the Government of the Reich and the Reparation Commission as soon as this law

•comes into force and for a period of not less than five years. Failing agreement as to the choice of the arbitrator, he shall be appointed by the President of the Permanent Court of International Justice. If the arbitrator is prevented from giving a decision in a particular case, an arbitrator shall be appointed for that case in accordance with the same procedure.

(2) A decision may be given by a single arbitrator; he can also require the appointment of two further arbitrators to be nominated by the parties concerned.

(3) The arbitration clause contained in paragraph 1 extends, in particular, to disputes referred to in §§ 8, 42, 48 and 55, paragraph 3.

ARBITRAL AWARD IN THE DISPUTE BETWEEN THE GERMAN

GOVERNMENT, ON THE ONE SIDE, AND THE TRUSTEE

FOR THE GERMAN INDUSTRIAL DEBENTURES,

ON THE OTHER SIDE,

REGARDING THE EXTENT OF THE PUBLIC LAW MORTGAGE, CREATED BY THE

INDUSTRIAL CHARGES LAW OF AUGUST 30, 1924 1.

Rendered December 28, 1925, ai! Stockholm.

BY MARCUS WALLENBERG.

Chosen arbitrator by virtue of § 69 of the mentioned law.

Through identical letters of June 22, 1925, the German Government, through the Ministerof National Economics, and the Trustee for the German Industrial Debentures have chosen the undersigned, Marcus Wallenberg, as the arbitrator, according to § 69 of the Industrial Charges Law of August 30. 1924, and have submitted for decision a divergence of opinion that has arisen between them regarding the correct interpretation of certain dispositions of the law in question.

Translation of American Journal of International Law, 1926, p. 370.

748 EXTENT OF THE PUBLIC LAW MORTGAGE

The questions of dispute are as follows:

Ob die Hypothek des ôffentlichen Whether the mortgage of public Rechtes auf den Grundstiicken und law on immovable property and gleichgestellten Rechten eines der equivalent rights of a concern, Industriebelastung gemàss dem ge- subjected to the industrial charges nannten Gesetze unterliegenden according to the mentioned law, Unternehmens bloss auf den Grund- encumbers only the immovable stiicken und gleichgestellten Rech- property and equivalent rights len, welche am 1. September 1924 belonging to the business capital zuin Betriebsvermôgen gehoren, {Betriebsvermôgen) on September 1, lastet, oder ob die Hypolhek sich 1924, or whether the mortgage

iiberdies erstreckt: extends also :

(a) auf die Grundstiicke und (a) to the immovable property gleichgestellten Rechte, welche seit and equivalent rights which, since dem 1. September 1924 dem Be- September 1, 1924, have been added triebsvermôgen eines der Industrie- to the business capital (Betriebsverbelastung unterliegenden Unterneh- môgen) of a concern subjected to the mens zugewachsen sind oder ihm industrial charges, or might be kunftig zuwachsen werden, added in future, (b) auf die Grundstiicke und (b) to the immovable property gleichgestellten Rechte, welche zum and equivalent rights belonging to Betriebsvermôgen eines anlàsslich the business capital (Betriebsverder ersten Umlegung freigebliebe- môgen) of a concern exempted at the nen Unternehmens oder eines neuer- time of the first repartition, or to a richteten Unternehmens gehôren, newly created concern as soon as sobald diese Unternehmungen in these enterprises become in time der Folge der Industriebelastung subjected to the industrial charges.





unterworfen werden.

The Trustee for the Industrial Debentures has, in a memorandum of July 15, 1925, expressed his opinion and proposed that the submitted questions be answered in the affirmative and it be declared that the public law mortgage extends to the immovable property and equivalent rights as defined in (a) and (b).

The German Government stated its viewpoint in a written reply of August 26, 1925, and proposed that the questions under (a) and (b) be answered in the negative.

On September 30, 1925, the Trustee gave a written answer to the reply of the German Government.

Finally the two parties have made it known, the German Government in a letter of November 7, 1925, and the Trustee in a communication of November 19, 1925, that they had no intention of giving any further opinions in this matter.

The Arbitrator renders the following AWARD.

The public law mortgage extends also to the immovable property and equivalent rights which have been mentioned in sections (a) and (b) of the question submitted for decision.

EXPOSÉ.

From an examination of the text of the law it is seen that § 1, paragraph 1, sentence 2, contains a clear and explicit regulation to the effect that the

EXTENT OF THE PUBLIC L A W MORTGAGE 749

charge imposed upon industry must first of all be guaranteed by a mortgage of the public law. No exception is given to this rule, at least not in this sentence. Neither does the wording of the regulation give any cause for assuming that exceptions might be expected later in the law. The assertion made in this respect by the German side is not correct. The reference quoted "in conformity to this law"' (nach Massgabe dieses Gesetzes) does not occur in the second sentence of § 1, paragraph 1. but in its first sentence, in which is stated what persons engaged in industrial and commercial concerns are affected by the "personal" charges.

On the German side it is, however, maintained that an exception to the regulation mentioned in § 1, paragraph 1, sentence 2, is established in § 41,

in the sentence which reads:

Gehoren zum Betriebsvermogen If any domestic (inldndisch) immoveines belasteten Unternehmers in- able property, etc., belongs to the làndische Grundstucke etc., so business capital (Betriebsvermogen) of entsteht an ihnen im Zeitpunkt des the encumbered entrepreneur there Inkrafttretens dieses Gesetzes zur accrues to it, with the date of the Sicherung fiir die Anspriiche auf die enforcement of this law, the public Jahresleistungen an Zinsen und charge [pffentliche Last) as guaranty Tilgungsbetràgen die ôffentliche on the claims for the annual payLast, ment of interests and amounts of amortization.

On the German side they wish to interpret this provision in the sense that, from the regulation that immovable property, etc., is encumbered by the public charge on the day of the enforcement of the law, it follows that immovable property, etc., which did not belong to the business capital {Betriebsvermogen) of an encumbered entrepreneur on the day in question, can not be affected later by the public charge.

Objections can be raised against this interpretation.

One might say, first of all, that the wording of the provision gives cause to assume that its primary purpose was certainly not to establish the principle that the public charge should be limited to immovable property which, on the day of the enforcement of the law, belonged to the encumbered industry.

As the wording reads, it allows one 16 assume that the primary purpose of the provision is partly to define more precisely what kinds of property belonging to the business capital should become the object of public charge, also partly to prevent that immovable property or equivalent property, which at the time of the enforcement of the law belonged to an encumbered entrepreneur, from being withdrawn from the public charge through later transactions. For a provision for the later purpose there could, without doubt, be a reason, in so far as it could be foreseen that some time would elapse between the enforcement of the law and the time when the amount to be charged to every entrepreneur would be determined.

There arises, however, the question whether the quoted provision in § 41, paragraph 1, does not, after all, bring about the same effect as maintained by the German side, although its primary purpose is a different one. In support of this opinion the German side has set forth that there is no provision regarding the time at which the public charge should affect immovable property which has been acquired after the enforcement of the law, or which belongs to the business capital of an entrepreneur who has not taken part in the first repartition [Umlage), but has been made to take part in a later one.

750 EXTENT OF THE PUBLIC LAW MORTGAGE

It is correct that there is no express provision regarding the time at which the public charge shall affect immovable property of the category just mentioned. But, on the other hand, it cannot be maintained that the absence of a definite provision makes it impossible to draw conclusions from the law for that condition to which the existing definite provision is not applicable.

If the provision in § 41, paragraph 1, had been lacking there would certainly not have'been created a gap which would have made the functioning of the law impossible. Since the mortgage has been made a public charge, and since the entry in the register of landed property (Grundbuch) is not necessary for its occurrence, doubtless, in the absence of a provision in § 41, paragraph 1, all immovable property belonging to entrepreneurs who are subject to the "personal charge", would also have been affected by the public charge at the moment when the "personal charge" would have affected the encumbered entrepreneur. The fact that for special reasons a certain period of time has been fixed, as has been the case, does not prevent the application of the mentioned principle within the sphere for which the special provision in § 41, paragraph 1, does not apply. That it is possible for divergencies of opinion to arise regarding the moment at which the personal charge affects an entrepreneur, does not justify the conclusion that no rule on this subject can be derived from the law. There might be other reasons which would make necessary the deduction of such a rule from the law.

Since it is not impossible to draw from the remaining contents of the law conclusions regarding the moment for the beginning of the public charge on immovable property belonging to entrepreneurs who have not been affected before the new repartition, or regarding immovable property which has been acquired after the enforcement of the law by entrepreneurs who have taken part in the first repartition, one cannot with certainty, contrary to the provision in § 1, paragraph 1, sentence 2, conclude from the wording of § 41, paragraph 1, that immovable property, to which the provision given there is not applicable, is to be exempted from the public charge.

In the Opinion of the Experts it is said that the Committee is convinced that it is just and desirable to demand from German industry, as a contribution to the reparation payments, the sum of at least 5 milliards goldmark to be represented by obligations secured by first class mortgages which are to bring five per cent annual interest and one per cent amortization.

In a plan which the Committee has worked out regarding such industrial obligations it is stated that the obligations represent the liabilities of the individual enterprises which, as far as payment of capital, interest, and amortization-quota is concerned, should be secured by a first mortgage on investments and property of those enterprises issuing them (ausstellende Unternehmungen).

The Committee of Organization, which was charged to work out in detail the plan of the Committee of Experts, and which was also empowered to propose certain changes, emphasized in the exposé of its Law-Project that the entire wealth of the industrial enterprises must be considered as a guaranty and must give effective security, both in the form of a mortgage on property which, according to German legislation, could become the object of a mortgage, and, in case of bankruptcy, in the form of preference claims (Vorzugsrecht) on property objects which could not be encumbered with a mortgage.

The instructions of the Committee of Organization authorized it in case the Committee should find a concern too small to make the security (Bestellung) of a mortgage appear practical and desirable, to entirely exempt such

EXTENT OF THE PUBLIC LAW MORTGAGE 751

an enterprise from participation in the payment of the five milliards. Pursuant to this provision, the Committee believed that it should exclude in its project commercial, financial, and insurance enterprises. The Committee based this viewpoint on the fact that hypothecary securities were the safest, and that many of the enterprises of (he named categories offered only relatively unimportant securities of a hypothecary kind.



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