COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUETE: 1962)
(BELGIQUE c. ESPAGNE)
DEUXIEME PHASE

ARRET DU 5 FEVRIER 1970

1970

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM y. SPAIN)
SECOND PHASE

JUDGMENT OF 5 FEBRUARY 1970
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
arrêt, C.I.J. Recueil 1970, p. 3.

Official citation:

Barcelona Traction, Light and Power Company, Limited,
Judgment, I.C.J. Reports 1970, p. 3.

Sales number 9 7

INTERNATIONAL COURT OF JUSTICE
YEAR 1970

5 February 1970

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)
SECOND PHASE

Question of admissibility— Capacity of Applicant Government to act.

Claim brought on behalf of natural and juristic persons alleged to be share-
holders in foreign limited liability company and based on allegedly unlawful
measures taken against the company—Nature of corporate entities under mu-
nicipal law generally—Distinction between injury to rights of company and
injury to direct rights of shareholders— Distinction between rights and interests—
No injury to shareholders’ direct rights alleged—Injury to shareholders’ interests
resulting from injury to rights of company insufficient to found claim.

Diplomatic protection—General principle of protection of company by com-
pany’s national State—Company incorporated in third State, admitted by both
Parties to be company’s national State—Possible circumstances involving
exceptions to general principle: case of disappearance of company; case of
company’s national State lacking capacity to act—Cessation of protection by
company’s national State not equivalent to legal impediment—lIrrelevance of
non-existence of link of compulsory jurisdiction between company’s national
State and Respondent Government.

Foreign investments as part of State’s national economic resources—Injury
thereto—No responsibility in absence of injury to recognized rights of State.

Possible relevance of considerations of equity—Right of protection in respect of
shareholders’ interests if not possible to apply general principle—Practical
difficulties of any system of concurrent or secondary rights—Equitable considera-
tions not applicable if company’s national State able to act.

1970
5 February
General Lis
No. 50
BARCELONA TRACTION (JUDGMENT) 4

JUDGMENT

President: President BUSTAMANTE Y RIVERO; Vice-President KORETSKY; Judges
Sir Gerald FITZMAURICE, TANAKA, JESSUP, MORELLI, PADILLA
NERVO, FORSTER, GROS, AMMOUN, BENGZON, PETREN, LACHS,
ONYEAMA; Judges ad hoc ARMAND-UGON, RIPHAGEN; Registrar
AQUARONE. ;

In the case concerning the Barcelona Traction, Light and Power Company,
Limited (New Application: 1962),

between

the Kingdom of Belgium,
represented by

Chevalier Y. Devadder, Legal Adviser to the Ministry of Foreign Affairs and
External Trade,

as Agent,

Mr. H. Rolin, Professor emeritus of the Faculty of Law of the Free University
of Brussels and Advocate at the Brussels Court of Appeal,

as Co-Agent and Counsel,
assisted by

Mrs. S. Bastid, Professor in the Faculty of Law of the University of Paris

Mr. J. Van Ryn, Professor in the Faculty of Law of the Free University of
Brussels and Advocate at the Belgian Court of Cassation,

Mr. M. Grégoire, Advocate at the Brussels Court of Appeal,

Mr. F. A. Mann, Honorary Professor in the Faculty of Law of the University
of Bonn, Solicitor of the Supreme Court, England,

Mr. M. Virally, Professor in the Faculties of Law of the Universities of
Geneva and Strasbourg and at the Graduate Institute of International
Studies in Geneva,

Mr. E. Lauterpacht, Lecturer in the University of Cambridge, Member of
the English Bar,

Mr. A. S. Pattillo, Q.C., Member of the Ontario Bar (Canada),

Mr. M. Slusny, Lecturer in the Faculty of Law of the Free University of
Brussels and Advocate at the Brussels Court of Appeal,

Mr. P. Van Ommeslaghe, Professeur extraordinaire in the Faculty of Law
of the Free University of Brussels and Advocate at the Brussels Court of
Appeal,

Mr. M. Waelbroeck, Professeur extraordinaire in the Faculty of Law of the
Free University of Brussels,

Mr. J. Kirkpatrick, Lecturer in the Faculty of Law of the Free University of
Brussels and Advocate at the Brussels Court of Appeal,

as Counsel,
Mr. H. Bachrach, Member of the New York State and Federal Bars,

as Assistant Counsel and Secretary,
BARCELONA TRACTION (JUDGMENT) 5

and by

Mr. L. Prieto-Castro, Professor in the Faculty of Law of the University of
Madrid,

Mr. M. Olivencia Ruiz, Professor in the Faculty of Law of the University of
Seville,

Mr. J. Girén Tena, Professor in the Faculty of Law of the University of
Valladolid,

as Expert-Counsel in Spanish Law,
and

the Spanish State,

represented by

Mr. J. M. Castro-Rial, Professor, Legal Adviser to the Ministry of Foreign
Affairs,

as Agent,

assisted by

Mr. R. Ago, Professor of International Law in the Faculty of Law of the
University of Rome,

Mr. M. Bos, Professor of International Law in the Faculty of Law of the
University of Utrecht,

Mr. P. Cahier, Professor of International Law at the Graduate Institute of
International Studies in Geneva,

Mr. J. Carreras Llansana, Professor in the Faculty of Law of the University
of Navarre,

Mr. F. de Castro y Bravo, Professor, Legal Adviser to the Ministry of
Foreign Affairs,

Mr. J. M. Gil-Robles Quifiones, Professor in the Faculty of Law of the
University of Oviedo,

Mr. M. Gimeno Fernandez, Judge of the Supreme Court, Madrid,

Mr. P. Guggenheim, Professor of International Law at the Graduate Institute
of International Studies in Geneva,

Mr. E. Jiménez de Aréchaga, Professor of International Law in the Faculty
of Law of the University of Montevideo,

Mr. A. Malintoppi, Professor of International Law in the Faculty of Political
Science of the University of Florence,

Mr. F. Ramirez, Secretary-General of the Spanish Institute of Foreign
Exchange, Madrid,

Mr. P. Reuter, Professor in the Faculty of Law of the University of Paris,

Mr. J. M. Rivas Fresnedo, Inspector and Expert, Ministry of Finance,
Madrid,

Mr. J. L. Sureda Carrién, Professor in the Faculty of Law of the University
of Barcelona,

Mr. D. Triay Moll, Inspector and Expert, Ministry of Finance, Madrid,

Mr. R. Uria Gonzalez, Professor in the Faculty of Law of the University
of Madrid,

Sir Humphrey Waldock, C.M.G., O.B.E., Q.C., Chichele Professor of
Public International Law in the University of Oxford,

Mr. P. Weil, Professor in the Faculty of Law of the University of Paris,

as Counsel or Advocates,
BARCELONA TRACTION (JUDGMENT) 6

and by
Mr. J. M. Lacleta y Muñoz, Secretary of Embassy,
Mr. L. Martinez-Agullé, Secretary of Embassy,

as Secretaries,

THE COURT,
composed as above,

delivers the following Judgment:

1. In 1958 the Belgian Government filed with the International Court of
Justice an Application against the Spanish Government seeking reparation for
damage allegedly caused to the Barcelona Traction, Light and Power Com-
pany, Limited, on account of acts said to be contrary to international law
committed by organs of the Spanish State. After the filing of the Belgian
Memorial and the submission of preliminary objections by the Spanish Govern-
ment, the Belgian Government gave notice of discontinuance of the proceed-
ings, with a view to negotiations between the representatives of the private
interests concerned. The case was removed from the Court’s General List on
10 April 1961.

2. On 19 June 1962, the negotiations having failed, the Belgian Government
submitted to the Court a new Application, claiming reparation for the damage
allegedly sustained by Belgian nationals, shareholders in the Barcelona Trac-
tion company, on account of acts said to be contrary to international law
committed in respect of the company by organs of the Spanish State. On
15 March 1963 the Spanish Government raised four preliminary objections
to the Belgian Application.

3. By its Judgment of 24 July 1964, the Court rejected the first two prelimi-
nary objections. The first was to the effect that the discontinuance, under
Article 69, paragraph 2, of the Court’s Rules, of previous proceedings relative
to the same events in Spain, disentitled the Belgian Government from bringing
the present proceedings. The second was to the effect that even if this was
not the case, the Court was not competent, because the necessary jurisdictional
basis requiring Spain to submit to the jurisdiction of the Court did not exist.
The Court joined the third and fourth objections to the merits. The third was
to the effect that the claim is inadmissible because the Belgian Government
lacks any jus standi to intervene or make a judicial claim on behalf of Belgian
interests in a Canadian company, assuming that the Belgian character of
such interests were established, which is denied by the Spanish Government.
The fourth was to the effect that even if the Belgian Government has the nec-
essary jus standi, the claim still remains inadmissible because local remedies in
respect of the acts complained of were not exhausted.

4. Time-limits for the filing of the further pleadings were fixed or, at the
request of the Parties, extended by Orders of 28 July 1964, 11 June 1965,
12 January 1966, 23 November 1966, 12 April 1967, 15 September 1967 and
24 May 1968, in the last-mentioned of which the Court noted with regret that
the time-limits originally fixed by the Court for the filing of the pleadings had
not been observed, whereby the written proceedings had been considerably
prolonged. The written proceedings finally came to an end on 1 July 1968
with the filing of the Rejoinder of the Spanish Government.
BARCELONA TRACTION (JUDGMENT) 7

5. Pursuant to Article 31, paragraph 3, of the Statute, Mr. Willem Riphagen,
Professor of International Law at the Rotterdam School of Economics, and
Mr. Enrique C. Armand-Ugon, former President of the Supreme Court of
Justice of Uruguay and a former Member of the International Court of Justice,
were chosen by the Belgian and Spanish Governments respectively to sit as
judges ad hoc:

6. Pursuant to Article 44, paragraph 2, of the Rules of Court, the pleadings
and annexed documents were, after consultation of the Parties, made available
to the Governments of Chile, Peru and the United States of America. Pursuant
to paragraph 3 of the same Article, the pleadings and annexed documents
were, with the consent of the Parties, made accessible to the public as from
10 April 1969.

7. At 64 public sittings held between 15 April and 22 July 1969 the Court
heard oral arguments and replies by Chevalier Devadder, Agent, Mr. Rolin,
co-Agent and Counsel, Mrs. Bastid, Mr. Van Ryn, Mr. Grégoire, Mr. Mann,
Mr. Virally, Mr. Lauterpacht, and Mr. Pattillo, Counsel, on behalf of the
Belgian Government and by Mr. Castro-Rial, Agent, Mr. Ago, Mr. Carreras
Mr. Gil-Robles, Mr. Guggenheim, Mr. Jiménez de Aréchaga, Mr. Malintoppi,
Mr. Reuter, Mr. Sureda, Mr. Uria, Sir Humphrey Waldock and Mr. Weil,
Counsel or Advocates, on behalf of the Spanish Government.

8. The Barcelona Traction, Light and Power Company, Limited, is a
holding company incorporated in 191] in Toronto (Canada), where it has
its head office. For the purpose of creating and developing an electric
power production and distribution system in Catalonia (Spain), it
formed a number of operating, financing and concession-holding
subsidiary companies. Three of these companies, whose shares it owned
wholly or almost wholly, were incorporated under Canadian law and had
their registered offices in Canada (Ebro Irrigation and Power Company,
Limited, Catalonian Land Company, Limited and International Utilities
Finance Corporation, Limited); the others were incorporated under
Spanish law and had their registered offices in Spain. At the time of the
outbreak of the Spanish Civil War the group, through its operating
subsidiaries, supplied the major part of Catalonia’s electricity require-
ments.

9. According to the Belgian Government, some years after the First
World War Barcelona Traction’s share capital came to be very largely
held by Belgian nationals—natural or juristic persons—and a very high
percentage of the shares has since then continuously belonged to Belgian
nationals, particularly the Société Internationale d’Energie Hydro-
Electrique (Sidro), whose principal shareholder, the Société Financiére de
Transports et d’Entreprises Industrielles (Sofina), is itself a company in
which Belgian interests are preponderant. The fact that large blocks of
shares were for certain periods transferred to American nominees, to

8
BARCELONA TRACTION (JUDGMENT) 8

protect these securities in the event of invasion of Belgian territory
during the Second World War, is not, according to the Belgian conten-
tion, of any relevance in this connection, as it was Belgian nationals,
particularly Sidro, who continued to be the real owners. For a time the
shares were vested in a trustee, but the Belgian Government maintains
that the trust terminated in 1946. The Spanish Government contends, on
the contrary, that the Belgian nationality of the shareholders is not proven
and that the trustee or the nominees must be regarded as the true share-
holders in the case of the shares concerned.

10. Barcelona Traction issued several series of bonds, some in pesetas
but principally in sterling. The issues were secured by trust deeds, with
the National Trust Company, Limited, of Toronto as trustee of the
sterling bonds, the security consisting essentially of a charge on bonds
and shares of Ebro and other subsidiaries and of a mortgage executed by
Ebro in favour of National Trust. The sterling bonds were serviced out
of transfers to Barcelona Traction effected by the subsidiary companies
operating in Spain.

11. In 1936 the servicing of the Barcelona Traction bonds was suspended
on account of the Spanish civil war. In 1940 payment of interest on the
peseta bonds was resumed with the authorization of the Spanish exchange
control authorities (required because the debt was owed by a foreign
company), but authorization for the transfer of. the foreign currency
necessary for the servicing of the sterling bonds was refused and those
interest payments were never resumed.

12. In 1945 Barcelona Traction proposed a plan of compromise which
provided for the reimbursement of the sterling debt. When the Spanish
authorities refused to authorize the transfer of the necessary foreign
currency, this plan was twice modified. In its final form, the plan provided,
inter alia, for an advance redemption by Ebro of Barcelona Traction
peseta bonds, for which authorization was likewise required. Such
authorization was refused by the Spanish authorities. Later, when the
Belgian Government complained of the refusals to authorize foreign
currency transfers, without which the debts on the bonds could not be
honoured, the Spanish Government stated that the transfers could not
be authorized unless it was shown that the foreign currency was to be
used to repay debts arising from the genuine importation of foreign
capital into Spain, and that this had not been established.

13. On 9 February 1948 three Spanish holders of recently acquired
Barcelona Traction sterling bonds petitioned the court of Reus (Province
of Tarragona) for a declaration adjudging the company bankrupt, on
account of failure to pay the interest on the bonds. The petition was
admitted by an order of 10 February 1948 and a judgment declaring the
company bankrupt was given on 12 February. This judgment included
provisions appointing a commissioner in bankruptcy and an interim

9
BARCELONA TRACTION (JUDGMENT) 9

receiver and ordering the seizure of the assets of Barcelona Traction,
Ebro and Compafiia Barcelonesa de Electricidad, another subsidiary
company.

14. The shares of Ebro and Barcelonesa had been deposited by Bar-
celona Traction and Ebro with the National Trust company of Toronto
as security for their bond issues. All the Ebro and the Barcelonesa ordi-
nary shares were held outside Spain, and the possession taken of them
was characterized as “mediate and constructive civil possession”, that
is to say was not accompanied by physical possession. Pursuant to the
bankruptcy judgment the commissioner in bankruptcy at once dismissed
the principal management personnel of the two companies and during the
ensuing weeks the interim receiver appointed Spanish directors and
declared that the companies were thus “‘normalized”. Shortly after the
bankruptcy judgment the petitioners brought about the extension of the
taking of possession and related measures to the other subsidiary com-
panies.

15. Proceedings in Spain to contest the bankruptcy judgment and the
related decisions were instituted by Barcelona Traction, National Trust,
the subsidiary companies and their directors or management personnel.
However, Barcelona Traction, which had not received a judicial notice of
the bankruptcy proceedings, and was not represented before the Reus
court in February, took no proceedings in the courts until 18 June 1948.
In particular it did not enter a plea of opposition against the bankruptcy
judgment within the time-limit of eight days from the date of publication
of the judgment laid down in Spanish legislation. On the grounds that the
notification and publication did not comply with the relevant legal
requirements, the Belgian Government contends that the eight-day time-
limit had never begun to run.

16. Motions contesting the jurisdiction of the Reus court and of the
Spanish courts as a whole, in particular by certain bondholders, had a
suspensive effect on the actions for redress; a decision on the question
of jurisdiction was in turn delayed by lengthy proceedings brought by the
Genora company, a creditor of Barcelona Traction, disputing Barcelona
Traction’s right to be a party to the proceedings on the jurisdictional
issue. One of the motions contesting jurisdiction was not finally dismissed
by the Barcelona court of appeal until 1963, after the Belgian Application
had been filed with the International Court of Justice.

17. In June 1949, on an application by the Namel company, with the
intervention of the Genora company, the Barcelona court of appeal gave
a judgment making it possible for the meeting of creditors to be convened
for the election of the trustees in bankruptcy, by excluding the necessary
procedure from the suspensive effect of the motion contesting jurisdic-
tion. Trustees were then elected, and procured decisions that new shares
of the subsidiary companies should be created, cancelling the shares
located outside Spain (December 1949), and that the head offices of
Ebro and Catalonian Land should henceforth be at Barcelona and not

10
BARCELONA TRACTION (JUDGMENT) 10

Toronto. Finally in August 1951 the trustees obtained court authorization
to sell ‘‘the totality of the shares, with all the rights attaching to them,
representing the corporate capital” of the subsidiary companies, in the
form of the newly created share certificates. The sale took place by public
auction on 4 January 1952 on the basis of a set of General Conditions
and became effective on 17 June 1952. The purchaser was a newly
formed company, Fuerzas Eléctricas de Cataluña, S.A. (Fecsa), which
thereupon acquired complete control of the undertaking in Spain.

18. Proceedings before the court of Reus, various courts of Barcelona
and the Spanish Supreme Court, to contest the sale and the operations
which preceded or followed it, were taken by, among others, Barcelona
Traction, National Trust and the Belgian company Sidro as a shareholder
in Barcelona Traction, but without success. According to the Spanish
Government, up to the filing of the Belgian Application, 2,736 orders had
been made in the case and 494 judgments given by lower and 37 by
higher courts. For the purposes of this Judgment it is not necessary to go
into these orders and judgments.

19. After the bankruptcy declaration, representations were made to
the Spanish Government by the British, Canadian, United States and
Belgian Governments.

20. The British Government made representations to the Spanish
Government on 23 February 1948 concerning the bankruptcy of Bar-
celona Traction and the seizure of its assets as well as those of Ebro and
Barcelonesa, stating its interest in the situation of the bondholders
resident in the United Kingdom. It subsequently supported the representa-
tions made by the Canadian Government.

21. The Canadian Government made representations to the Spanish
Government in a series of diplomatic notes, the first being dated
27 March 1948 and the last 21 April 1952; in addition, approaches were
made on a less official level in July 1954 and March 1955. The Canadian
Government first complained of the denials of justice said to have been
committed in Spain towards Barcelona Traction, Ebro and National
Trust, but it subsequently based its complaints more particularly on
conduct towards the Ebro company said to be in breach of certain
treaty provisions applicable between Spain and Canada. The Spanish
Government did not respond to a Canadian proposal for the submission
of the dispute to arbitration and the Canadian Government subsequently
confined itself, until the time when its interposition entirely ceased, to
endeavouring to promote a settlement by agreement between the private
groups concerned.

22. The United States Government made representations to the
Spanish Government on behalf of Barcelona Traction in a note of 22 July
1949, in support of a note submitted by the Canadian Government the
previous day. It subsequently continued its interposition through the
diplomatic channel and by other means. Since references were made by the
United States Government in these representations to the presence of

11
BARCELONA TRACTION (JUDGMENT) 11

American interests in Barcelona Traction, the Spanish Government
draws the conclusion that, in the light of the customary practice of the
United States Government to protect only substantial American invest-
ments abroad, the existence must be presumed of such large American
interests as to rule out a preponderance of Belgian interests. The Belgian
Government considers that the United States Government was motivated
by a more general concern to secure equitable treatment of foreign invest-
ments in Spain, and in this context cites, inter alia, a note of 5 June 1967
from the United States Government.

23. The Spanish Government having stated in a note of 26 September
1949 that Ebro had not furnished proof as to the origin and genuineness
of the bond debts, which justified the refusal of foreign currency transfers,
the Belgian and Canadian Governments considered proposing to the
Spanish Government the establishment of a tripartite committee to
study the question. Before this proposal was made, the Spanish Govern-
ment suggested in March 1950 the creation of a committee on which, in
addition to Spain, only Canada and the United Kingdom would be
represented. This proposal was accepted by the United Kingdom and
Canadian Governments. The work of the committee led to a joint state-
ment of 11 June 1951 by the three Governments to the effect, inter alia,
that the attitude of the Spanish administration in not authorizing the
transfers of foreign currency was fully justified. The Belgian Government
protested against the fact that it had not been invited to nominate an
expert to take part in the enquiry, and reserved its rights; in the pro-
ceedings before the Court it contended that the joint statement of 1951,
which was based on the work of the committee, could not be set up
against it, being res inter alios acta.

24. The Belgian Government made representations to the Spanish
Government on the same day as the Canadian Government, in a note of
27 March 1948. It continued its diplomatic intervention until the rejection
by the Spanish Government of a Belgian proposal for submission to
arbitration (end of 1951). After the admission of Spain to membership in
the United Nations (1955), which, as found by the Court in 1964,
rendered operative again the clause of compulsory jurisdiction contained
in the 1927 Hispano-Belgian Treaty of Conciliation, Judicial Settlement
and Arbitration, the Belgian Government attempted further representa-
tions. After the rejection of a proposal for a special agreement, it decided
to refer the dispute unilaterally to this Court.

25. In the course of the written proceedings, the following submissions were
presented by the Parties:

12
BARCELONA TRACTION (JUDGMENT) 12

On behalf of the Belgian Government,
in the Application:
“May it please the Court

1. to adjudge and declare that the measures, acts, decisions and omis-
sions of the organs of the Spanish State described in the present Applica-
tion are contrary to international law and that the Spanish State is under
an obligation towards Belgium to make reparation for the consequential
damage suffered by Belgian nationals, natural and juristic persons,
shareholders in Barcelona Traction;

2. to adjudge and declare that this reparation should, as far as possible,
annul all the consequences which these acts contrary to international law
have had for the said nationals, and that the Spanish State is therefore
under an obligation to secure, if possible, the annulment of the adjudication
in bankruptcy and of the judicial and other acts resulting therefrom,
obtaining for the injured Belgian nationals all the legal effects which
should result for them from this annulment; further, to determine the
amount of the compensation to be paid by the Spanish State to the Belgian
State by reason of all the incidental damage sustained by Belgian nationals
as a result of the acts complained of, including the deprivation of en-
joyment of rights and the expenses incurred in the defence of their rights;

3. to adjudge and declare, in the event of the annulment of the con-
sequences of the acts complained of proving impossible, that the Spanish
State shall be under an obligation to pay to the Belgian State, by way of
compensation, a sum equivalent to 88 per cent. of the net value of the
business on 12 February 1948; this compensation to be increased by an
amount corresponding to all the incidental damage suffered by the Belgian
nationals as the result of the acts complained of, including the deprivation
of enjoyment of rights and the expenses incurred in the defence of their
rights”;

in the Memorial:

“May it please the Court

I. to adjudge and declare that the measures, acts, decisions and omis-
sions of the organs of the Spanish State described in the present Memorial
are contrary to international law and that the Spanish State is under an
obligation towards Belgium to make reparation for the consequential
damage suffered by Belgian nationals, natural and juristic persons,
shareholders in Barcelona Traction;

If. to adjudge and declare that this reparation should, as far as possible,
annul all the consequences which these acts contrary to international
law have had for the said nationals, and that the Spanish State is there-
fore under an obligation to secure, if possible, the annulment by adminis-
trative means of the adjudication in bankruptcy and of the judicial and
other acts resulting therefrom, obtaining for the said injured Belgian
nationals all the legal effects which should result for them from this
annulment; further, to determine the amount of the compensation to
be paid by the Spanish State to the Belgian State by reason of all the
incidental damage sustained by Belgian nationals as a result of the acts
complained of, including the deprivation of enjoyment of rights and the
expenses incurred in the defence of their rights;

13
BARCELONA TRACTION (JUDGMENT) 13

I. to adjudge and declare, in the event of the annulment of the con-
sequences of the acts complained of proving impossible, that the Spanish
State shall be under an obligation to pay to the Belgian State, by way of
compensation, a sum equivalent to 88 per cent. of the sum of $88,600,000
arrived at in paragraph 379 of the present Memorial, this compensation
to be increased by an amount corresponding to all the incidental da-
mage suffered by the said Belgian nationals as the result of the acts
complained of, including the deprivation of enjoyment of rights, the
expenses incurred in the defence of their rights and the equivalent in ca-
pital and interest of the amount of Barcelona Traction bonds held by
Belgian nationals and of their other claims on the companies in the group
which it was not possible to recover owing to the acts complained of”;

in the Reply:

“May it please the Court, rejecting any other submissions of the Spanish
State which are broader or to a contrary effect,

to adjuge and declare

(1) that the Application of the Belgian Government is admissible;

(2) that the Spanish State is responsible for the damage sustained by
the Belgian State in the person of its nationals, shareholders in Barcelona
Traction, as the result of the acts contrary to international law committed
by its organs, which led to the total spoliation of the Barcelona Traction
group;

(3) that the Spanish State is under an obligation to ensure reparation
of the said damage;

(4) that this damage can be assessed at U.S. $78,000,000, representing
88 per cent. of the net value, on 12 February 1948, of the property of
which the Barcelona Traction group was despoiled;

(5) that the Spanish State is, in addition, under an obligation to pay,
as an all-embracing payment to cover loss of enjoyment, compensatory
interest at the rate of 6 per cent. on the said sum of U.S. $78,000,000,
from 12 February 1948 to the date of judgment;

(6) that the Spanish State must, in addition, pay a sum provisionally
assessed at U.S. $3,800,000 to cover the expenses incurred by the Belgian
nationals in defending their rights since 12 February 1948;

(7) that the Spanish State is also liable in the sum of £433,821 repres-
enting the amount, in principal and interest, on 4 January 1952, of the
Barcelona Traction sterling bonds held by the said nationals, as well as
in the sum of U.S. $1,623,127, representing a debt owed to one of the
said nationals by a subsidiary company of Barcelona Traction, this sum
including lump-sum compensation for loss of profits resulting from the
premature termination of a contract;

that there will be due on those sums interest at the rate of 6 per cent.
per annum, as from 4 January 1952 so far as concerns the sum of £433,821,
and as from 12 February 1948 so far as concerns the sum of U.S. $1,623,127;
both up to the date of judgment;

(8) that the Spanish State is also liable to pay interest, by way of
interest on a sum due and outstanding, at a rate to be determined by

14
BARCELONA TRACTION (JUDGMENT) 14

reference to the rates generally prevailing, on the amount of compensation
awarded, from the date of the Court’s decision fixing such compensation
up to the date of payment;

(9) in the alternative to submissions (4) to (6) above, that the amount
of the compensation due to the Belgian State shall be established by
means of an expert enquiry to be ordered by the Court; and to place on
record that the Belgian Government reserves its right to submit in the
course of the proceedings such observations as it may deem advisable
concerning the object and methods of such measure of investigation;

(10) and, should the Court consider that it cannot, without an expert
enquiry, decide the final amount of the compensation due to the Belgian
State, have regard to the considerable magnitude of the damage caused
and make an immediate award of provisional compensation, on account
of the compensation to be determined after receiving the expert opinion,
the amount of such provisional compensation being left to the discretion
of the Court.”

On behalf of the Spanish Government,

in the Counter-Memorial :
“May it please the Court
to adjudge and declare

I. that the Belgian claim which, throughout the diplomatic correspond-
ence and in the first Application submitted to the Court, has always been
a claim with a view to the protection of the Barcelona Traction company,
bas not changed its character in the second Application, whatever the
apparent modifications introduced into it;

that even if the true subject of the Belgian claim were, not the Barcelona
Traction company, but those whom the Belgian Government characterizes
on some occasions as ‘Belgian shareholders’ and on other occasions as
‘Belgian interests’ in that company, and the damage allegedly sustained
by those ‘shareholders’ or ‘interests’, it would still remain true that the
Belgian Government has not validly proved either that the shares of the
company in question belonged on the material dates to ‘Belgian share-
holders’, or, moreover, that there is in the end, in the case submitted to
the Court, a preponderance of genuine ‘Belgian interests’;

that even if the Belgian claim effectively had as its beneficiaries alleged
‘shareholders’ of Barcelona Traction who were ‘Belgian’, or yet again
alleged genuine ‘Belgian interests’ of the magnitude which is attributed
to them, the general principles of international law governing this matter,
confirmed by practice which knows of no exception, do not recognize
that the national State of shareholders or ‘interests’, whatever their
number or magnitude, may make a claim on their behalf in reliance on
allegedly unlawful damage sustained by the company, which possesses the
nationality of a third State;

that the Belgian Government therefore lacks jus standi in the present
case;

II. that a rule of general international law, confirmed both by judicial
precedents and the teachings of publicists, and reiterated in Article 3
of the Treaty of Conciliation, Judicial Settlement and Arbitration of
19 July 1927 between Spain and Belgium, requires that private persons

15
BARCELONA TRACTION (JUDGMENT) 15

allegedly injured by a measure contrary to international law should have
used and exhausted the remedies and means of redress provided by the
internal Jegal order before diplomatic, and above all judicial, protection
may be exercised on their behalf;

that the applicability of this rule to the present case has not been disputed
and that the prior requirement which it lays down has not been satisfied;

Ill. that the organic machinery for financing the Barcelona Traction
undertaking, as conceived from its creation and constantly applied there-
after, placed it in a permanent state of latent bankruptcy, and that the
constitutional structure of the group and the relationship between its
members were used as the instrument for manifold and ceaseless operations
to the detriment both of the interests of the creditors and of the economy
and law of Spain, the country in which the undertaking was to carry on
all its business;

that these same facts led, on the part of the undertaking, to an attitude
towards the Spanish authorities which could not but provoke a fully
justified refusal to give effect to the currency applications made to the
Spanish Government;

that the bankruptcy declaration of 12 February 1948, the natural
outcome of the conduct of the undertaking, and the bankruptcy proceed-
ings which ensued, were in all respects in conformity with the provisions
of Spanish legislation on the matter; and that moreover these provisions
are comparable with those of other statutory systems, in particular Bel-
gian legislation itself;

that the complaint of usurpation of jurisdiction is not well founded
where the bankruptcy of a foreign company is connected in any way with
the territorial jurisdiction of the State, that being certainly so in the
present case;

that the Spanish judicial authorities cannot be accused of either one or
more denials of justice in the proper sense of the term, Barcelona Traction
never having been denied access to the Spanish courts and the judicial
decisions on its applications and appeals never having suffered unjustified
or unreasonable delays; nor is it possible to detect in the conduct of the
Spanish authorities the elements of some breach of international law other
than a denial of justice;

that the claim for reparation, the very principle of which is disputed
by the Spanish Government, is moreover, having regard to the circum-
stances of the case, an abuse of the right of diplomatic protection in
connection with which the Spanish Government waives none of its possible
rights;

IV. that, therefore, the Belgian claim is dismissed as inadmissible or,
if not, as unfounded”;

in the Rejoinder:
“May it please the Court
to adjudge and declare

that the claim of the Belgian Government is declared inadmissible or,
if not, unfounded.”

In the course of the oral proceedings, the following text was presented as
final submissions

16
BARCELONA TRACTION (JUDGMENT) 16

on behalf of the Belgian Government,

after the hearing of 9 July 1969:

“1. Whereas the Court stated on page 9 of its Judgment of 24 July 1964
that ‘The Application of the Belgian Government of 19 June 1962 seeks
reparation for damage claimed to have been caused to a number of Bel-
gian nationals, said to be shareholders in the Barcelona Traction, Light
and Power Company, Limited, a company under Canadian law, by the
conduct, alleged to have been contrary to international law, of various
organs of the Spanish State in relation to that company and to other
companies of its group’;

Whereas it was therefore manifestly wrong of the Spanish Government,
in the submissions in the Counter-Memorial and in the oral arguments
of its counsel, to persist in the contention that the object of the Belgian
claim is to protect the Barcelona Traction company;

2. Whereas Barcelona Traction was adjudicated bankrupt in a judg-
ment rendered by the court of Reus, in Spain, on 12 February 1948;

3. Whereas that holding company was on that date in a perfectly
sound financial situation, as were its subsidiaries, Canadian or Spanish
companies having their business in Spain;

4. Whereas, however, the Spanish Civil War and the Second World
War had, from 1936 to 1944, prevented Barcelona Traction from being
able to receive, from its subsidiaries operating in Spain, the foreign
currency necessary for the service of the sterling loans issued by it for the
financing of the group’s investments in Spain;

5. Whereas, in order to remedy this situation, those in control of Bar-
celona Traction agreed with the bondholders in 1945, despite the opposi-
tion of the March group, to a plan of compromise, which was approved by
the trustee and by the competent Canadian court; and whereas its im-
plementation was rendered impossible as a result of the opposition of the
Spanish exchange authorities, even though the method of financing’finally
proposed no longer involved any sacrifice of foreign currency whatever
for the Spanish economy;

6. Whereas, using this situation as a pretext, the March group, which
in the meantime had made further considerable purchases of bonds,
sought and obtained the judgment adjudicating Barcelona Traction
bankrupt;

7. Whereas the bankruptcy proceedings were conducted in such a
manner as to lead to the sale to the March group, which took place on
4 January 1952, of all the assets of the bankrupt company, far exceeding
in value its liabilities, in consideration of the assumption by the purchaser
itself of solely the bonded debt, which, by new purchases, it had concen-
trated into its own hands to the extent of approximately 85 per cent.,
while the cash price paid to the trustees in bankruptcy, 10,000,000 pesetas—
approximately $250,000—, being insufficient to cover the bankruptcy
costs, did not aliow them to pass anything to the bankrupt company or its
shareholders, or even to pay its unsecured creditors;

8. Whereas the accusations of fraud made by the Spanish Government
against the Barcelona Traction company and the allegation that that
company was in a permanent state of latent bankruptcy are devoid of all

17
BARCELONA TRACTION (JUDGMENT) 17
relevance to the case and, furthermore, are entirely unfounded;

9. Whereas the acts and omissions giving rise to the responsibility
of the Spanish Government are attributed by the Belgian Government
to certain administrative authorities, on the one hand,’ and to certain
judicial authorities, on the other hand;

Whereas it is apparent when those acts and omissions are examined as
a whole that, apart from the defects proper to each, they converged to-
wards one common result, namely the diversion of the bankruptcy proce-
dure from its statutory purposes to the forced transfer, without compensa-
tion, of the undertakings of the Barcelona Traction group to the benefit
of a private Spanish group, the March group;

I

ABUSE OF RIGHTS, ARBITRARY AND DISCRIMINATORY ATTITUDE OF CERTAIN
ADMINISTRATIVE AUTHORITIES

Considering that the Spanish administrative authorities behaved in an
improper, arbitrary and discriminatory manner towards Barcelona Trac-
tion and its shareholders, in that, with the purpose of facilitating the
transfer of control over the property of the Barcelona Traction group
from Belgian hands into the hands of a private Spanish group, they in
particular—

(a) frustrated, in October and December 1946, the implementation of
the third method for financing the plan of compromise, by refusing
to authorize Ebro, a Canadian company with residence in Spain, to
pay 64,000,000 pesetas in the national currency to Spanish residents
on behalf of Barcelona Traction, a non-resident company, so that
the latter might redeem its peseta bonds circulating in Spain, despite
the fact that Ebro continued uninterruptedly to be granted periodical
authorization to pay the interest on those same bonds up to the time
of the bankruptcy;

(b) on the other hand, accepted that Juan March, a Spanish citizen
manifestly resident in Spain, should purchase considerable quantities
of Barcelona Traction sterling bonds abroad;

(c) made improper use of an international enquiry, from which the
Belgian Government was excluded, by gravely distorting the purport
of the conclusions of the Committee of Experts, to whom they
attributed the finding of irregularities of all kinds such as to entail
severe penalties for the Barcelona Traction group, which enabled
the trustees in bankruptcy, at March’s instigation, to bring about the
premature sale at a ridiculously low price of the assets of the Barcelona
Traction group and their purchase by the March group thanks to the
granting of all the necessary exchange authorizations;

I
USURPATION OF JURISDICTION

Considering that the Spanish courts, in agreeing to entertain the bank-
ruptcy of Barcelona Traction, a company under.Canadian law with its
registered office in Toronto, having neither registered office nor commer-

18
BARCELONA TRACTION (JUDGMENT) 18

cial establishment in Spain, nor possessing any property or carrying on
any business there, usurped a power of jurisdiction which was not theirs
in international law;

Considering that the territorial limits of acts of sovereignty were pat-
ently disregarded in the measures of enforcement taken in respect of
property situated outside Spanish territory without the concurrence of the
competent foreign authorities;

Considering that there was, namely, conferred upon the bankruptcy
authorities, through the artificial device of mediate and constructive
civil possession, the power to exercise in Spain the rights attaching to the
shares located in Canada of several subsidiary and sub-subsidiary com-
panies on which, with the approval of the Spanish judicial authorities,
they relied for the purpose of replacing the directors of those companies,
modifying their terms of association, and cancelling their regularly issued
shares and replacing them with others which they had printed in Spain and
delivered to Fecsa at the time of the sale of the bankrupt company’s pro-
perty, without there having been any effort to obtain possession of the
real shares in a regular way;

Considering that that disregard is the more flagrant in that three
of the subsidiaries were companies under Canadian law with their registered
offices in Canada and that the bankruptcy authorities purported, with
the approval of the Spanish judicial authorities, to transform two of
them into Spanish companies, whereas such alteration is not permitted
by the law governing the status of those companies;

ii
DENIALS OF JUSTICE LATO SENSU

Considering that a large number of decisions of the Spanish courts are
vitiated by gross and manifest error in the application of Spanish law,
by arbitrariness or discrimination, constituting in international law de-
nials of justice lato sensu;

Considering that in particular—

(1) The Spanish courts agreed to entertain the bankruptcy of Barcelona
Traction in flagrant breach of the applicable provisions of Spanish law,
which do not permit that a foreign debtor should be adjudged bankrupt
if that debtor does not have his domicile, or at least an establishment, in
Spanish territory;

(2) Those same courts adjudged Barcelona Traction bankrupt whereas
that company was neither in a state of insolvency nor in a state of final,
general and complete cessation of payments and had not ceased its pay-
ments in Spain, this being a manifest breach of the applicable statutory
provisions of Spanish law, in particular Article 876 of the 1885 Commer-
cial Code;

(3) The judgment of 12 February 1948 failed to order the publication
of the bankruptcy by announcement in the place of domicile of the bank-
rupt, which constitutes a flagrant breach of Article 1044 (5) of the 1829
Commercial Code;

(4) The decisions failing to respect the separate estates of Barcelona
Traction’s subsidiaries and sub-subsidiaries, in that they extended to
their property the attachment arising out of the bankruptcy of the parent

19
BARCELONA TRACTION (JUDGMENT) 19

company, and thus disregarded their distinct legal personalities, on the
sole ground that all their shares belonged to Barcelona Traction or one
of its subsidiaries, had no legal basis in Spanish law, were purely arbitrary
and in any event constitute a flagrant breach of Article 35 of the Civil
Code, Articles 116 and 174 of the 1885 Commercial Code (so far as the
Spanish companies are concerned) and Article 15 of the same Code (so
far as the Canadian companies are concerned), as well as of Article 1334
of the Civil Procedure Code;

If the estates of the subsidiaries and sub-subsidiaries could have been
included in that of Barcelona Traction—quod non—, it would have
been necessary to apply to that company the special régime established
by the imperative provisions of Articles 930 ef seq. of the 1885 Commercial
Code and the Acts of 9 April 1904 and 2 January 1915 for the event that
public-utility companies cease payment, and this was not done;

(5) The judicial decisions which conferred on the bankruptcy authorities
the fictitious possession (termed ‘‘mediate and constructive civil posses-
sion”) of the shares of certain subsidiary and sub-subsidiary companies
have no statutory basis in Spanish bankruptcy law and were purely ar-
bitrary; they comprise moreover a flagrant breach not only of the general
principle recognized in the Spanish as in the majority of other legal
systems to the effect that no person may exercise the rights embodied
in negotiable securities without having at his disposal the securities them-
selves but also of Articles 1334 and 1351 of the Civil Procedure Code
and Article 1046 of the 1829 Commercial Code, which require the bank-
ruptcy authorities to proceed to the material apprehension of the bank-
rupt’s property;

(6) The bestowal on the commissioner by the bankruptcy judgment
of power to proceed to the dismissal, removal or appointment of members
of the staff, employees and management, of the companies all of whose
shares belonged to Barcelona Traction or one of its subsidiaries had no
statutory basis in Spanish law and constituted a gross violation of the
statutory provisions referred to under (4), first sub-paragraph, above
and also of Article 1045 of the 1829 Commercial Code;

(7) The Spanish courts approved or tolerated the action of the trustees
in setting themselves up as a purported general meeting of the two Cana-
dian subsidiaries and in transforming them, in that capacity, into com-
panies under Spanish law, thus gravely disregarding the rule embodied
in Article 15 of the 1885 Commercial Code to the effect that the status
and internal functioning of foreign companies shall be governed in Spain
by the law under which they were incorporated;

(8) The Spanish courts approved or tolerated the action of the trustees
in setting themselves up as purported general meetings and modifying,
in that capacity, the terms of association of the Ebro, Catalonian Land,
Union Eléctrica de Cataluña, Electricista Catalana, Barcelonesa and
Saltos del Segre companies, cancelling their shares and issuing new
shares; they thus committed a manifest breach of Article 15 of the 1885
Commercial Code (so far as the two Canadian companies were concerned)
and Articles 547 et seq. of the same code, which authorize the issue of
duplicates only in the circumstances they specify; they also gravely
disregarded the clauses of the trust deeds concerning voting-rights, in

20
BARCELONA TRACTION (JUDGMENT) 20

flagrant contempt of the undisputed rule of Spanish law to the effect that
acts performed and agreements concluded validly by the bankrupt before
the date of the cessation of payments as determined in the judicial decisions
shall retain their effects and their binding force in respect of the bank-
ruptcy authorities (Articles 878 er seq. of the 1885 Commercial Code);

(9) The Spanish courts decided at one and the same time to ignore
the separate legal personalities of the subsidiary and sub-subsidiary
companies (so as to justify the attachment of their property in Spain and
their inclusion in the bankrupt estate) and implicitly but indubitably to re-
cognize those same personalities by the conferring of fictitious possession
of their shares on the bankruptcy authorities, thus giving decisions
which were vitiated by an obvious self-contradiction revealing their
arbitrary. and discriminatory nature;

(10) The general meeting of creditors of 19 September 1949 convened
for the purpose of appointing the trustees was, with the approval of the
Spanish judicial authorities, held in flagrant breach of Articles 300 and
1342 of the Civil Procedure Code, and 1044 (3), 1060, 1061 and 1063
of the 1829 Commercial Code, in that (a) it was not convened on cogniz-
ance of the list of creditors; (b). when that list was prepared, it was not
drawn up on the basis of.particulars from the balance-sheet or the books
and documents of the bankrupt company, which books and documents
were not, as the Spanish Government itself admits, in the possession of
the commissioner on 8 October 1949, while the judicial authorities had
not at any time sent letters rogatory to Toronto, Canada, with the request
‘that they be put at his disposal;

(11) By authorizing the sale of the property of the bankrupt company
when the adjudication in bankruptcy had not acquired irrevocability
and. while the proceedings were suspended, the Spanish courts flagrantly
violated Articles 919, 1167, 1319 and 1331 of the Civil Procedure Code
and the general principles of the right of defence;

In so far as that authorization was based on the allegedly perishable
nature of the property to be sold, it constituted a serious disregard of
Article 1055 of the 1829 Commercial Code and Article 1354 of the Civil
Procedure Code, which articles allow the sale only of movable property
which cannot be képt without deteriorating or spoiling; even supposing
that those provisions could be applied in general to the property of Bar-
celona Traction, its subsidiaries and sub-subsidiaries—quod non—, there
would still have been a gross and flagrant violation of them, inasmuch as
that property as a whole was obviously not in any imminent danger of
serious depreciation; indeed thé only dangers advanced by the trustees,
namely those arising out. of the threats of prosecution contained in the
Joint Statement, had not taken shape, either by the day on which autho-
rization to sell was requested or by the day of the sale, in any proceedings
or demand by the competent authorities and did not ever materialize,
except to an insignificant extent;

The only penalty which the undertakings ‘eventually had to bear, 15
months after the sale, was that relating to the currency offence, which
had occasioned an embargo for a much higher sum as early as April 1948;

(12) The authorization to sell and the sale, in so far as they related
to the shares of the subsidiary and sub-subsidiary companies without
delivery of the certificates, constituted a flagrant violation of Articles

21
BARCELONA TRACTION (JUDGMENT) 21

1461 and 1462 of the Spanish Civil Code, which require delivery of the
thing sold, seeing that the certificates delivered to the successful bidder
had not been properly issued and were consequently without legal value;
if the authorization to sell and the sale had applied, as the respondent
Government wrongly maintains, to the rights attaching to the shares
and bonds or to the bankrupt company’s power of domination over its
subsidiaries, those rights ought to have been the subject of a joint valua-
tion, on pain of flagrant violation of Articles 1084 to 1089 of the 1829
Commercial Code and Article 1358 of the Civil Procedure Code: in any
event, it was in flagrant violation of these last-named provisions that the
commissioner fixed an exaggeratedly low reserve price on the basis of a
unilateral expert opinion which, through the effect of the General Condi-
tions of Sale, allowed the March group to acquire the auctioned property
at that reserve price;

(13) By approving the General Conditions of Sale on the very day
on which they were submitted to them and then dismissing the proceed-
ings instituted to contest those conditions, the judicial authorities com-
mitted a flagrant violation of numerous ordre public provisions of Spanish
law; thus, in particular, the General Conditions of Sale—

(a) provided for the payment of the bondholder creditors, an operation
which, under Article 1322 of the Civil Procedure Code, falls under
the fourth section of the bankruptcy, whereas that section was
suspended as a result of the effects attributed to the Boter motion
contesting jurisdiction, no exemption from that suspension having
been applied for or obtained in pursuance of the second paragraph of
Article 114 of the Civil Procedure Code;

(b) provided for the payment of the debts owing on the bonds before
they had been approved and ranked by a general meeting of the
creditors on the recommendation of the trustees, contrary to Ar-
ticles 1101 to 1109 of the 1829 Commercial Code and to Articles
1266 to 1274, 1286 and 1378 of the Civil Procedure Code;

(c) in disregard of Articles 1236, 1240, 1512 and 1513 of the Civil Pro-
cedure Code, did not require the price to be lodged or deposited
at the Court’s disposal;

(d) conferred on the trustees power to recognize, determine and declare
effective the rights attaching to the bonds, in disregard, on the one
hand, of Articles 1101 to 1109 of the 1829 Commercial Code and
of Articles 1266 to 1274 of the Civil Procedure Code, which reserve
such rights for the general meeting of creditors under the supervision
of the judge, and, on the other, of Articles 1445 and 1449 of the
Civil Code, which lay down that the purchase price must be a definite
sum and may not be left to the arbitrary decision of one of the
contracting parties;

(e) in disregard of Articles 1291 to 1294 of the Civil Procedure Code,
substituted the successful bidder for the trustees in respect of the
payment of the debts owing on the bonds, whilst, in violation of the
general principles applicable to novation, replacing the security
for those debts, consisting, pursuant to the trust deeds, of shares
and bonds issued by the subsidiary and sub-subsidiary companies,
with the deposit of a certain sum with a bank or with a mere banker’s
guarantee limited to three years;

22
BARCELONA TRACTION (JUDGMENT) 22

(f) delegated to a third party the function of paying certain debts,
in disregard of Articles 1291 and 1292 of the Civil Procedure Code,
which define the functions of the trustees in this field and do not
allow of any delegation;

(g) ordered the payment of the debts owing on the bonds in sterling,
whereas a forced execution may only be carried out in local currency
and in the case of bankruptcy the various operations which it includes
require the conversion of the debts into local currency on the day
of the judgment adjudicating bankruptcy, as is to be inferred from
Articles 883 and 884 of the 1885 Commercial Code;

IV
DENIALS OF JUSTICE STRICTO SENSU

Considering that in the course of the bankruptcy proceedings the
rights of the defence were seriously disregarded; that in particular—

(a) the Reus court, in adjudicating Barcelona Traction bankrupt on
an ex parte petition, inserted in its judgment provisions which went
far beyond finding the purported insolvency of or a general cessation
of payments by the bankrupt company, the only finding, in addition
to one on the capacity of the petitioners, that it was open to it to
make in such proceedings;

This disregard of the rights of the defence was particularly flagrant
in respect of the subsidiary companies, whose property was ordered
by the court to be attached without their having been summonsed and
without their having been adjudicated bankrupt;

(b) the subsidiary companies that were thus directly affected by the
judgment of 12 February 1948 nevertheless had their applications
to set aside the order for attachment which concerned them rejected
as inadmissible on the grounds of lack of capacity;

(c) the pursuit of those remedies and the introduction of any other
such proceedings were also made impossible for the subsidiary
companies by the discontinuances effected each time by the solicitors
appointed to replace the original solicitors by the new boards of
directors directly or indirectly involved; these changes of solicitors
and discontinuances were effected by the new boards of directors
by virtue of authority conferred upon them by the interim receiver
simultaneously with their appointment;

(d) the proceedings for relief brought by those in control of the subsidiary
companies who had been dismissed by the commissioner were like-
wise held inadmissible by the Reus court when they sought to avail
themselves of the specific provisions of Article 1363 of the Civil
Procedure Code, which provide for proceedings to reverse decisions
taken by the commissioner in bankruptcy;

(e) there was discrimination on the part of the first special judge when
he refused to admit as a party to the bankruptcy the Canadian Na-
tional Trust Company, Limited, trustee for the bankrupt company’s
two sterling loans, even though it relied upon the security of the
mortgage which had been given to it by Ebro, whereas at the same
time he admitted to the proceedings the Bondholders’ Committee

23
BARCELONA TRACTION (JUDGMENT) 23

appointed by Juan March, although National Trust and the Com-
mittee derived their powers from the same trust deeds;

(f) the complaints against the General Conditions of Sale could be
neither amplified nor heard because the order which had approved
the General Conditions of Sale was deemed to be one of mere routine;

Considering that many years. elapsed after the bankruptcy judgment
and even after the ruinous sale of the property of the Barcelona Traction
group without either the bankrupt company or those co-interested with
it having had an opportunity to be heard on the numerous complaints
put forward against the bankruptcy judgment and related decisions in
the opposition of 18 June 1948 and in various other applications for
relief;

Considering that those delays were caused by the motion contesting
jurisdiction fraudulently lodged by a confederate of the petitioners in
bankruptcy and by incidental proceedings instituted by other men of
straw of the March group, which were, like the motion contesting juris-
diction, regularly admitted by the various courts;

Considering that both general international law and the Spanish-
Belgian Treaty of 1927 regard such delays as equivalent to the denial of a
hearing;

Considering that the manifest injustice resulting from the movement
of the proceedings towards the sale, whilst the actions contesting the
bankruptcy judgment and even the jurisdiction of the Spanish courts
remained suspended, was brought about by two judgments delivered
by the same chamber of the Barcelona court of appeal on the same day,
7 June 1949: in one of them it confirmed the admission, with two effects,
of the Boter appeal from the judgment of the special judge rejecting his
motion contesting jurisdiction, whereas in the other it reduced the sus-
pensive effect granted to that same appeal by excluding from the sus-
pension the calling of the general meeting of creditors for the purpose of
appointing the trustees in bankruptcy;

V
DAMAGE AND REPARATION

Considering that the acts and omissions contrary to international
law attributed to the organs of the Spanish State had the effect of despoil-
ing the Barcelona Traction company of the whole of its property and of
depriving it of the very objects of its activity, and thus rendered it practi-
cally defunct;

Considering that Belgian nationals, natural and juristic persons, share-
holders in Barcelona Traction, in which they occupied a majority and
controlling position, and in particular the Sidro company, the owner
of more than 75 per cent. of the registered capital, on this account suffered
direct and immediate injury to their interests and rights, which were
voided of all value and effectiveness ;

Considering that the reparation due to the Belgian State from the
Spanish State, as a result of the internationally unlawful acts for which
the latter State is responsible, must be complete and must, so far as possible,
reflect the damage suffered by its nationals whose case the Belgian State
has taken up; and that, since restitutio in integrum is, in the circumstances

24
BARCELONA TRACTION (JUDGMENT) 24

of the case, practically and legally impossible, the reparation of the dam-
age suffered can only take place in the form of an all-embracing pecu-
niary idemnity, in accordance with the provisions of the Spanish-Belgian
Treaty of 1927 and with the rules of general international law;

Considering that in the instant case the amount of the indemnity
must be fixed by taking as a basis the net value of the Barcelona Traction
company’s property at the time of its adjudication in bankruptcy, ex-
pressed in a currency which has remained stable, namely the United States
dollar;

Considering that the value of that property must be determined by
the replacement cost of the subsidiary and sub-subsidiary companies’
plant for the production and distribution of electricity at 12 February
1948, as that cost was calculated by the Ebro company’s engineers in 1946;

Considering that, according to those calculations, and after deduction
for depreciation through wear and tear, the value of the plant was at
that date U.S. $116,220,000; from this amount there must be deducted
the principal of Barcelona Traction’s bonded debt and the interest that
had fallen due thereon, that is to say, U.S. $27,619,018, which leaves
a net value of about U.S. $88,600,000, this result being confirmed—

(1) by the study submitted on 5 February 1949 and on behalf of Ebro
to the Special Technical Office for the Regulation and Distribution of
Electricity (Catalonian region) (Belgian New Document No. 50);

(2) by capitalization of the 1947 profits;

(3) by the profits made by Fecsa in 1956—the first year after 1948 in
which the position of electricity companies was fully stabilized and the
last year before the changes made in the undertaking by Fecsa constituted
an obstacle to any useful comparison;

(4) by the reports of the experts consulted by the Belgian Government;

Considering that the compensation due to the Belgian Government
must be estimated, in the first place, at the percentage of such net value
corresponding to the participation of Belgian nationals in the capital
of the Barcelona Traction company, namely 88 per cent.;

Considering that on the critical dates of the bankruptcy judgment
and the filing of the Application, the capital of Barcelona Traction was
represented by 1,798,854 shares, partly bearer and partly registered; that
on 12 February 1948 Sidro owned 1,012,688 registered shares and 349,905
bearer shares; that other Belgian nationals owned 420 registered shares
and at least 244,832 bearer shares; that 1,607,845 shares, constituting
89.3 per cent. of the company’s capital, were thus on that date in. Belgian
hands; that on 74 June 1962 Sidro owned 1,354,514 registered shares and
31,228 bearer shares; that other Belgian nationals owned 2,388 registered
shares and at least 200,000 bearer shares; and that 1,588,130 shares,
constituting 88 per cent. of the company’s capital, were thus on that
date in Belgian hands;

Considering that the compensation claimed must in addition cover all
incidental damage suffered by the said Belgian nationals as a result of the
acts complained of, including the deprivation of enjoyment of rights, the
expenses incurred in the defence of their rights and the equivalent, in
capital and interest, of the amount of the Barcelona Traction bonds held
by Belgian nationals, and of their other claims on the companies in the

25
BARCELONA TRACTION (JUDGMENT) 25

group which it was not possible to recover owing to the acts complained
of;

Considering that the amount of such compensation, due to the Belgian
State on account of acts contrary to international law attributable to the
Spanish State, cannot be affected by the latter’s purported charges against
the private persons involved, those charges furthermore not having formed
the subject of any counterclaim before the Court;

VI

OBJECTION DERIVED FROM THE ALLEGED LACK OF JUS STANDI OF THE
BELGIAN GOVERNMENT

Considering that in its Judgment of 24 July 1964 the Court decided
to join to the merits the third preliminary objection raised by the Spanish
Government;

Considering that the respondent Government wrongly denies to the
Belgian Government jus standi in the present proceedings;

Considering that the object of the Belgian Government’s Application
of 14 June 1962 is reparation for the damage caused to a certain number
of its nationals, natural and juristic persons, in their capacity as share-
holders in the Barcelona Traction, Light and Power Company, Limited,
by the conduct contrary to international law of various organs of the
Spanish State towards that company and various other companies in its
group;

Considering that the Belgian Government has established that 88 per
cent. of Barcelona Traction’s capital was in Belgian hands on the critical
dates of 12 February 1948 and 14 June 1962 and so remained continuously
between those dates, that a single Belgian company, Sidro, possessed
more than 75 per cent. of the shares; that the Belgian nationality of that
company and the effectiveness of its nationality have not been challenged
by the Spanish Government;

Considering that the fact that the Barcelona Traction registered shares
possessed by Sidro were registered in Canada in the name of American
nominees does not affect their Belgian character; that in this case, under
the applicable systems of statutory law, the nominee could exercise the
rights attaching to the shares entered in its name only as Sidro’s agent;

Considering that the preponderence of Belgian interests in the Barcelona
Traction company was well known to the Spanish authorities at the dif-
ferent periods in which the conduct complained of against them occurred,
and has been explicitly admitted by them on more than one occasion;

Considering that the diplomatic protection from which the company
benefited for a certain time on the part of its national Government ceased
in 1952, well before the filing of the Belgian Application, and has never
subsequently been resumed;

Considering that by depriving the organs appointed by the Barcelona
Traction shareholders under the company’s terms of association of their
power of control in respect of its subsidiaries, which removed from the
company the very objects of its activities, and by depriving it of the whole
of its property, the acts and omissions contrary to international law at-
tributed to the Spanish authorities rendered the company practically
defunct and directly and immediately injured the rights and interests

26
BARCELONA TRACTION (JUDGMENT) 26

attaching to the legal situation of shareholder as it is recognized by inter-
national law; that they thus caused serious damage to the company’s
Belgian shareholders and voided the rights which they possessed in that
capacity of all useful content;

Considering that in the absence of reparation to the company for the
damage inflicted on it, from which they would have benefited at the same
time as itself, the Belgian shareholders of Barcelona Traction thus have
separate and independent rights and interests to assert; that they did in
fact have to take the initiative for and bear the cost of all the proceedings
brought through the company’s organs to seek relief in the Spanish
courts; that Sidro and other Belgian shareholders, after the sale of Bar-
celona Traction’s property, themselves brought actions the dismissal of
which is complained of by the Belgian Government as constituting a denial
of Justice;

Considering that under the general principles of international law in this
field the Belgian Government has jus standi to claim through international
judicial proceedings reparation for the damage thus caused to its nationals
by the internationally unlawful acts and omissions attributed to the
Spanish State;

VII
OBJECTION OF NON-EXHAUSTION OF LOCAL REMEDIES

Considering that no real difference has emerged between the Parties
as to the scope and significance of the rule of international law embodied
in Article 3 of the Treaty of Conciliation, Judicial Settlement and Arbitra-
tion concluded between Spain and Belgium on 19 July 1927, which makes
resort to the procedures provided for in that Treaty dependant on the
prior use, until a judgment with final effect has been pronounced, of the
normal means of redress which are available and which offer genuine
possibilities of effectiveness within the limitation of a reasonable time;

Considering that in this case the Respondent itself estimates at 2,736
the number of orders alone made in the case by the Spanish courts as of
the date of the Belgian Application;

Considering that in addition the pleadings refer to more than 30 decisions
by the Supreme Court;

Considering that it is not contended that the remedies as a whole of
which Barcelona Traction and its co-interested parties availed themselves
and which gave rise to those decisions were inadequate or were not pursued
to the point of exhaustion;

Considering that this circumstance suffices as a bar to the possibility
of the fourth objection being upheld as setting aside the Belgian claim;

Considering that the only complaints which could be set aside are
those in respect of which the Spanish Government proved failure to make
use of means of redress or the insufficiency of those used;

Considering that such proof has not been supplied;

1. With Respect to the Complaints Against the Acts of the Administrative
Authorities

Considering that the Spanish Government is wrong in contending
that the Belgian complaint concerning the decisions of October and

27
BARCELONA TRACTION (JUDGMENT) 27

December 1946 referred to under I (a) above is not admissible on account
of Barcelona Traction’s failure to exercise against them the remedies of
appeal to higher authority and contentious administrative proceedings;
Considering that the remedy of appeal to higher authority was incon-
ceivable in this case, being by definition an appeal which may be made
from a decision by one administrative authority to another hierarchically
superior authority namely the Minister, whereas the decisions complained
of were taken with the co-operation and approval of the Minister himself,
and even brought to the knowledge of those concerned by the Minister
at the same time as by the competent administrative authority;
Considering that it was likewise not possible to envisage contentious
administrative proceedings against a decision which patently did not
fall within the ambit of Article 1 of the Act of 22 June 1894, which re-
cognizes such a remedy only against administrative decisions emanating
from administrative authorities in the exercise of their regulated powers and
“infringing a right of an administrative character previously established in
favour of the applicant by an Act, a regulation or some other administrative
provision’’, which requirements were patently not satisfied in this case;

2. With Respect to the Complaint concerning the Reus Court’s Lack of
Jurisdiction to Declare the Bankruptcy of Barcelona Traction

Considering that the Spanish Government is wrong in seeking to
derive an argument from the fact that Barcelona Traction and its co-
interested parties supposedly failed to challenge the jurisdiction of the
Reus court by means of a motion contesting its competence, and allowed
the time-limit for entering opposition to expire without having challenged
that jurisdiction;

Considering that in fact a motion contesting jurisdiction is not at all
the same thing as a motion contesting competence ratione materiae and
may properly be presented cumulatively with the case on the merits;

Considering that the bankrupt company contested jurisdiction at the
head of the complaints set out in its opposition plea of 18 June 1948;

Considering that it complained again of lack of jurisdiction in its
application of 5 July 1948 for a declaration of nullity and in its pleading
of 3 September 1948 in which it confirmed its opposition to the bank-
ruptcy judgment;

Considering that National Trust submitted a formal motion contesting
jurisdiction in its application of 27 November 1948 for admission to the
bankruptcy proceedings;

Considering that Barcelona Traction, after having as early as 23 April
1949 entered an appearance in the proceedings concerning the Boter
motion contesting jurisdiction, formally declared its adherence to that
motion by a procedural document of 11 April 1953;

Considering that the question of jurisdiction being a matter of ordre
public, as is the question of competence ratione materiae, the complaint
of belatedness could not be upheld, even in the event of the expiry of the
allegedly applicable time-limit for entering a plea of opposition;

3. With Respect to the Complaints concerning the Bankruptcy Judgment
and Related Decisions

Considering that the Spanish Government is wrong in contending that
the said decisions were not attacked by adequate remedies pursued to

28
BARCELONA TRACTION (JUDGMENT) 28

the point of exhaustion or for a reasonable length of time;

Considering that in fact, as early as 16 February 1948, the bankruptcy
judgment was attacked by an application for its setting aside on the part
of the subsidiary companies, Ebro and Barcelonesa;

Considering that while those companies admittedly confined their
applications for redress to the parts of the judgment which gave them
grounds for complaint, the said remedies were nonetheless adequate and
they were brought to nought in circumstances which are themselves the
subject of a complaint which has been set out above;

Considering that, contrary to what is asserted by the Spanish Govern-
ment, the bankrupt company itself entered a plea of opposition to the
judgment by a procedural document of 18 June 1948, confirmed on 3
September 1948;

Considering that it is idle for the Spanish Government to criticize the
summary character of this procedural document, while the suspension
decreed by the special judge on account of the Boter motion contesting
jurisdiction prevented the party entering opposition from filing, pursuant
to Article 326 of the Civil Procedure Code, the additional pleading devel-
oping its case;

Considering that likewise there can be no question of belatedness,
since only publication of the bankruptcy at the domicile of the bankrupt
company could have caused the time-limit for entering opposition to
begin to run, and no such publication took place;

Considering that the bankruptcy judgment and the related decisions
were moreover also attacked in the incidental application for a declara-
tion of nullity submitted by Barcelona Traction on 5 July 1948 and
amplified on 31 July 1948;

4. With Respect to the Complaints concerning the Blocking of the Remedies

Considering that the various decisions which instituted and prolonged
the suspension of the first section of the bankruptcy proceedings were
attacked on various occasions by numerous proceedings taken by Barce-
lona Traction, beginning with the incidental application for a declaration
of nullity which it submitted on 5 July 1948;

5. With Respect to the Complaint concerning the Dismissal of the Officers
of the Subsidiary Companies by Order of the Commissioner

Considering that this measure was also attacked by applications for
its setting aside on the part of the persons concerned, which were quite
improperly declared inadmissible; and that the proceedings seeking
redress against those decisions were adjourned until 1963;

6. With Respect to the Failure to Observe the No-Action Clause

Considering that this clause was explicitly referred to by National Trust
in its application of 27 November 1948 for admission to the proceedings;
7. With Respect to the Measures Preparatory to the Sale and the Sale

Considering that the other side, while implicitly admitting that adequate
proceedings were taken to attack the appointment of the trustees and
the authorization to sell, is wrong in contending that this was supposedly
not so in respect of—

29
BARCELONA TRACTION (JUDGMENT) 29

(1) The failure to draw up a list of creditors prior to the convening of
the meeting of creditors for the appointment of the trustees, whereas this
defect was complained of in the procedural document attacking the
appointment of the trustees and in the application that the sale be declared
null and void;

(2) Certain acts and omissions on the part of the trustees, whereas
they were referred to in the proceedings taken to attack the authorization
to sell and the decision approving the method of unilateral valuation of
the assets;

(3) The conditions of sale, whereas they were attacked by Barcelona
Traction in an application to set aside and on appeal, in the application
of 27 December 1951 for a declaration of nullity containing a formal
prayer that the order approving the conditions of sale be declared null
and void, and in an application of 28 May 1955 (New Documents sub-
mitted by the Belgian Government, 1969, No. 30); the same challenge
was expressed by Sidro in its action of 7 February 1953 (New Docu-
ments submitted by the Spanish Government, 1969) and by two other
Belgian shareholders of Barcelona Traction, Mrs. Mathot and Mr. Duvi-
vier, in their application of 26 May 1955 (New Documents submitted by
the Belgian Government, 1969, No. 29);

8. With Respect to the Exceptional Remedies

Considering that the Spanish Government is wrong in raising as an
objection to the Belgian claim the allegation that Barcelona Traction did
not make use of certain exceptional remedies against the bankruptcy
judgment, such as application for revision, action for civil liability and
criminal proceedings against the judges, and application for a hearing
by a party in default;

Considering that the first of these remedies could patently not be
contemplated, not only on account of the nature of the bankruptcy
judgment, but also because until 1963 there was an opposition outstanding
against that Judgment and, superabundantly, because Barcelona Traction,
its subsidiaries and co-interested parties would not have been in a position
to prove the facts of subornation, violence or fraudulent machination
which alone could have entitled such proceedings to be taken;

Considering that the remedies of an action for civil liability and criminal
proceedings against the judges were not adequate, since they were not
capable of bringing about the annulment or setting aside of the decisions
constituting denials of justice;

Considering that similarly the remedy of application for a hearing
accorded by Spanish law to a party in default was patently in this case
neither available to Barcelona Traction nor adequate;

For Turse REASONS, and any others which have been adduced by the
Belgian Government in the course of the proceedings,

May it please the Court, rejecting any other submissions of the Spanish
State which are broader or to a contrary effect,

To uphold the claims of the Belgian Government expressed in the sub-
missions [in] the Reply.”

30
BARCELONA TRACTION (JUDGMENT) 30

The following final submissions were presented
on behalf of the Spanish Government,

at the hearing of 22 July 1969:

“Considering that the Belgian Government has no jus standi in the
present case, either for the protection of the Canadian Barcelona Trac-
tion company or for the protection of alleged Belgian ‘shareholders’ of
that company;

Considering that the requirements of the exhaustion of local remedies
rule have not been satisfied either by the Barcelona Traction company or
by its alleged ‘shareholders’;

Considering that as no violation of an international rule binding on
Spain has been established, Spain has not incurred any responsibility
vis-a-vis the applicant State on any account; and that, in particular—
(a) Spain is not responsible for any usurpation of jurisdiction on account

of the action of its judicial organs;

(6) the Spanish judicial organs have not violated the rules of international
law requiring that foreigners be given access to the courts, that a
decision be given on their claims and that their proceedings for
redress should not be subjected to unjustified delays;

(c) there have been no acts of the Spanish judiciary capable of giving
rise to international responsibility on the part of Spain on account of
the content of judicial decisions; and

(d) there has not been on the part of the Spanish administrative authori-
ties any violation of an international obligation on account of
abuse of rights or discriminatory acts;

Considering that for these reasons, and any others expounded in the
written and oral proceedings, the Belgian claims must be deemed to be
inadmissible or unfounded;

The Spanish Government presents to the Court its final submissions:

May it please the Court to adjudge and declare that the Belgian Go-
vernment’s claims are dismissed.”

*
* *

26. As has been indicated earlier, in opposition to the Belgian Applica-
tion the Spanish Government advanced four objections of a preliminary
nature. In its Judgment of 24 July 1964 the Court rejected the first and
second of these (see paragraph 3 above), and decided to join the third and
fourth to the merits. The latter were, briefly, to the effect that the Belgian
Government lacked capacity to submit any claim in respect of wrongs
done to a Canadian company, even if the shareholders were Belgian, and
that local remedies available in Spain had not been exhausted.

27. In the subsequent written and oral proceedings the Parties supplied
the Court with abundant material and information bearing both on the
preliminary objections not decided in 1964 and on the merits of the case.
In this connection the Court considers that reference should be made to
the unusual length of the present proceedings, which has been due to the

31
BARCELONA TRACTION (JUDGMENT) 31

very long time-limits requested by the Parties for the preparation of their
written pleadings and in addition to their repeated requests for an ex-
tension of these limits. The Court did not find that it should refuse these
requests and thus impose limitations on the Parties in the preparation and
presentation of the arguments and evidence which they considered
necessary. It nonetheless remains convinced of the fact that it is in the
interest of the authority and proper functioning of international justice
for cases to be decided without unwarranted delay.

28. For the sake of clarity, the Court will briefly recapitulate the
claim and identify the entities concerned in it. The claim is presented on
behalf of natural and juristic persons, alleged to be Belgian nationals and
shareholders in the Barcelona Traction, Light and Power Company,
Limited. The submissions of the Belgian Government make it clear that
the object of its Application is reparation for damage allegedly caused to
these persons by the conduct, said to be contrary to international law,
of various organs of the Spanish State towards that company and various
other companies in the same group.

29. In the first of its submissions, more specifically in the Counter-
Memorial, the Spanish Government contends that the Belgian Applica-
tion of 1962 seeks, though disguisedly, the same object as the Application
of 1958, i.e., the protection of the Barcelona Traction company as such,
as a separate corporate entity, and that the claim should in consequence
be dismissed. However, in making its new Application, as it has chosen
to frame it, the Belgian Government was only exercising the freedom of
action of any State to formulate its claim in its own way. The Court is
therefore bound to examine the claim in accordance with the explicit
content imparted to it by the Belgian Government.

30. The States which the present case principally concerns are
Belgium, the national State of the alleged shareholders, Spain, the State
whose organs are alleged to have committed the unlawful acts com-
plained of, and Canada, the State under whose laws Barcelona Traction
was incorporated and in whose territory it has its registered office (“head
office” in the terms of the by-laws of Barcelona Traction).

31. Thus the Court has to deal with a series of problems arising out
of a triangular relationship involving the State whose nationals are
shareholders in a company incorporated under the laws of another State,
in whose territory it has its registered office; the State whose organs are
alleged to have committed against the company unlawful acts prejudicial
to both it and its shareholders; and the State under whose laws the com-
pany is incorporated, and in whose territory it has its registered office.

*

32
BARCELONA TRACTION (JUDGMENT) 32

32. In these circumstances it is logical that the Court should first
address itself to what was originally presented as the subject-matter of the
third preliminary objection: namely the question of the right of Belgium
to exercise diplomatic protection of Belgian shareholders in a company
which is a juristic entity incorporated in Canada, the measures com-
plained of having been taken in relation not to any Belgian national but
to the company itself. |

33. When a State admits into its territory foreign investments or
foreign nationals, whether natural or juristic persons, it is bound to
extend to them the protection of the law and assumes obligations con-
cerning the treatment to be afforded them. These obligations, however,
are neither absolute nor unqualified. In particular, an essential distinction
should be drawn between the obligations of a State towards the inter-
national community as a whole, and those arising vis-à-vis another State
in the field of diplomatic protection. By their very nature the former are
the concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection; they are
obligations erga omnes.

34. Such obligations derive, for example, in contemporary inter-
national law, from the outlawing of acts of aggression, and of genocide,
as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimina-
tion. Some of the corresponding rights of protection have entered into the
body of general international law (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23); others are conferred by international instru-
ments of a universal or quasi-universal character.

35. Obligations the performance of which is the subject of diplomatic
protection are not of the same category. It cannot be held, when one
such obligation in particular is in question, in a specific case, that all
States have a legal interest in its observance. In order to bring a claim in
respect of the breach of such an obligation, a State must first establish its
right to do so, for the rules on the subject rest on two suppositions:

“The first is that the defendant State has broken an obligation
towards the national State in respect of its nationals. The second is
that only the party to whom an international obligation is due can
bring a claim in respect of its breach.” (Reparation for Injuries
Suffered in the Service of the United Nations, Advisory Opinion,
I.C.J. Reports 1949, pp. 181-182.)

In the present case it is therefore essential to establish whether the losses
allegedly suffered by Belgian shareholders in Barcelona Traction were the
consequence of the violation of obligations of which they were the bene-
ficiaries. In other words: has a right of Belgium been violated on account

33
BARCELONA TRACTION (JUDGMENT) 33

of its nationals’ having suffered infringement of their rights as share-
holders in a company not of Belgian nationality?

36. Thus it is the existence or absence of a right, belonging to Belgium
and recognized as such by international law, which is decisive for the
problem of Belgium’s capacity.

“This right is necessarily limited to intervention [by a State] on behalf
of its own nationals because, in the absence of a special agreement, it
is the bond of nationality between the State and the individual which
alone confers upon the State the right of diplomatic protection, and
it is as a part of the function of diplomatic protection that the right
to take up a claim and to ensure respect for the rules of international
law must be envisaged.” (Panevezys-Saldutiskis Railway, Judgment,
1939, P.C.I.J., Series A]B, No. 76, p. 16.)

It follows that the same question is determinant in respect of Spain’s
responsibility towards Belgium. Responsibility is the necessary corollary
of a right. In the absence of any treaty on the subject between the Parties,
this essential issue has to be decided in the light of the general rules of
diplomatic protection.

37. In seeking to determine the law applicable to this case, the Court
has to bear in mind the continuous evolution of international law.
Diplomatic protection deals with a very sensitive area of international
relations, since the interest of a foreign State in the protection of its
nationals confronts the rights of the territorial sovereign, a fact of which
the general law on the subject has had to take cognizance in order to
prevent abuses and friction. From its origins closely linked with inter-
national commerce, diplomatic protection has sustained a particular
impact from the growth of international economic relations, and at the
same time from the profound transformations which have taken place in
the economic life of nations. These latter changes have given birth to
municipal institutions, which have transcended frontiers and have begun
to exercise considerable influence on international relations. One of these
phenomena which has a particular bearing on the present case is the
corporate entity.

38. In this field international law is called upon to recognize institutions
of municipal law that have an important and extensive role in the inter-
national field. This does not necessarily imply drawing any analogy be-
tween its own institutions and those of municipal law, nor does it amount
to making rules of international law dependent upon categories of muni-
cipal law. All it means is that international law has had to recognize the
corporate entity as an institution created by States in a domain essentially
within their domestic jurisdiction. This in turn requires that, whenever
legal issues arise concerning the rights of States with regard to the treat-

34
BARCELONA TRACTION (JUDGMENT) 34

ment of companies and shareholders, as to which rights international law
has not established its own rules, it has to refer to the relevant rules of
municipal law. Consequently, in view of the relevance to the present case
of the rights of the corporate entity and its shareholders under municipal
law, the Court must devote attention to the nature and interrelation of

those rights.

39. Seen in historical perspective, the corporate personality represents
a development brought about by new and expanding requirements in the
economic field, an entity which in particular allows of operation in
circumstances which exceed the normal capacity of individuals. As such
it has become a powerful factor in the economic life of nations. Of this,
municipal law has had to take due account, whence the increasing volume
of rules governing the creation and operation of corporate entities,
endowed with a specific status. These entities have rights and obligations
peculiar to themselves.

40. There is, however, no need to investigate the many different forms .
of legal entity provided for by the municipal laws of States, because the
Court is concerned only with that exemplified by the company involved
in the present case: Barcelona Traction—a limited liability company
whose capital is represented by shares. There are, indeed, other associa-
tions, whatever the name attached to them by municipal legal systems,
that do not enjoy independent corporate personality. The legal difference
between the two kinds of entity is that for the limited liability company it
is the overriding tie of legal personality which is determinant; for the
other associations, the continuing autonomy of the several members.

41. Municipal law determines the legal situation not only of such
limited liability companies but also of those persons who hold shares in
them. Separated from the company by numerous barriers, the shareholder
cannot be identified with it. The concept and structure of the company
are founded on and determined by a firm distinction between the separate
entity of the company and that of the shareholder, each with a distinct set
of rights. The separation of property rights as between company and
shareholder is an important manifestation of this distinction. So long as
the company is in existence the shareholder has no right to the corporate
assets.

42. It is a basic characteristic of the corporate structure that the
company alone, through its directors or management acting in its name,
can take action in respect of matters that are of a corporate character.
The underlying justification for this is that, in seeking to serve its own
best interests, the company will serve those of the shareholder too.
Ordinarily, no individual shareholder can take legal steps, either in the

35
BARCELONA TRACTION (JUDGMENT) 35

name of the company or in his own name. If the shareholders disagree
with the decisions taken on behalf of the company they may, in accordance
with its articles or the relevant provisions of the law, change them or
replace its officers, or take such action as is provided by law. Thus to
protect the company against abuse by its management or the majority of
shareholders, several municipal legal systems have vested in shareholders
(sometimes a particular number is specified) the right to bring an action
for the defence of the company, and conferred upon the minority of
shareholders certain rights to guard against decisions affecting the
rights of the company vis-à-vis its management or controlling share-
holders. Nonetheless the shareholders’ rights in relation to the company
and its assets remain limited, this being, moreover, a corollary of the
limited nature of their liability.

43. At this point the Court would recall that in forming a company, its
promoters are guided by all the various factors involved, the advantages
and disadvantages of which they take into account. So equally does a
shareholder, whether he is an original subscriber of capital or a subsequent
purchaser of the company’s shares from another shareholder. He may
be seeking safety of investment, high dividends or capital appreciation—
or a combination of two or more of these. Whichever it is, it does not
alter the legal status of the corporate entity or affect the rights of the
shareholder. In any event he is bound to take account of the risk of
reduced dividends, capital depreciation or even loss, resulting from or-
dinary commercial hazards or from prejudice caused to the company
by illegal treatment of some kind. |

*

44. Notwithstanding the separate corporate personality, a wrong done
to the company frequently causes prejudice to its shareholders. But the
mere fact that damage is sustained by both company and shareholder
does not imply that both are entitled to claim compensation. Thus no
legal conclusion can be drawn from the fact that the same event caused
damage simultaneously affecting several natural or juristic persons.
Creditors do not have any right to claim compensation from a person
who, by wronging their debtor, causes them loss. In such cases, no doubt,
the interests of the aggrieved are affected, but not their rights. Thus
whenever a shareholder’s interests are harmed by an act done to the
company, it is to the latter that he must look to institute appropriate
action; for although two separate entities may have suffered from the
same wrong, it is only one entity whose rights have been infringed.

45. However, it has been argued in the present case that a company
represents purely a means of achieving the economic purpose of its
members, namely the shareholders, while they themselves constitute in
fact the reality behind it. It has furthermore been repeatedly emphasized

36
BARCELONA TRACTION (JUDGMENT) 36

that there exists between a company and its shareholders a relationship
describable as a community of destiny. The alleged acts may have been
directed at the company and not the shareholders, but only in a formal
sense: in reality, company and shareholders are so closely interconnected
that prejudicial acts committed against the former necessarily wrong the
latter; hence any acts directed against a company can be conceived as
directed against its shareholders, because both can be considered in
substance, i.e., from the economic viewpoint, identical. Yet even if a
company is no more than a means for its shareholders to achieve their
economic purpose, so long as it is in esse it enjoys an independent exis-
tence. Therefore the interests of the shareholders are both separable and
indeed separated from those of the company, so that the possibility of
their diverging cannot be denied.

46. It has also been contended that the measures complained of,
although taken with respect to Barcelona Traction and causing it direct
damage, constituted an unlawful act vis-a-vis Belgium, because they also,
though indirectly, caused damage to the Belgian shareholders in Bar-
celona Traction. This again is merely a different way of presenting the
distinction between injury in respect of a right and injury to a simple
interest. But, as the Court has indicated, evidence that damage was
suffered does not ipso facto justify a diplomatic claim. Persons suffer
damage or harm in most varied circumstances. This in itself does not
involve the obligation to make reparation. Not a mere interest affected,
but solely a right infringed involves responsibility, so that an act directed
against and infringing only the company’s rights does not involve
responsibility towards the shareholders, even if their interests are af-
fected.

47. The situation is different if the act complained of is aimed at the
direct rights of the shareholder as such. It is well known that there are
rights which municipal law confers upon the latter distinct from those of
the company, including the right to any declared dividend, the right to
attend and vote at general meetings, the right to share in the residual as-
sets of the company on liquidation. Whenever one of his direct rights is
infringed, the shareholder has an independent right of action. On this
there is no disagreement between the Parties. But a distinction must be
drawn between a direct infringement of the shareholder’s rights, and
difficulties or financial losses to which he may be exposed as the result of
the situation of the company.

48. The Belgian Government claims that shareholders of Belgian
nationality suffered damage in consequence of unlawful acts of the
Spanish authorities and, in particular, that the Barcelona Traction
shares, though they did not cease to exist, were emptied of all real
economic content. It accordingly contends that the shareholders had an

37
BARCELONA TRACTION (JUDGMENT) 37

independent right to redress, notwithstanding the fact that the acts
complained of were directed against the company as such. Thus the legai
issue is reducible to the question of whether it is legitimate to identify an
attack on company rights, resulting in damage to shareholders, with the
violation of their direct rights. |
49. The Court has noted from the Application, and from the reply
given by Counsel on 8 July 1969, that the Belgian Government did not
base its claim on an infringement of the direct rights of the shareholders.
Thus it is not open to the Court to go beyond the claim as formulated by
the Belgian Government and it will not pursue its examination of this

point any further. |
*

50. In turning now to the international legal aspects of the case, the
Court must, as already indicated, start from the fact that the present case
essentially involves factors derived from municipal law—the distinction
and the community between the company and the shareholder—which
the ‘Parties, however widely their interpretations may differ, each take as
the point of departure of their reasoning. If the Court were to decide the
case in disregard of the relevant institutions of municipal law it would,
without justification, invite serious legal difficulties. It would lose touch
with reality, for there are no corresponding institutions of international
law to which the Court could resort. Thus the Court has, as indicated, not
only to take cognizance of municipal law but also to refer to it. It is to
rules generaliy accepted by municipal legal systems which recognize the
limited company whose capital is represented by shares, and not to the
municipal law of a particular State, that international law refers. In
referring to such rules, the Court cannot modify, still less deform them.

51. On the international plane, the Belgian Government has advanced
the proposition that it is inadmissible to deny the shareholders’ national
State a right of diplomatic protection merely on the ground that another
State possesses a corresponding right in respect of the company itself. In
strict logic and law this formulation of the Belgian claim to jus standi
assumes the existence of the very right that requires demonstration. In
fact the Belgian Government has repeatedly stressed that there exists no
rule of international law which would deny the national State of the
shareholders the right of diplomatic protection for the purpose of seeking
redress pursuant to unlawful acts committed by another State against the
company in which they hold shares. This, by emphasizing the absence of
any express denial of the right, conversely implies the admission that
there is no rule of international law which expressly confers such a right
on the shareholders’ national State.

38
BARCELONA TRACTION (JUDGMENT) 38

52. International law may not, in some fields, provide specific rules in
particular cases. In the concrete situation, the company against which
allegedly unlawful acts were directed is expressly vested with a right,
whereas no such right is specifically provided for the shareholder in
respect of those acts. Thus the position of the company rests on a positive
rule of both municipal and international law. As to the shareholder, while
he has certain rights expressly provided for him by municipal law as
referred to in paragraph 42 above, appeal can, in the circumstances of the
present case, only be made to the silence of international law. Such
silence scarcely admits of interpretation in favour of the shareholder.

53. It is quite true, as was recalled in the course of oral argument in the
present case, that concurrent claims are not excluded in the case of a
person who, having entered the service of an international organization
and retained his nationality, enjoys simultaneously the right to be
protected by his national State and the right to be protected by the
organization to which he belongs. This however is a case of one person in
possession of two separate bases of protection, each of which is valid
(Reparation for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 185). There is no analogy
between such a situation and that of foreign shareholders in a company
which has been the victim of a violation of international law which has
caused them damage.

54. Part of the Belgian argument is founded on an attempt to assimilate
interests to rights, relying on the use in many treaties and other instru-
ments of such expressions as property, rights and interests. This is not,
however, conclusive. Property is normally protected by law. Rights are
ex hypothesi protected by law, otherwise they would not be rights.
According to the Belgian Government, interests, although distinct from
rights, are also protected by the aforementioned conventional rules. The
Court is of the opinion that, for the purpose of interpreting the general
rule of international law concerning diplomatic protection, which is its
task, it has no need to determine the meaning of the term interests in the
conventional rules, in other words to determine whether by this term the
conventional rules refer to rights rather than simple interests.

55. The Court will now examine other grounds on which it is con-
ceivable that the submission by the Belgian Government of a claim on
behalf of shareholders in Barcelona Traction may be justified.

56. For the same reasons as before, the Court must here refer to
municipal law. Forms of incorporation and their legal personality have

39
BARCELONA TRACTION (JUDGMENT) 39

sometimes not been employed for the sole purposes they were originally
intended to serve; sometimes the corporate entity has been unable to
protect the rights of those who entrusted their financial resources to it;
thus inevitably there have arisen dangers of abuse, as in the case of many
other institutions of law. Here, then, as elsewhere, the law, confronted
with economic realities, has had to provide protective measures and
remedies in the interests of those within the corporate entity as well as of
those outside who have dealings with it: the law has recognized that the
independent existence of the legal entity cannot be treated as an absolute.
It is in this context that the process of “lifting the corporate veil” or
“disregarding the legal entity” has been found justified and equitable in
certain circumstances or for certain purposes. The wealth of practice
already accumulated on the subject in municipal law indicates that the
veil is lifted, for instance, to prevent the misuse of the privileges of legal
personality, as in certain cases of fraud or malfeasance, to protect third
persons such as a creditor or purchaser, or to prevent the evasion of legal
requirements or of obligations.

57. Hence the lifting of the veil is more frequently employed from
without, in the interest of those dealing with the corporate entity. How-
ever, it has also been operated from within, in the interest of—among
others—the shareholders, but only in exceptional circumstances.

58. In accordance with the principle expounded above, the process of
lifting the veil, being an exceptional one admitted by municipal law in
respect of an institution of its own making, is equally admissible to play
a similar role in international law. It follows that on the international
plane also there may in principle be special circumstances which justify
the lifting of the veil in the interest of shareholders.

*

59. Before proceeding, however, to consider whether such circum-
stances exist in the present case, it will be advisable to refer to two specific
cases involving encroachment upon the legal entity, instances of which
have been cited by the Parties. These are: first, the treatment of enemy
and allied property, during and after the First and Second World Wars,
in peace treaties and other international instruments; secondly, the
treatment of foreign property consequent upon the nationalizations car-
ried out in recent years by many States.

60. With regard to the first, enemy-property legislation was an in-
strument of economic warfare, aimed at denying the enemy the advantages
to be derived from the anonymity and separate personality of corpora-
tions. Hence the lifting of the veil was regarded as justified ex necessitate
and was extended to all entities which were tainted with enemy character,
even the nationals of the State enacting the legislation. The provisions of
the peace treaties had a very specific function: to protect allied property,
and to seize and pool enemy property with a view to covering reparation

40
BARCELONA TRACTION (JUDGMENT) 40

claims. Such provisions are basically different in their rationale from
those normally applicable.

61. Also distinct are the various arrangements made in respect of
compensation for the nationalization of foreign property. Their rationale
too, derived as it is from structural changes in a State’s economy, differs
from that of any normally applicable provisions. Specific agreements
have been reached to meet specific situations, and the terms have varied
from case to case. Far from evidencing any norm as to the classes of
beneficiaries of compensation, such arrangements are sui generis and
provide no guide in the present case.

62. Nevertheless, during the course of the proceedings both Parties
relied on international instruments and judgments of international tri-
bunals concerning these two specific areas. It should be clear that the
developments in question have to be viewed as distinctive processes,
arising out of circumstances peculiar to the respective situations. To seek
to draw from them analogies or conclusions held to be valid in other
fields is to ignore their specific character as lex specialis and hence to
court error.

63. The Parties have also relied on the general arbitral jurisprudence
which has accumulated in the last half-century. However, in most cases
the decisions cited rested upon the terms of instruments establishing the
jurisdiction of the tribunal or claims commission and determining what
rights might enjoy protection; they cannot therefore give rise to general-
ization going beyond the special circumstances of each case. Other
decisions, allowing or disallowing claims by way of exception, are not, in
view of the particular facts concerned, directly relevant to the present case.

64. The Court will now consider whether there might not be, in the
present case, other special circumstances for which the general rule might
not take effect. In this connection two particular situations must be
studied: the case of the company having ceased to exist and the case of
the company’s national State lacking capacity to take action on its behalf.

65. As regards the first of these possibilities the Court observes that
the Parties have put forward conflicting interpretations of the present
situation of Barcelona Traction. There can, however, be no question but
that Barcelona Traction has lost all its assets in Spain, and was placed in
receivership in Canada, a receiver and manager having been appointed.
It is common ground that from the economic viewpoint the company has
been entirely paralyzed. It has been deprived of all its Spanish sources of
income, and the Belgian Government has asserted that the company

41
BARCELONA TRACTION (JUDGMENT) 41

could no longer find the funds for its legal defence, so that these had to be
supplied by the shareholders. ;

66. It cannot however, be contended that the corporate entity of the
company has ceased to exist, or that it has lost its capacity to take
corporate action. It was free to exercise such capacity in the Spanish
courts and did in fact do so. It has not become incapable in law of
defending its own rights and the interests of the shareholders. In particular,
a precarious financial situation cannot be equated with the demise of the
corporate entity, which is the hypothesis under consideration: the com-
pany’s status in law is alone relevant, and not its economic condition, nor
even the possibility of its being “practically defunct’”—a description on
which argument has been based but which lacks all legal precision. Only
in the event of the legal demise of the company are the shareholders
deprived of the possibility of a remedy available through the company;
itis only ifthey became deprived of all such possibility that an independent
right of action for them and their government could arise.

67. In the present case, Barcelona Traction is in receivership in the
country of incorporation. Far from implying the demise of the entity or of
its rights, this much rather denotes that those rights are preserved for so
long as no liquidation has ensued. Though in receivership, the company
continues to exist. Moreover, it is a matter of public record that the
company’s shares were quoted on the stock-market at a recent date.

68. The reason for the appointment in Canada not only of a receiver
but also of a manager was explained as follows:

“In the Barcelona Traction case it was obvious, in view of the
Spanish bankruptcy order of 12 February 1948, that the appointment
of only a receiver would be useless, as positive steps would have to be
taken if any assets seized in the bankruptcy in Spain were to be
recovered.” (Hearing of 2 July 1969.)

In brief, a manager was appointed in order to safeguard the company’s

- rights; he has been in a position directly or indirectly to uphold them.
Thus, even if the company is limited in its activity after being placed in
receivership, there can be no doubt that it has retained its legal capacity
and that the power to exercise it is vested in the manager appointed by
the Canadian courts. The Court is thus not confronted with the first
hypothesis contemplated in paragraph 64, and need not pronounce upon
It.

69. The Court will now turn to the second possibility, that of the lack
of capacity of the company’s national State to act on its behalf. The first
question which must be asked here is whether Canada—the third apex of

42
BARCELONA TRACTION (JUDGMENT) 42

the triangular relationship—is, in law, the national State of Barcelona
Traction.

70. In allocating corporate entities to States for purposes of diplomatic
protection, international law is based, but only to a limited extent, on an
analogy with the rules governing the nationality of individuals. The
traditional rule attributes the right of diplomatic protection of a corporate
entity to the State under the laws of which it is incorporated and in whose
territory it has its registered office. These two criteria have been con-
firmed by long practice and by numerous international instruments.
This notwithstanding, further or different links are at times said to be
required in order that a right of diplomatic protection should exist.
Indeed, it has been the practice of some States to give a company in-
corporated under their law diplomatic protection solely when it has its
seat (siége social) or management or centre of control in their territory,
or when a majority or a substantial proportion of the shares has been
owned by nationals of the State concerned. Only then, it has been held,
does there exist between the corporation and the State in question a
genuine connection of the kind familiar from other branches of inter-
national law. However, in the particular field of the dipiomatic protection
of corporate entities, no absolute test of the “genuine connection” has
found general acceptance. Such tests as have been applied are of a
relative nature, and sometimes links with one State have had to be weighed
against those with another. In this connection reference has been made to
the Nottebohm case. In fact the Parties made frequent reference to it in
the course of the proceedings. However, given both the legal and factual
aspects of protection in the present case the Court is of the opinion that
there can be no analogy with the issues raised or the decision given in
that case.

71. In the present case, it is not disputed that the company was in-
corporated in Canada and has its registered office in that country. The
incorporation of the company under the law of Canada was an act of
free choice. Not only did the founders of the company seek its incorpora-
tion under Canadian law but it has remained under that law for a period
of over 50 years. It has maintained in Canada its registered office, its
accounts and its share registers. Board meetings were held there for many
years; it has been listed in the records of the Canadian tax authorities.
Thus a close and permanent connection has been established, fortified by
the passage of over half a century. This connection is in no way weakened
by the fact that the company engaged from the very outset in commercial
activities outside Canada, for that was its declared object. Barcelona
Traction’s links with Canada are thus manifold.

72. Furthermore, the Canadian nationality of the company has
received general recognition. Prior to the institution of proceedings before
the Court, three other governments apart from that of Canada (those of
the United Kingdom, the United States and Belgium) made representa-

43
BARCELONA TRACTION (JUDGMENT) 43

tions concerning the treatment accorded to Barcelona Traction by the
Spanish authorities. The United Kingdom Government intervened on
behalf of bondholders and of shareholders. Several representations were
also made by the United States Government, but not on behalf of the
Barcelona Traction company as such.

73. Both Governments acted at certain stages in close co-operation
with the Canadian Government. An agreement was reached in 1950 on
the setting-up of an independent committee of experts. While the Belgian
and Canadian Governments contemplated a committee composed of
Belgian, Canadian and Spanish members, the Spanish Government sug-
gested a committee composed of British, Canadian and Spanish members.
This was agreed to by the Canadian and United Kingdom Governments,
and the task of the committee was, in particular, to establish the monies
imported into Spain by Barcelona Traction or any of its subsidiaries, to
determine and appraise the materials and services brought into the
country, to determine and appraise the amounts withdrawn from Spain
by Barcelona Traction or any of its subsidiaries, and to compute the
profits earned in Spain by Barcelona Traction or any of its subsidiaries
and the amounts susceptible of being withdrawn from the country at 31
December 1949.

74. As to the Belgian Government, its earlier action was also under-
taken in close co-operation with the Canadian Government. The Belgian
Government admitted the Canadian character of the company in the
course of the present proceedings. It explicitly stated that Barcelona
Traction was a company of neither Spanish nor Belgian nationality but a
Canadian company incorporated in Canada. The Belgian Government has
even conceded that it was not concerned with the injury suffered by
Barcelona Traction itself, since that was Canada’s affair.

75. The Canadian Government itself, which never appears to have
doubted its right to intervene on the company’s behalf, exercised the
protection of Barcelona Traction by diplomatic representation for a
number of years, in particular by its note of 27 March 1948, in which it
alleged that a denial of justice had been committed in respect of the
Barcelona Traction, Ebro and National Trust companies, and requested
that the bankruptcy judgment be cancelled. It later invoked the Anglo-
Spanish treaty of 1922 and the agreement of 1924, which applied to
Canada. Further Canadian notes were addressed to the Spanish Govern-
ment in 1950, 1951 and 1952. Further approaches were made in 1954, and
in 1955 the Canadian Government renewed the expression of its deep
interest in the affair of Barcelona Traction and its Canadian subsidiaries.

76. In sum, the record shows that from 1948 onwards the Canadian
Government made to the Spanish Government numerous representations
which cannot be viewed otherwise than as the exercise of diplomatic

44
BARCELONA TRACTION (JUDGMENT) 44

protection in respect of the Barcelona Traction company. Therefore this
was not a case where diplomatic protection was refused or remained in
the sphere of fiction. It is also clear that over the whole period of its
diplomatic activity the Canadian Government proceeded in full know-
ledge of the Belgian attitude and activity.

77. It is true that at a certain point the Canadian Government ceased
to act on behalf of Barcelona Traction, for reasons which have not been
fully revealed, though a statement made in a letter of 19 July 1955 by the
Canadian Secretary of State for External Affairs suggests that it felt the
matter should be settled by means of private negotiations. The Canadian
Government has nonetheless retained its capacity to exercise diplomatic
protection; no legal impediment has prevented it from doing so: no
fact has arisen to render this protection impossible. It has discontinued
its action of its own free will.

78. The Court would here observe that, within the limits prescribed
by international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its own right
that the State is asserting. Should the natural or legal persons on whose
behalf it is acting consider that their rights are not adequately protected,
they have no remedy in international law. All they can do is to resort te
municipal law, if means are available, with a view to furthering their
cause or obtaining redress. The municipal legislator may lay upon the
State an obligation to protect its citizens abroad, and may also confer
upon the national a right to demand the performance of that obligation,
and clothe the right with corresponding sanctions. However, all these
questions remain within the province of municipal law and do not affect
the position internationally.

79. The State must be viewed as the sole judge to decide whether its
protection will be granted, to what extent it is granted, and when it will
cease. It retains in this respect a discretionary power the exercise of
which may be determined by considerations of a political or other nature,
unrelated to the particular case. Since the claim of the State is not identi-
cal with that of the individual or corporate person whose cause is es-
poused, the State enjoys complete freedom of action. Whatever the
reasons for any change of attitude, the fact cannot in itself constitute a
justification for the exercise of diplomatic protection by another govern-
ment, unless there is some independent and otherwise valid ground for
that.

80. This cannot be regarded as amounting to a situation where a
violation of law remains without remedy: in short, a legal vacuum.

45
BARCELONA TRACTION (JUDGMENT) 45

There is no obligation upon the possessors of rights to exercise them.
Sometimes no remedy is sought, though rights are infringed. To equate
this with the creation of a vacuum would be to equate a right with an
obligation.

81. The cessation by the Canadian Government of the diplomatic
protection of Barcelona Traction cannot, then, be interpreted to mean
that there is no remedy against the Spanish Government for the damage
done by the allegedly unlawful acts of the Spanish authorities. It is not a
hypothetical right which was vested in Canada, for there is. no legal
impediment preventing the Canadian Government from protecting
Barcelona Traction. Therefore there is no substance in the argument that
for the Belgian Government to bring a claim before the Court represented
the only possibility of obtaining redress for the damage suffered by
Barcelona Traction and, through it, by its shareholders.

82. Nor can the Court agree with the view that the Canadian Govern-
ment had of necessity to interrupt the protection it was giving to Barce-
lona Traction, and to refrain from pursuing it by means of other pro-
cedures, solely because there existed no link of compulsory jurisdiction
between Spain and Canada. International judicial proceedings are but
one of the means available to States in pursuit of their right to exercise
diplomatic protection (Reparation for Injuries Suffered in the Service of the
United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 178). The lack
of a jurisdictional link cannot be regarded either in this or in other fields
of international law as entailing the non-existence of a right.

83. The Canadian Government’s right of protection in respect of the
Barcelona Traction company remains unaffected by the present pro-
ceedings. The Spanish Government has never challenged the Canadian
nationality of the company, either in the diplomatic correspondence
with the Canadian Government or before the Court. Moreover it has
unreservedly recognized Canada as the national State of Barcelona
Traction in both written pleadings and oral statements made in the
course of the present proceedings. Consequently, the Court considers that
the Spanish Government has not questioned Canada’s right to protect the
company.

84. Though, having regard to the character of the case, the question
of Canada’s right has not been before it, the Court has considered it
necessary to clarify this issue.

85. The Court will now examine the Belgian claim from a different
point of view, disregarding municipal law and relying on the rule that in
inter-State relations, whether claims are made on behalf of a State’s
national or on behalf of the State itself, they are always the claims of the

46
BARCELONA TRACTION (JUDGMENT) 46 .

State. As the Permanent Court said,

“The question, therefore, whether the . .. dispute originates in an
injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint.” (Mavrom-
matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series
A, No. 2, p. 12. See also Nottebohm, Second Phase, Judgment, I.C.J.
Reports 1955, p. 24.)

86. Hence the Belgian Government would be entitled to bring a claim
if it could show that one of its rights had been infringed and that the acts
complained of involved the breach of an international obligation arising
out of a treaty or a general rule of law. The opinion has been expressed that
a claim can accordingly be made when investments by a State’s nationals
abroad. are thus prejudicially affected, and that since such investments
are part of a State’s national economic resources, any prejudice to them
directly involves the economic interest of the State.

87. Governments have been known to intervene in such circumstances
not only when their interests were affected, but also when they were
threatened. However, it must be stressed that this type of action is quite
different from and outside the field of diplomatic protection. When a
State admits into its territory foreign investments or foreign nationals it
is, as indicated in paragraph 33, bound to extend to them the protection
of the law. However, it does not thereby become an insurer of that part
of another State’s wealth which these investments represent. Every
investment of this kind carries certain risks. The real question is whether
a right has been violated, which right could only be the right of the
State to have its nationals enjoy a certain treatment guaranteed by
general international law, in the absence of a treaty applicable to the
particular case. On the other hand it has been stressed that it must be
proved that the investment effectively belongs to a particular economy.
This is, as it is admitted, sometimes very difficult, in particular where
complex undertakings are involved. Thus the existing concrete test
would be replaced by.one which might lead to a situation in which no
diplomatic protection could be exercised, with the consequence that an
unlawful act by another State would remain without remedy.

88. It follows from what has already been stated above that, where it
is a question of an unlawful act committed against a company represent-
ing foreign capital, the general rule of international law authorizes the
national State of the company alone to make a claim.

89. Considering the important developments of the last half-century,
the growth of foreign investments and the expansion of the international
activities of corporations, in particular of holding companies, which are

47
BARCELONA TRACTION (JUDGMENT) 47

often multinational, and considering the way in which the economic
interests of States have proliferated, it may at first sight appear surprising
that the evolution of law has not gone further and that no generally ac-
cepted rules in the matter have crystallized on the international plane.
Nevertheless, a more thorough examination of the facts shows that the
law on the subject has been formed in a period characterized by an
intense conflict of systems and interests. It is essentially bilateral relations
which have been concerned, relations in which the rights of both the
State exercising diplomatic protection and the State in respect of which
protection is sought have had to be safeguarded. Here as elsewhere, a
body of rules could only have developed with the consent of those
concerned. The difficulties encountered have been reflected in the evolu-
tion of the law on the subject.

90. Thus, in the present state of the law, the protection of shareholders
requires that recourse be had to treaty stipulations or special agreements
directly concluded between the private investor and the State in which the
investment is placed. States ever more frequently provide for such
protection, in both bilateral and multilateral relations, either by means
of special instruments or within the framework of wider economic
arrangements. Indeed, whether in the form of multilateral or bilateral
treaties between States, or in that of agreements between States and
companies, there has since the Second World War been considerable
development in the protection of foreign investments. The instruments in
question contain provisions as to jurisdiction and procedure in case of
disputes concerning the treatment of investing companies by the States in
which they invest capital. Sometimes companies are themselves vested
with a direct right to defend their interests against States through pre-

cribed procedures. No such instrument is in force between the Parties to
the present case.

91. With regard more particularly to human rights, to which reference
has already been made in paragraph 34 of this Judgment, it should be
noted that these also include protection against denial of justice. How-
ever, on the universal level, the instruments which embody human rights
do not confer on States the capacity to protect the victims of infringe-
ments of such rights irrespective of their nationality. It is therefore still
on the regional level that a solution to this problem has had to be sought;
thus, within the Council of Europe, of which Spain is not a member, the
problem of admissibility encountered by the claim in the present case has
been resolved by the European Convention on Human Rights, which
entitles each State which is a party to the Convention to lodge a complaint
against any other contracting State for violation of the Convention,
irrespective of the nationality of the victim.

48
BARCELONA TRACTION (JUDGMENT) 48

92. Since the general rule on the subject does not entitle the Belgian
Government to put forward a claim in this case, the question remains to
be considered whether nonetheless, as the Belgian Government has con-
tended during the proceedings, considerations of equity do not require
that it be held to possess a right of protection. It is quite true that it has
been maintained that, for reasons of equity, a State should be able, in
certain cases, to take up the protection of its nationals, shareholders in a
company which has been the victim of a violation of international law.
Thus a theory has been developed to the effect that the State of the share-
holders has a right of diplomatic protection when the State whose respon-
sibility is invoked is the national State of the company. Whatever the
validity of this theory may be, it is certainly not applicable to the present
case, since Spain is not the national State of Barcelona Traction.

93. On the other hand, the Court considers that, in the field of diplo-
matic protection as in all other fields of international law, it is necessary
that the law be applied reasonably. It has been suggested that if in a given
case it is not possible to apply the general rule that the right of diplomatic
protection of a company belongs to its national State, considerations of
equity might call for the possibility of protection of the shareholders in
question by their own national State. This hypothesis does not correspond
to the circumstances of the present case.

94. In view, however, of the discretionary nature of diplomatic pro-
tection, considerations of equity cannot require more than the possibility
for some protector State to intervene, whether it be the national State of
the company, by virtue of the general rule mentioned above, or, in a
secondary capacity, the national State of the shareholders who claim
protection. In this connection, account should also be taken of the
practical effects of deducing from considerations of equity any broader
right of protection for the national State of the shareholders. It must first
of ail be observed that it would be difficult on an equitable basis to make
distinctions according to any quantitative test: it would seem that the
owner of 1 per cent. and the owner of 90 per cent. of the share-capital
should have the same possibility of enjoying the benefit of diplomatic
protection. The protector State may, of course, be disinclined to take up
the case of the single small shareholder, but it could scarcely be denied the
right to do so in the name of equitable considerations. In that field, pro-
tection by the national State of the shareholders can hardly be graduated
according to the absolute or relative size of the shareholding involved.

95. The Belgian Government, it is true, has also contended that as
high a proportion as 88 per cent. of the shares in Barcelona Traction
belonged to natural or juristic persons of Belgian nationality, and it has
used this as an argument for the purpose not only of determining the
amount of the damages which it claims, but also of establishing its right
of action on behalf of the Belgian shareholders. Nevertheless, this does

49
BARCELONA TRACTION (JUDGMENT) 49

not alter the Belgian Government’s position, as expounded in the course
of the proceedings, which implies, in the last analysis, that it might be
sufficient for one single share to belong to a national of a given State for
the latter to be entitled to exercise its diplomatic protection.

96. The Court considers that the adoption of the theory of diplomatic
protection of shareholders as such; by opening the door to competing
diplomatic claims, could create an atmosphere of confusion and in-
security in international economic relations. The danger would be all the
greater inasmuch as the shares of companies whose activity is inter-
national are widely scattered and frequently change hands. It might
perhaps be claimed that, if the right of protection belonging to the national
States of the shareholders were considered as only secondary to that of
the national State of the company, there would be less danger of difficulties
of the kind contemplated. However, the Court must state that the essence
of a secondary right is that it only comes into existence at the time when
the original right ceases to exist. As the right of protection vested in the
national State of the company cannot be regarded as extinguished be-
cause it is not exercised, it is not possible to accept the proposition that
in case of its non-exercise the national States of the shareholders have a
right of protection secondary to that of the national State of the company.
Furthermore, study of factual situations in which this theory might pos-
sibly be applied gives rise to the following observations.

97. The situations in which foreign shareholders in a company wish
to have recourse to diplomatic protection by their own national State
may vary. It may happen that the national State of the company simply
refuses to grant it its diplomatic protection, or that it begins to exercise it
(as in the present case) but does not pursue its action to the end. It may
also happen that the national State of the company and the State which
has committed a violation of international law with regard to the com-
pany arrive at a settlement of the matter, by agreeing on compensation
for the company, but that the foreign shareholders find the compensation
insufficient. Now, as a matter of principle, it would be difficult to draw a
distinction between these three cases so far as the protection of foreign
shareholders by their national State is concerned, since in each case they
may have suffered real damage. Furthermore, the national State of the
company is perfectly free to decide how far it is appropriate for it to
protect the company, and is not bound to make public the reasons for
its decision. To reconcile this discretionary power of the company’s
national State with a right of protection falling to the shareholders’
national State would be particularly difficult when the former State has
concluded, with the State which has contravened international law with
regard to the company, an agreement granting the company compensation
which the foreign shareholders find inadequate. If, after such a settlement,
the national State of the foreign shareholders could in its turn put forward

50
BARCELONA TRACTION (JUDGMENT) 50

a claim based on the same facts, this would be likely to introduce into the
negotiation of this kind of agreement a lack of security which would be
contrary to the stability which it is the object of international law to
establish in international relations.

98. It is quite true, as recalled in paragraph 53, that international law
recognizes parallel rights of protection in the case of a person in the
service of an international organization. Nor is the possibility excluded of
concurrent claims being made on behalf of persons having dual national-
ity, although in that case lack of a genuine link with one of the two States
may be set up against the exercise by that State of the right of protection.
It must be observed, however, that in these two types of situation the
number of possible protectors is necessarily very small, and their identity
normally not difficult to determine. In this respect such cases of dual
protection are markedly different from the claims to which recognition of
a general right of protection of foreign shareholders by their various
national States might give rise.

99. It should also be observed that the promoters of a company whose
operations will be international must take into account the fact that
States have, with regard to their nationals, a discretionary power to
grant diplomatic protection or to refuse it. When establishing a company
in a foreign country, its promoters are normally impelled by particular
considerations; it is often a question of tax or other advantages offered
by the host State. It does not seem to be in any way inequitable that the
advantages thus obtained should be balanced by the risks arising from
the fact that the protection of the company and hence of its shareholders
is thus entrusted to a State other than the national State of the share-
holders.

100. In the present case, it is clear from what has been said above that
Barcelona Traction was never reduced to a position of impotence such
that it could not have approached its national State, Canada, to ask for
its diplomatic protection, and that, as far as appeared to the Court, there
was nothing to prevent Canada from continuing to grant its diplomatic
protection to Barcelona Traction if it had considered that it should do so.

101. For the above reasons, the Court is not of the opinion that, in the
particular circumstances of the present case, jus standi is conferred on the
Belgian Government by considerations of equity.

102. In the course of the proceedings, the Parties have submitted a
great amount of documentary and other evidence intended to substantiate

51
BARCELONA TRACTION (JUDGMENT) 51

their respective submissions. Of this evidence the Court has taken cogni-
zance. It has been argued on one side that unlawful acts had been com-
mitted by the Spanish judicial and administrative authorities, and that as
a result of those acts Spain has incurred international responsibility. On
the other side it has been argued that the activities of Barcelona Traction
and its subsidiaries were conducted in violation of Spanish law and
caused damage to the Spanish economy. If both contentions were
substantiated, the truth of the latter would in no way provide justification
in respect of the former. The Court fully appreciates the importance of
the legal problems raised by the allegation, which is at the root of the
Belgian claim for reparation, concerning the denials of justice allegedly
committed by organs of the Spanish State. However, the possession by
the Belgian Government of a right of protection is a prerequisite for the
examination of these problems. Since no jus standi before the Court has
been established, it is not for the Court in its Judgment to pronounce
upon any other aspect of the case, on which it should take a decision only
if the Belgian Government had a right of protection in respect of its
nationals, shareholders in Barcelona Traction.

103. Accordingly,
THE COURT

rejects the Belgian Government’s claim by fifteen votes to one, twelve
votes of the majority being based on the reasons set out in the present
Judgment.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fifth day of February, one thousand
nine hundred and seventy, in three copies, one of which will be placed in
the Archives of the Court and the others transmitted to the Government
of the Kingdom of Belgium and to the Government of the Spanish State,
respectively.

(Signed) J. L. BUSTAMANTE Y RIVERO,
President.

(Signed) S. AQUARONE,
Registrar.

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BARCELONA TRACTION (DECL. PETREN AND ONYEAMA) 52

Judge PETRÉN and Judge ONYEAMA make the following Joint Declara-
tion:

We agree with the operative provision and the reasoning of the Judg-
ment subject to the following declaration:

With regard to the nationality of Barcelona Traction, the Judgment
refers to the existence of opinions to the effect that the absence of a
genuine connection between. a company and the State claiming the right
of diplomatic protection of the company might be set up against the
exercise of such a right. In this context the Judgment also mentions the
decision in the Nottebohm case to the effect that the absence of a genuine
connecting link between a State and a natural person who has acquired
its nationality may be set up against the exercise by that State of diplo-
matic protection of the person concerned. The present Judgment then
concludes that given the legal and factual aspects of protection in the
present case there can be no analogy with the issues raised or the decision
given in the Nottebohm case.

Now in the present case the Spanish Government has asserted and the
Belgian Government has not disputed that, Barcelona Traction having
been incorporated under Canadian law and having its registered office in
Toronto, it is of Canadian nationality and Canada is qualified to protect
it.

Canada’s right of protection being thus recognized by both Parties to
the proceedings, the first question which the Court has to answer within
the framework of the third preliminary objection is simply whether,
alongside the right of protection pertaining to the national State of a
company, another State may have a right of protection of the shareholders
of the company who are its nationals. This being so, the Court has not in
this case to consider the question whether the genuine connection principle
is applicable to the diplomatic protection of juristic persons, and, still less,
to speculate whether, if it is, valid objections could have been raised
against the exercise by Canada of diplomatic protection of Barcelona
Traction.

Judge Lacus makes the following Declaration:

I am in full agreement with the reasoning and conclusions of the
Judgment, but would wish to add the following observation:

The Court has found, in the light of the relevant elements of law and
of fact, that the Applicant, the Belgian Government, has no capacity in
the present case. At the same time it has stated that the Canadian Govern-
ment’s right of protection in respect of the Barcelona Traction company
has remained unaffected by the proceedings now closed.

53
BARCELONA TRACTION (DECL. LACHS) 53

I consider that the existence of this right is an essential premise of the
Court’s reasoning, and that its importance is emphasized by the serious-
ness Gf the claim and the particular nature of the unlawful acts with
which it charges certain authorities of the respondent State.

President BUSTAMANTE Y RiveRO, Judges Sir Gerald FITZMAURICE,
TANAKA, JESSUP, MORELLI, PADILLA NERVO, GROS and AMMOUN ap-
pend Separate Opinions to the Judgment of the Court.

Judge ad hoc RIPHAGEN appends a Dissenting Opinion to the Judgment
of the Court.

(Initialled) J. L. B.-R.
(Initialled) S. A.

54