1. The original Lena award is filed in the Moscow archives, bearing the signatures of Stutter and Scott (GARF 8350/4/54). It includes the appendices and seven pages from paras. 1–4, 26 and 27 of the Lena award missing from the English version published by the London Times of 3 Sept. 1930, as later reproduced by Nussbaum's 1950 article (see infra n.24) and summarised by Lauterpacht, H. (1929–1930) 5 Annual Digest Cases Nos.1 and 258. pp.3 and 426. It is possible that there was an English original version of the Lena award; but if so it has not been found.Google Scholar

2. In 1930 English arbitration was still governed by the Arbitration Act 1889; and although the 1927 McKinnon Committee on the Law of Arbitration had published its report on necessary statutory reforms (Cmnd 2817), the Arbitration Act 1934 still lay in the future.

3. See Lauterpacht, , op. cit. supra n.1 (1935), note at p.428Google Scholar; Fitzmaurice, (1957) B.Y.I.L. 246, n.2Google Scholar; Mann, (1959) B.Y.I.L. 34, 56, n.2Google Scholar; and likewise, Mann, Studies in International Law (1973), pp.264–265 (see also next footnote).Google Scholar

4. Mann, (1967) B.Y.I.L. 1, 8. In his 1950 article (infra n.24) Nussbaum mistakenly dismissed the question of the English courts' jurisdiction under the 1889 Act as “too academic to warrant discussion” (see n.27, at p.41). It was potentially most significant, if only because of the Special Case procedure under s.19 of the 1889 Act whereby the English court could require an arbitration tribunal at any stage of the proceedings “to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference”.Google Scholar

5. Lauterpacht, , op. cit. supra n.1 (1935), at p.3Google Scholar; Jessup, , A Modern Law of Nations (1949), p.33Google Scholar; McNair, (1957) B.Y.I.L, 1, 8–12Google Scholar; Fitzmauricc, (1957) B.Y.I.L., 203, 246, 249Google Scholar; Schwar-zenbcrger, International Law (1957), Vol.1, pp.43, 146, 578–579Google Scholar; Mann, (1959) B.Y.I.L. 35, 55Google Scholar; Mann, (1967) B.Y.I.L. 1, 7–8Google Scholar; Mann, , Studies in International Law (1973), pp.229, 238, 264, 475Google Scholar; Lew, , Applicable Law in International Commercial Arbitration (1978), pp.114, 124, 506Google Scholar; Kuusi, J., The Host State and the Transnational Corporation (1979), p.70Google Scholar; Oppetit, , “Les états et l'arbitrage international” (1985) Rev. arb. 493, 498Google Scholar; Schwebel, , International Arbitration: Three Salient Problems (1987), p.138Google Scholar; Brownlie, , Principles of Public International Law (4th edn; 1990), p.17Google Scholar; Jennings, and Watts, (Eds), Oppenheim's International Law (9th edn), Vol.I, p.39Google Scholar; Horacio Grigera Naón, Choice-of-law Problems in International Commercial Arbitration (1992), p.120Google Scholar and Dicey, and Morris, , Conflict of Laws (12 edn, Collins, (Ed.)), Vol.2, p.1219Google Scholar (n.86). (The Lena award also exists as a spurious footnote, possibly humorous, on “frozen law” in Redfern, and Hunter's, International Commercial Arbitranon (2nd edn, 1991), p.104, n.12.)Google Scholar

6. Texaco v. Libyan Arab Republic Arbitration (1979) 53 I.L.R. 389, 453Google Scholar; McNair, idem, p.7; and Schwebel, idem, pp.76 et seq. Mann believed Arts.21 and 22 to be the first of such clauses: Mann, (1959) B.Y.I.L. 34, 51. (As to the drafting of the 1933 concession convention, see infra.)Google Scholar

7. See Czarnikow v. Roth, Schmidt &. Co. [1922] 2 K.B. 478, 488Google Scholar, especially Scnitton LJ's dictum: “There must be no Alsatia in England where the King's writ does not run”; see also Megaw, J in Orion v. Belfort Maats [1962] 2 Lloyd's Rep. 257, 264.Google Scholar

8. See DST v. RAKOIL [1987] 2 Lloyd's Rep. 246Google Scholar and The Channel Tunnel Case [1993] A.C. 334, 368Google Scholar under the 1958 New York Arbitration Convention; and for an arbitration agreement made in England applying “Jewish religious law” see Suleimany v. Suleimany (C.A., 13 03 1995 and 30 01 1998, unrep.)Google Scholar; see also Kerr, (1993) 2 Am. Rev Int.Arb. 377Google Scholar, Boyd, (1990) 6 Arb.Int 122 and s.46(1)(b) of the Arbitration Act 1996.Google Scholar

9. Friedmann, W., The Changing Structure of International Law (1964), pp.146, 207Google Scholar (where it is mischaracterised as a mixed claims commission after the First World War); F. Francioni, “Compensation for Nationalisation of Foreign Property: The Borderland between Law and Equity” (1975) 24 I.C.L.Q. 255, 276Google Scholar; Amerasinghe, C F., “Issues of Compensation for the Takings of Alien Property in the Light of Recent Cases and Practice” (1992) 41 I.C.L.Q. 22, 37Google Scholar; Meesen, K. M., “Domestic Law Concepts in International Expropriation Law”, in Lillich, R. (Ed.), The Valuation of Nationalized Property in International Law (1987), Vol.IV pp.157, 163Google Scholar; Berger, K. P., Formalisierte oder “schleichende” Kodifizie-rung des transnationalen Witschaftsechts (1996), p.223Google Scholar; but see Schreuer, C H., “Unjustified Enrichment in International Law” (1974) 22 A.J.Comp.L. 281, 289 (“This case, although frequently quoted in support of a ‘principle against unjust enrichment’ in international law, has probably contributed nothing but a great deal of confusion.”).Google Scholar

10. B. M. Clagett, “Just Compensation in International Law: The Issues Before the Iran-United States Claims Tribunal”, in Lillich, idem, pp.31, 63; Lieblich, W. C, “Determinations by International Tribunals of the Economic Value of Expropriated Enterprises” (1990) 7 J.Int.Arb. 37, 41Google Scholar; and Mapp, W., The Iran-United States Claims Tribunal: The First Ten Years 1981–1991 (1993), pp.166, 211.Google Scholar

11. The Lena award, para.26. In paras.26 and 27 (not reproduced in The Times of 3 Sept. 1930), the Lena tribunal calculated the “present value” by multiplying the probable annual income from different parts of the concession by the relevant number of years remaining under the concession agreement It did not award in full the compensation claimed by Lena Goldfields in para. 15 of its Statement of Claim dated 27 May 1930 (see infra n.56); and Lena Goldfields made no claim in damages for separate breaches of the concession agreement see The Times, 27 Aug. 1930.

12. The Lena tribunal did not refer to The Chorzów Factory Case (1928) PCLJ Ser.A No.17.Google Scholar It derived the general principle from the German Civil Code, French, Soviet and Scots law (as considered by the House of Lords in Cantiare San Rocco SA v. Clyde Shipbuilding and Engineering Company Limited [1924] A.C. 226, reversing 1922 S.C. 723; LIX S.L.T. 520Google Scholar: see para.23 of the Lena award. In SNE v.Joc Oil (1984)Google Scholar the FTAC arbitration tribunal in Moscow (Professors Posdnyakov, Bratus and Naryshkina) applied restitution for unjust enrichment under Soviet law without any reference to the Lena award: see (1993) XVIII I.C.C.A. Yearbook 92, 101–105 and (1990) XV I.C.C.A. Yearbook 384 for the foreign enforcement proceedings under the 1958 New York Arbitration Convention.Google Scholar

13. Schwebel, op. cit. supra n.5, at pp.35–37; Schwebel, (1990) I.C.C.A. Congress Series No.5227 and 316Google Scholar; Toope, S. J., Mixed International Arbitration (1990), pp.64, 70Google Scholar; Berger, K. P., International Economic Arbitration (1993), p.121 (see also pp.530, 545)Google Scholar; and Schwebel, , Justice in International Law (1994), pp.200, 206.Google Scholar

14. The ability of an arbitration tribunal to rule on its own competence after challenge by a respondent was a principle of public international law recognised in England from 1796 (Lord Lough borough LC in the Jay Treaty cases); but the English common law rule was only fully stated by Devlin, J. in Brown v. Genossenschaft [1954] 1 Q.B. 8.Google Scholar In 1982 Professor Schrnittbof argued for a new English statutory rule allowing an “arbitrator” to decide on his own jurisdiction: “The Jurisdiction of the Arbitrator” in Schulz, and van den Berg, (Eds), The Art of Arbitration (1982), pp.285, 293; and see now s.30 of the Arbitration Act 1996.Google Scholar

15. TOPCO v. Libya, para.16 of the Preliminary Award (1979) 53 I.L.R. 389, 408–412Google Scholar; see also LIAMCO v. Libya (1982) 62 I.L.R. 140, 203Google Scholar and (1981) 20 I.L.M. 69Google Scholar; Elf Aquitaine Iran v. NIOC (1986) XI I.C.C.A. Yearbook 97, 101Google Scholar, ann. Fouchard Rev.arb. 1984.333; and the Anglo-Iranian Oil Company Case: Memorial of the United Kingdom of 10.x.1951;ICJ Pleadings (1952), p.119, where the UK argued that the unilateral termination of the 1933 concession convention by Iran (for the purpose of nationalisation) could not render ineffective its arbitration clause, whereby compensation payable to the Anglo-Iranian Company would be assessed by the arbitration tribunal and not by the Iranian Parliament (see also infra).Google Scholar

16. See Lauterpacht, op. cit. supra n.1 (1935), at pp.1, 25Google Scholar; Mann, (1967) B.Y.I.L. 1, 25Google Scholar; and Schwebel, , op. cit. supra n.5, at pp.211et seq., 161.Google ScholarJudge Schwebel recognised that the authority of the Lena award on the problem of “truncated tribunals” is diminished on the ground that the arbitration clause there expressly authorised two of the three arbitrators to render a decision where the third defaulted; concluding nonetheless that, as a matter of intention, it supported the case that a truncated international tribunal is entitled to proceed and render a valid award (see pp.214, 216)Google Scholar; see also Schwebel, (1990) loc. cit supra n.13Google Scholar; (1994), op. cit. supra n.13, at p.206Google Scholar; and I.C.C Bull, Nov. 1995, p.19.Google Scholar

17. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) ICJ Pleadings, Oral Arguments, Documents, pp.231et seq., 356–360 and 189–190, 369–379Google Scholar; see also the dissenting opinion of Judge Read, I.C.J. Rep. 1950, 242Google Scholar; see also Schwebel, , op. cit. supra n.5, at pp.226–235.Google Scholar

18. See UK Mutual Steamship Assurance Association v. Houston [1896] 1 Q.B. 567.Google Scholar On the recommendation of the 1927 McKinnon Committee (supra n.2, at para.21), English law was later changed to allow the award of any two of three arbitrators to be binding on the parties: s.4 of the Arbitration Act 1934, re-enacted as s.9 of the Arbitration Act 1950; and see now s.22(2) of the Arbitration Act 1996.

19. It is often forgotten that the first ICC arbitration in 1923 took, from reference to final award, no more than 3 hours; but speed remains attainable in sports arbitration: the FIA/FISA Contract Recognition Board in Geneva will make a final award within eight days of a dispute between driver and F1 teams; and at the Nagano 1998 Winter Olympic Games, the Canadian snow-board giant slalom gold-medallist received back his gold medal by an arbitration award made within 12 hours of his appeal: Rebagliati v. IOG, Final Award of 12 February 1998 of the CAS-TAS Ad hoc Division (Young, Paulsson and Zuchowkz) (1998) 13#6 Mealey's International Arbitration Report 12 and B1.Google Scholar

20. See the Lena award, para.15; and Kazazi, M., Burden of Proof and Related Issues (1996), pp.357–359.Google Scholar

21. See the Lena award, para.31. At English law, there was no power to order contractual interest after the date of the award. In The London Explorer [1972] A.C. 1Google Scholar, the House of Lords held that s.20 of the 1950 Act (previously s.11 of the 1934 Act) gave to an English arbitrator power only, to determine whether or not the award should carry interest at the statutory rate for an English judgment debt; but prior to 1934, even this limited power did not exist (Under s.49(3)–(4) of the Arbitration Act 1996, an English arbitrator now has power to award simple or compound interest up to and after the date of the award until payment.)

22. In Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 N.S.W.L.R. 662Google Scholar, it was held that where one of the parties to the arbitration is a governmental agency, the arbitrator had no power to make procedural orders imposing an obligation of confidentiality concerning its own documents so as to limit the executive's duty to pursue the public interest This exception was expressly left undecided in the most recent of the English cases on confidentiality: Ali Shipping Corporation v. Shipyard “Trogir” [1998] 1 Lloyd's Rep. 643, 655Google Scholar; and see the UK's Departmental Advisory Committee's 1996 Report on the Arbitration Bill, para. 16 (1997) 13 Arb.Int 278, citing the Lena award.Google Scholar

23. In addition to the report of the Lena award on 3 Sept. 1930, The Times reported the argument and evidence on 7, 8, 9, 12, 13, 14, 15, 20, 21, 22, 27 and 28 Aug. 1930.Google Scholar

24. Nussbaum, A., “The Arbitration between the Lena Goldfields, Ltd. and the Soviet Government” (1950–1951) Cornell L.Q. 31, 42 (appendix).Google ScholarEarlier, in Berlin, , Nussbaum, had contributed a case-note on the Lena award in (1931) 3 Internationales Jahrbuch für Schiedgerichtswesen 429Google Scholar (of which he was the editor). See also Sutton, , Western Technology and Soviet Economic Development 1917 to 1930 (1968), pp.95–100Google Scholar and ibid. 1930 to 1945 (1971), pp.23–27.

25. Idem, pp.38–41; Rashba, E. S., “Settlement of Disputes in Commercial Dealings with the Soviet Union” (1945), 45 Col.L.Rev. 530, 539–540.Google Scholar Dr Evsey Rashba was then a Special Fellow in Law in Columbia University: he had received an L.L.M. degree from Columbia Law School in 1944; and he died in 1973 in Lausanne.

26. The English version of this document was attached to the USSR's diplomatic note dated 4 Dec. 1930 to the British Foreign Office, rejecting the UK's note of 1 Nov. 1930 regarding the Lena award (PRO FO 371/14869). Professors Komarov and Boguslavsky in Moscow kindly supplied me with the German version; and a separate English copy was found at the British Library, along with other important materials, by my research student, Ms Ann Moore-Williams. (For convenience, this document is cited below as “USSR Documents”, with page references to the English version.)

27. These two publications, USSR Documents and Bernstein's pamphlet, were published pursuant to the decision of the Politburo's “Lena commission” in paras.5 and 6 of its protocol of 18 June 1930 (Rykov, Kamenev, Molotov and Piatakov, GARF 1446/55/1970). This Lena commission was comprised of both Politburo members and other senior Soviet officiate who undertook the bulk of the USSR's work on Lena Goldfields' concession, claim and arbitration from 1923 to 1930, subject to the approval of the Politburo.

28. Nussbaum, , op. cit. supra n.24, at p.38Google Scholar where Bernstein is described as “a Soviet economist”. Lena Goldfields informed the Foreign Office that a copy of Bernstein's pamphlet had been put before the Lena tribunal prior its award, at the instigation of the USSR: see also the Lena tribunal's opening statement at the main hearing in August 1930 ( The Times, 7 Aug. 1930). Bernstein (also transliterated as “Bernshtein”) was a legal specialist on Soviet concessions, the author of Ocherk kontsessionogo prava SSR (Outline of Soviet Law on Concessions (1930)Google Scholar; and (with Landau, B. and Mashkevich, V.), Pravovyie usloviya kontstssionnoi deyatel'nosti v. SSSR (Legal Conditions of Concession Activity in the USSR) (1931).Google Scholar

29. Pergament, M. Ya. (1930) 12 Mezhdunarodnaya zhizn' 43.Google Scholar (This is not the same work to which Professor Nussbaum refers in his 1950 article, the unseen Pergament commentary in USSR Documents cited by Rashba; Nussbaum's reference to A. J. Pergament also raiscites Rashba's reference, possibly confusing Pergament with his daughter, who was also a law professor in Moscow.)

30. At least formally, these Russian companies still retained a legal existence even in 1928: see A.G. der Manufacture I.A. Woronin and Cheshire v. Frederick Huth & Co. (1946) 79 L.I. L.R. 262, 265 (on Idelson's expert evidence of Soviet law).Google Scholar

31. See the Lena award, para.29. These Russian companies were Lenskoye, Altai District Mining Limited, Sissert Company Limited and the Pavda Company. The acquisition of their bearer shares outside the USSR, begun in late 1923, was controversial. Many Russian shareholders were living in exile under strained financial circumstances; and much resentment was expressed over share purchases made by Lena Goldfields without first disclosing the negotiations for its concession with the USSR (which would have increased the market value of the shares); and further that shares held as custodian by the Russian and English Bank (controlled by G. O. Benenson and Herbert Guedella, Lena Goldfields' principal financial backers) had been improperly sold to Lena Goldfields without their owners' authority: see the article by Prince Galitzine, A. D. in Posledniyt Novosti, 16 07 1925 (edited in Paris, )Google Scholar and Leslie Urquhart's contemporary views of this “shady operation”, summarised in Kennedy, K. H., Mining Tsar The Life and Times of Leslie Urquhart (1986), p.228Google Scholar; see also Bernstein, for the Soviet view, op. cit. supra n.27, at p.12.Google Scholar Lena Goldfields denied at the time any impropriety.

32. The main obstacles were the USSR's agreement to Arts.86 and 90 of the concession agreement, whereby (in Lena Goldfields' view) the USSR “waived its sovereign privilege of acting as supreme judge in disputes which might arise between it and the concessionaire” (Major Gwynne's written remarks at the Berlin settlement conference of 12 Sept. 1931, p.5.Google Scholar Batch. RWM 31.01 20044). The Politburo only approved of an arbitration tribunal with a neutral “super-arbitrator” on 9 Apr. 1925, to be selected from five professors in legal and mining matters from a university outside the USSR, England and the US (RTsKhIDNI 17/162/002)). For the texts of Arts. 86 and 90, see respectively infra n.46 and Appendix.

33. In fact, the decision to allow ratification was made by the Politburo on 7 Aug. 1925, on the proposal of the Main Concessions Committee (RTsKhIDNI 17/003/514).

34. See Litvinov's Note to the British Embassy's Counsellor (Strang) of 5 Sept. 1932 (PRO FO371/16376). In 1930 Litvinov had become People's Commissar on Chicherin's resignation on grounds of ill-health.

35. The full text of Art90 is set out infra in the Appendix, in English translation from the Russian original text The word “super-arbitrator” was probably a mistranslation, first into Russian and then into English, from the German word for a presiding third arbitrator “Obmann” (which is similar to the Scots legal term for chairman of an arbitration tribunal “oversown”). This German wording suggests that the Soviet draftsman took the arbitration clause from the German texts of earlier concession agreements previously granted under the New Economic Policy, of which Germany was then the principal foreign beneficiary following the 1922 Rapallo Treaty. Within the same arbitration clause, the “super-arbitrator” is also described as a “president” (in Russian); and it is possible here to see here the hand of a second non-Soviet draftsman. The text of Art 90 in the German edition of USSR Documents renders this Russian phrase as “der Obmann des Schiedsgtrichts” (p.40)Google Scholar; and it also translates the different Russian word for “president” as “Obmann”.

36. The Soviet Russian Decree No.1 on Courts of 24 Nov. 1917 allowed private persons to refer to arbitration an existing claim in a cavil case subject to certain formalities, excepting any dispute arising out of family or labour relations or if it fell within the special jurisdiction of any State court; and on the merits there was a high degree of judicial control over the award. In 1924 the procedure formed part of the RSFSR Civil Procedural Code; but this form of arbitration was never widely used in the USSR; and it was of course quite useless for a foreign company seeking to refer future commercial disputes to binding arbitration: see Kucherov, S., The Organs of Soviet Administration of Justice: Their History and Operation (1970), p.34Google Scholar; Rashba, , op. cit. supra n.25, at pp.536–538Google Scholar; and Nussbaum, , op. cit. supra n.24, at pp.36–37.Google Scholar

37. Kelman, , “Recht der Sowjet-Union” (1926) I Internationales Jahrbuch für Schieds-gerichtwesen 134, in German. (This English translation omits references in the German text.)Google Scholar

38. Soviet Russian Decree dated 23 Dec 1920 on the General Economic and Legal Conditions for Concessions; see Degras, , Soviet Documents on Foreign Policy (1978) Vol.1, p.220—where it is dated 23 Nov. 1920Google Scholar; see also Lenin's, speech on concessions of 27 Nov. 1920 at p.221.Google Scholar For a similar speech made on 20 Sept 1920, strongly advocating foreign concessions, see Pipes, (Ed), The Unknown Lenin (1996), pp.95, 112–114.Google Scholar

39. See The Times, of 31 July 1925.Google Scholar (As to the probable identity of the Russian lawyer who so advised him, see infra.)

40. See extracts from Rykov's speech to the Main Concessions Committee on 29 Nov. 1929 in Degras, op. cit. supra n.38, Vol.II (1925–1932), at p.404.Google Scholar

41. See Hélène Carrère d'Encausse, A History of the Soviet Union 1917–1953, Vol.1 (1983, trans. Ionescu), p.134Google Scholar and Lewis, , The United States and Foreign Investment Problems (1948), p.150.Google Scholar There is an English translation in the Foreign Office papers at the Public Record Office of an article dated 2 Feb. 1930 from the Moskauer Rundschau, to the debatable effect that “Liquidation of new concession businesses during the past year was carried out with full consent of both parties under conditions agreeable both to the concessionaires and the Soviet Government” (PRO FO 371/14378).

42. The Times, 3 and 31 Dec. 1929 and 7 and 28 Jan. 1930Google Scholar; and Guedella's speech to Lena Goldfields' annual general meeting on 16 Dec 1929 (Barcb. RWM 31.02 20042). The USSR had given two notices of default for non-payment of royalties under the concession agreement, by letters dated 3 Oct. and 1 Dec. 1929 (USSR Documents, pp.10, 11Google Scholar, and GARF 8350/4/57). This was a monetary claim allowed to the USSR in the Lena award, para.28; see abo the final speech by Lena Goldfields' counsel at the Aug. 1930 hearing, recorded in The Times, 28 Aug. 1930.Google Scholar

43. A copy of the original telegram exists in the Foreign Office files (PRO FO 371/14367); and see also USSR Documents, p.24 and GARF 8350/4/57.Google Scholar

44. [1922] 3 K.B. 532.Google Scholar

45. (1923) 15 L.I. L.R. 35 and 74.Google Scholar

46. Art.86 of the concession agreement provided (in English translation): “The concession shall only be terminated before its time by a decision of the arbitration court. The Government is entitled to terminate the concession before the stipulated time if, on informing the arbitration court of its intention, the latter establishes (1) that Lena was guilty of failing to make payments at the due date, in accordance with articles 50 and 61 respecting business accounts, and that the Company had failed to make such payments in full within 4 (four) months after receipt of two written reminders over a period of 2 (two) months, after the lapse of time agreed for such payments …”.

47. USSR Documents, p.6, and GARF 8350/4/57.Google Scholar

48. DrIdelson, , at the meeting with Lena Goldfields' German creditors on 6 Feb. 1930, p.3 (Barch. RWM 20043).Google Scholar After the Lena award, Idelson expressed the view that Lena Goldfields' “real claim, which could fairly easily have been substantiated, was more in the neighbourhood of twenty-two millions [pounds sterling]”: see Fitzmaurice's note of their meeting on 18 Oct 1930 (PRO FO371/14868).

49. Schmidt, L., Report of the London negotiations between Lena Goldfields and its German creditors of 23–31 01 1930 (Barch.RWM 31.01 20043).Google Scholar

50. Sir Esmond, Ovey's letter dated 6 Feb. 1930 to the Rt Hon. Arthur Henderson MP (PRO FO 371/14867).Google Scholar

51. RTsKhIDNI 17/162/008 (approving the Lena commission: Kamenev, Stomonyakov and Litvinov).

52. USSR Documents, p.25 and GARF 8350/4/7. This cable also rejected Lena Goldfield's telegram of 21 February 1930, requesting the USSR Government to undertake necessary arrangements for the suspension of Lena's business in the USSR as its organisation was entirely dislocated, adding significantly “We do not of course surrender concession but pending arbitration award must withdraw leaving all property of Lena in trust of the Government” (USSR Documents, p.34 and GARF 8350/4/7Google Scholar). By subsequent telegram of 1 Mar. 1930 to Lena Goldfields, Kamenev added to the list of articles infringed by Lena Goldfields on which the USSR was advancing its counterclaim, again without reference to Art.86 (USSR Documents, p26 and GARF 8350/4/7).

53. Undated letter from Kamenev to Rykov, probably of Feb. 1930 (GARF 5446/55/1970). The opinions there expressed doubtless derived also from Kamenev's legal advisers, although Kamenev himself had studied law at Moscow University.

54. See The Times, 14 Feb. 1930, where Guedella denied that Lena Goldflelds had received any such notice.Google Scholar

55. USSR Politburo decision of 25 Feb. 1930, appendix No.12 (RTsKhIDNI 17/162/8).

56. For the Statement of Claim, see The Times, 23 June and 7 Aug. 1930Google Scholar and the Deutsche Allgameine Zeitung, 22 June 1930.Google Scholar

57. Art.89 of the concession agreement provided, in English translation: “The basis of the present agreement on the part of both parties is one of goodwill, good faith, as well as a desire to interpret its provisions reasonably.”

58. See the Lena award, para.22, where the Lena tribunal recorded and accepted the submission of Lena Goldfields' counsel. (Unfortunately, the reports of the Aug. 1930 hearing in The Times contain no record of such submission.) As for the reference to Soviet law, both the 1920 Decree dated 23 Dec 1920 (see supra n.38 above) and Art.76 of the concession agreement precluded the USSR from making by itself any change to the concession agreement “by disposition, decree or other unilateral acts of the state authorities”; but where the concession agreement was silent, Art.75 subjected Lena Goldfields to “the existing legal code and to future enactments and ordinances of the Government of the USSR”. The Lena tribunal decided that Lena's legal position was completely protected under these provisions: see the Lena award, para.18(i). In practice, however, Lena's legal position could be changed at the USSR's will—and it was.

59. The original German text of the Lena award reads similarly for the equivalent passage in its para.22: “Insoweit wie sich eine Meinungsverschiedenheit über die Auslegung ergibt, haˇlt das Gericht diesen Standpunkt für richtig.”

60. Nussbaum, op. cit. supra n.24, at p.36; see also Mann, (1959) B.Y.I.L. 34, 56Google Scholar: “It is doubtful whether any such scission which is justifiably criticised by Nussbaum was possible in law. It is still more doubtful whether in the circumstances of the case there was any warrant for it” The characterisation of claims for unjust enrichment remains difficult: see Bennett, T. W., “Choice of Law Rules in Claims of Unjust Enrichment” (1990) 39 I.C.L.Q. 136.Google Scholar

61. I am indebted to Dr Idelson's son and granddaughter, R. F. Idelson and Tarnara Idel-soa, for unpublished information and documents relating to his life and career. There are two obituaries of Idelson: Professor de Mattos Bentwich, N. (1955) 4 I.C.L.Q. 27Google Scholar and “KSC”, idem, p.28; and see also Who Was Who (1951–1960). In Russian Commercial Bank v. Comptoir d'Escompte de Mulhouse [1925] A.C 112, the printed case for the appeal to the House of Lords contains the transcript of Idelson's expert testimony which provides biographical details not available elsewhere; and the record of benchers of Lincoln's Inn Library also contains Idelson's photograph, in full-bottomed wig and owl-like glasses, probably taken in 1947.Google Scholar

62. See A G. Marshall v. Mary Grinbaum and Bank of England (1921) 8 L.I. L.R. 342Google Scholar and R. H. Ullmann, The Anglo-Soviet Accord, ibid, p.453. (Idelson was paid 100 guineas by the Bank of England's solicitors, Freshfields & Leese: Freshfields' private letter dated 18 Aug. 1921.)

63. In 1931 Idelson advised the company with Wilfred Greene KC that the existing concession was legally binding on the Persian government; and in Jan. 1933 Idelson attended the meetings in Geneva between the British Foreign Secretary (Sir John Simon) and representatives of the Persian government aimed at an amicable settlement of the dispute, with Dr Edward Benes as the rapporteur (the Czech Republic's Foreign Secretary): see Fer-rier, R. W.. The History of the British Petroleum Company, Vol.1, p.619Google Scholar; and Bamberg, J. H., The History of the British Petroleum Company, Vol.2. pp.39et seq. Idelson had earlier advised BP on its interests in Venezuela in 1927: idem, pp. 144 et seq.Google Scholar

64. See Anglo-Iranian Case Pleadings (1952), supra n.15. This part of the memorial of 10 Oct. 1951 was prepared by Sir Hersch Lauterpacht KC. His first draft did not contain any reference to the Lena award: see Lauterpacht, E. (Ed.), International Law (being the Collected Papers of Hersch Lauterpacht QC) (1970), Vol.4, p.23.Google Scholar Prior to Iran's nationalisation in May 1951, there was a joint opinion by Idelson and Lauterpacht, undated but probably from Mar. 1951, on the operation of the 1933 concession convention's arbitration clause, instructed by Linklater & Paines for BP (PRO FO371/91526). The company invoked arbitration on 8 May 1951, appointing Lord Radcliffe as its arbitrator; but Iran failed to appoint its arbitrator and eventually the President and Vice-President of the ICJ declined to perform the task of appointing the sole arbitrator assigned to the President of the PCIJ under Art.22(d) of the concession convention. The arbitration clause was thereby rendered ineffective, as Idelson and Lauterpacht had warned in their joint opinion; see also Mann, (1967) B.Y.I.L. 1, 20–24.Google Scholar

65. [1953] 1 W.L.R. 246.Google Scholar

66. Shreter, , Systema promyshlennogo prava SSSR (System of Industrial Law of the USSR) (1924), pp.80–81.Google Scholar

67. HL Hansard, 18 Jan. 1996, col.778.Google Scholar

68. Contrast the arbitration clause in the 1922 draft concession agreement negotiated by Urquhart's Russia-Asiatic Consolidated Ltd to retrieve its former Russian mining properties in the form of a concession agreement with Soviet Russia (PRO F0371/8162). The Urqu-hart arbitration clause had Moscow as the arbitral seat whereas the Lena clause had a foreign seat selected by the arbitration tribunal; and the Urquhart default procedures were limited to failures in forming the arbitration tribunal whereupon the aggrieved party could invoice the jurisdiction of the Moscow or London courts, as the case might be. Urquhart's draft, including its arbitration clause, was personally vetoed by Lenin in Oct 1922. Urquhart's negotiations with the USSR continued until at least 1929 but his efforts were eclipsed by the Lena concession in 1925: see the Politburo's “Urquhart” and “Lena” commission decisions of 11 and 29 July 1924 (RTsKhIDNI 17/003/448 & 17/003/453); see also infra n.76.

69. E.g. see Art.12 of the New 1998 LCIA Rules “Majority Power to Continue Proceedings”; and Art. 12(5) of the New 1998 ICC Rules allowing the ICC Court to order proceedings to continue.

70. His contribution to the arbitration clause is perhaps also evidenced by its use of the Russian term “president” rather than the Soviet Russian word “super-arbitrator”: see Art.90(G), (H) infra in the Appendix and supra n.35.

71. See The Times, 3 June 1930.Google Scholar

72. Stutzer had visited the USSR in early 1929 to inspect brown coal deposits in Moscow and Tula: (see his report at Zeitschr.Deutsch.Geol.Ges. 82 (1930) 8, 5, 453–462)Google Scholar; but I have found nothing to justify the USSR's attack on Stutter's independence or impartiality. Lena Goldfields' German creditors had also investigated the six professors on the USSR's list; and after private enquiries, they canvassed Lena Goldfields for Stutter's appointment after hearing the mayor of Freiberg describe him as “a patriotic, well-read and energetic gentleman” (Kandler-Schmidt report of 8 Apr. 1930: Barch. RWM 31.01 20043).

73. Kamenev's letter dated 1 Apr. 1930 (GARF 5446/55/1970).

74. Such a show-trial had first been proposed by the Lena commission on 20 Feb. 1930, based upon the OGPU's seizures of Lena Goldfields' papers in mid-Dec. 1929 (RTsKhIDNI 17/162/008); but on 20 Apr. 1930 the Politburo approved Stalin's suggestion that this trial be organised “in such a way as to illuminate sufficiently clearly the arson at the Ridder factory organised by one of Lena's managers” (RTsKhIDNI 17/162/008).

75. See the contemporary press reports during Apr. and May 1930 in Pravda and The Times and Glazunov, M. M., “The Lena Goldfields Case” Byelleten' verkhonogo suda CCCP, 1984, No.2, 42.Google Scholar

76. For the extraordinary Russian career of Leslie Urquhart (1875–1933), particularly his failed negotiations with Soviet Russia for compensation or restitution in the form of a concession, see Martin, T. S., “The Urquhart Concession and Anglo-Soviet Relations 1921–1922” (1972) 20 Jahrbücher für Geschichte Osteuropas 551Google Scholar; Kennedy, op. cit. supra n.31; and Blainey, G. N., Mines in the Spinifex (1960); and see supra n.68.Google Scholar

77. As Pravda itself confirmed in its reports of the Lena trial. The Shakhty show-trial had opened on 18 May 1928, over which A. Y. Vyshinsky presided, against 5 German engineers and 48 Soviet specialists. Owing to strong diplomatic protests from the German government, the Germans were either acquitted or released without further imprisonment see Rosenbaum, K., “The German Involvement in the Shakhty Trial” (1962) XXI Russian Review 238 (Ohio State University Press).Google Scholar

78. In Sept 1911 and Oct 1913 Herbert Hoover travelled to Kyshtim and the Ridder Mines, staying with the Urquharts:see Nash, G. H., The Life of Herbert Hoover (1988), Vol.1, pp.426–437, Vol.2 pp.257–275.Google Scholar

79. PRO FO 371/14868. Sir Gerald, Fitzmaurice (1901–1982)Google Scholar, the Foreign Office's Third Legal Adviser (1929–1939)Google Scholar, later judge of the ICJ (1960–1973) and judge of the European Court of Human Rights (1974–1980).Google Scholar

80. USSR Documents, p.34; GARF 8350/4/7.Google Scholar

81. USSR Documents, pp.22, 35; GARF 8350/4/7.Google Scholar

82. See The Times, 3 June 1930.Google Scholar

83. RTsKhIDNI 17/162/008; GARF 5446/55/1970 (Molotov, Piatakov, Kamenev and Ksandrov).

84. USSR Documents, p.29 and GARF 8350/4/57; see also The Times, 10 May 1930.Google Scholar

85. RTsKhIDNI 17/162/008, amending the draft prepared by its Lena commission (Rykov, Kamenev, Piatakov and Molotov).

86. USSR Documents. p.31 and GARF 8350/4/57.Google Scholar

87. GARF 5446/55/1970.

88. USSR Documents. p.23 and GARF 8350/4/57.Google Scholar

89. See The Times, 10 May 1930; but see the Lena award, para.11.Google Scholar

90. An account of this second hearing is recited in The Times, 20 June 1930Google Scholar; see also the Lena award, para.14. (Until recently, it was not unusual for private arbitrations to sit in the Law Courts.)

91. See The Times, 30 June 1930.Google Scholar

92. This was alleged in a parliamentary question to the Foreign Secretary on 30 June 1930 by the Labour MP, Edward Wise CB (1885–1933), an economic adviser on foreign trade to Tsentrosoyuz (Arcos) since 1923, previously a civil servant and a senior adviser to Lloyd George on Anglo-Russian affairs from 1918 to 1922, including the Genoa Conference. (The Times has not retained any such letter.)

93. This was alleged by Dr Idebon, at the main hearing on 6 Aug. 1930 (see The Times, 7 Aug. 1930).Google Scholar

94. The Harriman concession agreement of 12 June 1925 was “amicably” dissolved in June 1928. after Harriman's abortive negotiations with Trotsky in Moscow in 1927: see Lewis, , op. cit. supra n.41. at pp. 179–180Google Scholar; and Harriman, W. Averell, America and Russia in a Changing World—A Half Century of Personal Observation (1971), pp.2–7.Google Scholar

95. Chlenov's publications include “Arbitration Clauses in Contracts with Foreign Firms”. Vneshnyaya Torgoviya 1935. No.13.3; he was a friend of the writer Erenburg, I. G. in whose memoirs he appears: see Men, Years—Life (1961, trans, Bostock, and Kapp, ). Vol.1. pp.41–42, and Vol.4, pp. 14. 100Google Scholar; and possibly fatally, he was also a Moscow schoolfriend of N. I. Bukharin.

96. Rasstrel'nye Spiski, (List of Executions), Vol.1 (1934–1940) (1993).Google Scholar which also contains the NKVD photograph of Chlenov on his arrest. (I am indebted to Professor Robert Conquest for this reference.) It lists 670 victims whose remains were buried in the Donskoi Cemetery between 1934 and 1940, including Soviet officials involved in the Lena arbitration: Arkus, G. M. (1896–1936)Google Scholar, deputy chairman of the USSR State Bank, and Piatakov, Y. L. (1890–1937).Google Scholar Others include Isaac Babel, V. E. Meyerhold, Mikhail Koltsov arid perversely the executioner's own henchman, Yezhov himself: see Shentalinsky, . Arrested Voices (1993), p.70.Google Scholar

97. Nussbaum, op. cit. supra n.24, at pp.37–38Google Scholar; see also the works listed supra n.13.

98. See Mustill, and Boyd, . Commercial Arbitration (2nd edn, 1989), pp.215, 321Google Scholar; and see also the historical controvery over Arts. 13 and 16 of the old ICC Rules on “Terms of Reference” in Craig, , Park, and Paulsson, , ICC Arbitration (2nd edn, 1990), pp.251–268, esp. p.254.Google Scholar (The New 1998 ICC Rules amend these provisions and largely avoid this controversy: see Art.19.)

99. USSR Documents, pp.29, 30 and GARF 8350/4/57.Google Scholar

100. See (1930) 12 Mezhdunarodnaia zhizn' 43, 47.Google Scholar (Art.90 did not allow the USSR unilaterally to select “an accountant, economist or lawyer”.) In USSR Documents, p.60Google Scholar, Pergament first acknowledged that neither party had the right or power to annul the concession agreement of its own accord; but second, returning to the Latin maxim, Extra compromissum arbiter nihil facere potest, he applied it to the Lena tribunal.

101. USSR Documents, p.54.Google Scholar

102. PO FO371/15605, p.10. (English law did not fully recognise the doctrine of separability until Harbour v. Kansa [1993] Q.B. 701, newly interpreting Heyman v. Darwins [1942] A.C 356Google Scholar: see the 1994 DAC Consultation Document [1994] Arb.Int 189, 225–228 and s.7 of the English Arbitration Act 1996.)Google Scholar

103. Pergament.op. cit. supra n.29.at pp.49–50.Google Scholar In his 1950 article Nussbaum (op. cit. supra n.24) accepted that an arbitration tribunal's opinion regarding its competence was not necessarily binding upon the parties and was usually subject to re-examination by a State court; but he concluded (mistakenly) that no such court remedy was available in the Lena arbitration: see idem, pp.40–41 and supra n.4.

104. Art.1 (3) of FTAC's 1975 Rules of Procedure (applied in Joc Oil, supra n.12) provided in English translation: “The question of competence of FTAC in a particular case shall be decided by the tribunal deciding the case”: see also Lebedev, S. N.. “USSR”, Int. Handbook on Comm. Arb., p. 15.Google Scholar

105. Lebedev, S. N.. Mezhdunarodnoye kommercheskii arbitrazh (International Commercial Arbitration: The Competence of Arbitrators and the Agreement of the Parties) (1988), pp. 13–14.Google Scholar A. Yakovlev identifies a MAC award of 1933 (The “San Giuseppe”) as the first decision under Soviet law on Kompetenz-Kompetenz: see “International Commercial Arbitration Proceedings and Russian Courts” (1996) 13 J.Int.Arb. 37, 42Google Scholar; other legal scholars have pointed to the FTAC decision in V/O Tractoroexport v. M/S Tarapore (1974)Google Scholar which led directly to the 1975 FTAC Rule of Procedure 1(3) on Kompetenz-Kompetenz (supra).

106. Stalin's letter of 24 Aug. 1930, Letter 60 in Lih, Naumov, and Khlevniuk, (Eds), Stalin's Letters to Molotov 1925–1936 (1995).Google Scholar

107. The Politburo confirmed the decision of the Lena commission also of 6 Sept 1930: GARF 5446/55/1970 (Rykov, Kamenev, Molotov and Piatakov).

108. Pravda of 9 Sept. 1930, signed by D. Zaslavsky. The Lena commission had recommended on 6 Sept 1930: “Koltsov or some other sketch writer should comment on the decision of the arbitration tribunal in some kind of sketch written in absolutely mocking style. The ‘verdict’ and the whole affair should provide sufficient material. The text should be approved personally by Kamenev.” Zaslavsky was a lampoonist, later infamous for attacking Gorky towards the end of his life: see , Shentalinsky, op. cit. supra n.96, at p.267.Google Scholar (Koltsov was a well-known satirical writer on current affairs, later a journalist and friend of Ernest Hemingway during the Spanish Civil War, see supra n.96).

109. New Statesman editorial of 6 Sept 1930, written just before Kingsley Martin's arrival as editor. A copy of this article in the Foreign Office files bears L. Collier's annotation “That is precisely what it did do on our information” (PRO FO 371/14868). See also W. P. and Zelda, Coates, A History of Anglo-Soviet Relations (1943), pp.467–469.Google Scholar

110. The USSR, like the US, never acceded to the 1923 Geneva Protocol or the 1927 Geneva Convention on Arbitration Awards. The USSR became a member of the League in Sept 1934.

111. See Hilton, H. J. Jr, “Commercial Arbitration in the Treaties And Agreements of the USSR” (1945) 307 US Department of State Bull 891Google Scholar, reprinted in Ginsburgs, G., The Soviet Union and International Co-operation in Legal Matters (1988).Google ScholarSee also , Nussbaum, “Treaties on Commercial Arbitration” (1942) 56 H.L.R. 219, 220Google Scholar and , Rashba, op. cit. supra n.25, at p.541.Google Scholar

112. See particularly the Government statements to the House of Commons on 13 Mar. 1933 (Baldwin), 29 Jan. 1934 (Cdville) and 4 June 1934 (Colville): HC Hansard, cols.1595, 39; and The Times, 5 and 13 June 1934.Google Scholar

113. The settlement agreement was made in Russian on 4 Nov. 1934, signed in Moscow by Arthur G. Marshall for Lena Goldfields and V. A. Trifonov of Glavkoncesskom under Decree No.2499/428 dated 3 Nov. 1934 of the USSR Council of People's Commissars. The settlement was eventually ratified by Lena Goldfields after litigation in the English High Court between Lena Goldfields and its disappointed German and Czech creditors and, after much delay, by the USSR Council of People's Commissars on 21 Mar. 1935. (The British Foreign Office translation is at Kew: PRO FO 371/18313.)

114. The Times, 9 and 15 Nov. and 5 Dec. 1940Google Scholar; see also Coates and Coates, op. cit. supra n.109, at pp.644, 648.Google Scholar

115. Vilkov, G. E., Natsionatizaaiya i mezhdunarodnoye pravo (Nationalisation and International Law) (1962), p.122Google Scholar; see also the government's statement (Whitlock) to the House of Commons on the second reading of the Foreign Compensation Bill, HC Hansard, 7 Nov. 1968, cob.1096 et seq.Google Scholar

116. See Weilamann v. Chase Manhattan Bank 192 N.Y.S.2d 469, ann. (1960) 54 A.J.I.L. 410Google Scholar and Vilkov, idem, pp.123–124.

117. The 1968 UK–USSR Agreement concerning the Settlement of Mutual Financial and Property Claims (Cmnd 3517). Art.4 provided that the UK government “undertakes further, that, from the assets indicated in Article 2, it will make a settlement, along with other claims, of claims by the holders of unredeemed Notes issued by the Government of the Union of Socialist Republics to the British joint stock companies, the Tetiuhe Mining Corporation and Lena Goldfields Ltd of London, irrespective of the nationality of such holders”. Art.2 referred (inter alia) to gold bullion still held by the Bank of England on deposit from the former central banks of Latvia, Lithuania and Estonia. The UK's disposal of gold belonging neither to the USSR nor the UK was politically and legally controversial during the passage through Parliament of the Foreign Compensation Act 1968; see Loeber, D. A., “The Problem of the Baltic Gold in Great Britain”, in Internationales Recht and Diplomatie (1968), p.75.Google Scholar (Tetiuhe was also a Siberian mining concession prematurely terminated in 1932 against USSR State notes.)

118. Misiuanas, R. J. and Taagepera, R., The Baltic States—Years of Dependence 1940–1980 (1983), p.17.Google Scholar

119. The Times, 23 Jan. 1992Google Scholar; see also HC Hansard, 23 Jan. 1992, Vol.202, col.488Google Scholar where the Prime Minister (John Major) expressed his delight that his Conservative Government had been able “to correct that smear of dishonour” created by the Labour Government in 1967–1968.

120. Long before 1976, amongst other obstacles, Lena Goldfields' claims to enforce the award or settlement were hopelessly tune-barred under both English law and Soviet law. As to the limitation periods applicable to a foreign award, see Lebedev, S. N. “How Long Does a Foreign Award Stay Enforceable?”, in The Art of Arbitration (Liber Amicorwn Pieter Sanders) (1992), p.213; and under English law see International Bulk Shipping and Services Ltd v. Minerals and Metals Trading [1996] 2 Lloyd's Rep. 474.Google Scholar

121. See K. Hobér, “Arbitration in Moscow” (1987) 3 Arb.Int 119, 158.Google Scholar

122. This English translation is made from the original Russian text of Art.90 of the concession agreement of 30 Apr. 1925 (to which para, letters have been added for ease of reference). This text of the concession agreement, as amended to 9 June 1927, was published in Moscow in 1928; and a copy was appended to the Lena award (see supra n.1). An earlier version of 1925 fa available at the US Library of Congress and from IDC Microfiche. In minor respects, this translation differs from the incomplete translations in USSR Documents and the English version of the Lena award published in The Times, 3 Sept 1930.Google Scholar It retains however the phrase “arbitration court” which in Russian could now be understood as “arbitration tribunal”.