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26 - On Whether the Breach by a State of a Contract With an Alien is a Breach of International Law

Published online by Cambridge University Press:  06 November 2009

Stephen M. Schwebel
Affiliation:
International Court of Justice
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Summary

The question of whether the breach by a State of a contract between that State or its agency and an alien is a breach of international law has long divided States and scholars. For example, in the Ambatielos case, the Greek Government maintained that the contract between His Majesty's Government in the United Kingdom and Mr. M.N.E. Ambatielos

was one between a State and a foreign national, with the result that, according to the admitted principles of international law, the Government of the State incurs a direct responsibility on breach of the contract, for which the Government of the foreign national thereby injured is entitled to seek redress.

Greece invoked Professor Borchard's conclusion that:

It is a rule, which it is believed has been accepted generally, that the contracts entered into by a State with foreigners, create obligations which the State must fulfil. With reservations as to the exhaustion of local remedies it will be responsible for the non-execution towards the foreign State.

These contentions were resisted by the British Government. In the Ambatielos proceedings, it maintained that:

It is plain that, according to the well-settled principles of international law, the fact that one party to the contract was a Greek national and the other a department of His Majesty's Government in the United Kingdom, does not entitle the Greek Government, as is suggested in your note, to seek redress on behalf of its national on the ground of breach of contract. […]

Type
Chapter
Information
Justice in International Law
Selected Writings
, pp. 425 - 435
Publisher: Cambridge University Press
Print publication year: 1994

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