Who Killed King Bell? (Frankfurt Investment Arbitration Moot Court)

Introduction:

There are two reasons for writing this summary of this year Frankfurt Investment Arbitration Moot Court case, first is the case itself on the true story of King Rudolf Manga Bell of Douala (Cameroon) who was executed in 1914 by the German colonial administration because he opposed the expropriation of Douala. Second is the invitation to arbitrate friendly rounds with teams from India. I said in one of these sessions that this case should remind us of the histories of the East India Company and the Opium War in China, and it’s really beautiful that teams from the global South are not only learning foreign investment law by debating this case, but also reading important history too. I wish all moots, when possible, have similar cases, teaching the teams including their coaches both the history of colonialism and modern international law.

The Case:

In 1913, the German colonial administration expropriated 9’km of the 12’km settlement on the left side of the Wouri river to build a European-only harbour, relocating Douala including its native inhabitants to the hinterland, and reserving the compensation to a later decision. Issues of emergency arbitration, arbitrability, and state succession complicated the dispute for the people of Douala who wanted justice for the execution of their King. First, in July 1914, one month before the execution, the administration rejected the emergency arbitrator order to release King Bell, because the arbitrator had no jurisdiction, and King Bell was charged with treason. Second, the (fictional) arbitration agreement in the so-called Treaty of Protection (the 1884 Agreement) says it’s governed “by the principles of the law of German Empire…”. Third, following the Treaty of Versailles, France received a mandate in 1922 to succeed the German Empire in administering Douala. The French republic was to enjoy the rights and titles over the territory subject to the articles and terms of the Franco-British Declaration 1919 (Declaration), and the French Mandate of Cameroon 1922 (Mandate).

So in 1920, the son and successor of King Bell, Alexandre (real character too) filed an arbitration against the French Republic requesting the tribunal to:

1.???? Declare German Empire violated the 1884 Agreement by executing King Bell.

2.???? Order the French Republic to rehabilitate King Bell (privileges and reputations).

3.???? Order the French Republic to pay moral damages to be decided by the tribunal.

The moot nine issues to be debated by the teams are from the French response of eight objections including the sub-issue of consolidation, plus the objection to the third-party funder. I will try to summarise these issues with research questions and some additional comments. ?

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Arbitrability and Consolidation:

The five relevant procedural questions are: Did the French Republic submit itself to arbitration under any existing arbitration rules? If yes, do the rules also include emergency arbitration? (ISSUE 3); Should King Bell imprisonment be adjudicated under the PCA or SCC rules, including PCA rules on emergency arbitration? (ISSUE 4); Is there an exception to the time limits in Art. 9(4) of Appendix II of SCC Rules to make the arbitrator decision binding/relevant under international law? (ISSUE 5); even if the arbitrator had a jurisdiction, Is there any restriction on Germany in criminal matters and police powers? (ISSUE 6); and Is the claimant abusing the process by filing two claims (one against Germany) to ask for double compensation, i.e. should the claim be stayed under the principles of lis pendens? (ISSUE 8). First, if I’m arbitrating this case in Germany (which unfortunately I can’t), I expect the teams NOT to discuss this point in procedure or substance, i.e. the liability for killing King Bell. Second, the emergency arbitrator decision should be debated as an issue of non-aggravation, in other words, was not the decision in favour of non-aggravation of the main dispute i.e. expropriation of Douala? or did the 1884 Agreement include a fortiori the implied obligation not to execute a King who objects against expropriation??

The legal basis for the decision must be derived from the 1884 Agreement, that Res.1 and 3 guarantee protection of properties and persons alike. The teams will also have to answer the question whether King Bell trial conform to the international principles of the rule of law? (which from the facts of the case it did not conform). A strong team can present a compelling narrative answering this question to show that Germany and the French Republic, which enjoys the benefit of expropriation, are acting in bad faith. The respondent, on the other hand, can argue that even if principles of state succession cover liability for monetary debt, it does not include liability for violating human rights, which makes the arbitrator decision inapplicable. At the time of emergency arbitration and King Bell’s execution, the colonial administration acting governor, and the one who was representing the interests of the three trading houses was Eduard Schmidt, NOT the French Republic.?

ISSUE 3 and 4, as all issues of jurisdiction, focus on the wording of the arbitration agreement in page 2, especially sub-clause (b). The claimant must convince the tribunal with citation of cases that “any other arbitration institution or in compliance with any other arbitration rules” include the PCA and SCC rules, and that either the common principles of international law or the general principles of law applied by international tribunals (must state what are they), govern the arbitration agreement. The teams must answer this question too: does the arbitration agreement/clause extend to non-parties by virtue of state succession? Interestingly, the mandate is relevant for procedure too, and thus, like the declaration must be reread carefully. For example, does the Mandatory (France) obligation to “take into consideration native laws and customs” (Art 5.) include the arbitration agreement? Recall that this agreement starts with this sentence “if a dispute…arises…any member of the Douala people may submit his or her claims…”, and the agreement in its entirety can be regarded as part of local “laws and customs”.

ISSUE 5 is on the two time-limits for the arbitrator decision to cease to be binding according to the SCC rules. The decision was issued on 31 July 1914, but the arbitration was not commenced within 30 days from the date of this decision, and the case was not referred to the tribunal within 90 days from the date of the emergency decision (arbitration was filed on 9 February 1920). But the claimant on page 11 para. v. asserts there is an exception to these limits, because the fact that the execution was unlawful and “it would be illogical to require claimants to initiate another arbitration for his release”. Although this issue appears to be a strong defence for respondent, it needs further research by the claimant. It can be seen here that the claimant procedural case is built on non-aggravation by making the matters of execution and expropriation inseparable. Whereas for the respondent these matters are entirely separate by facts and law, i.e. they were not in control of the territory at the time of the incident, and there’s no law to hold them legally responsible for the execution either, unless there’s a property law principle that says the owner has both a legal and moral responsibilities for any wrongdoing committed on his land before the transfer of rights and titles.

Again the second issue of linkage for procedure after non-aggravation is the terms and conditions in the declaration and the mandate. See for example, Art. 6 of the mandate, which is very interesting version of the common trade law principles of national treatment, most favoured nation and concession rights (is this the first known document to contain these principles?). Art. 6 stipulates that the national treatment include securing to all nationals of other states “the same rights as are enjoyed in the territory by his own nationals in respect of…protection afforded to their person and property…subject only to the requirements of public order, and on condition of compliance with the local law.” On ISSUE 6, the claimant must show that there’s a restriction on Germany exercise of police power, namely that it is enacted in a bona fide non-discriminatory manner using proportionate regulation in accordance with the due process of law (which Germany did not respect when it executed King Bell). The claimant can also argue that pursuant to Art. 127 of the Treaty of Versailles, the native inhabitants of Douala enjoy a diplomatic protection that extend to both person and property. Lastly, on ISSUE 8 the teams must interpret Art. 15 of the SCC Rules on consolidation, and, for lis pendens, interpret Art. 181 of the Swiss Private International Law Act, the law of the seat of arbitration.

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State Succession:

We rarely see cases cited in a moot problem, but this one is different stating in para. 51 in page 10 that “France is bound by the principles of State Succession…in the Mavrommatis decision” (this case is becoming even more interesting from Cameroon to Palestine!). The main principle derived from this case is that certain rights granted by the predecessor state can be recognised under the general principle of subrogation. What is more important for the claimant, and was mentioned in the same paragraph is that “France has been exercising effective control (over Douala) since 1916”. So the claimant must show that the French republic is not only in control of the territory, but also enjoys the benefit of expropriation undertaken by Germany.

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Expropriation:

The answer to “what the claimant is asking for?” is in para. II in page 11 that “the claimant claims moral damages” and Art. 257 of the Treaty of Versailles “cannot prevent the tribunal from rendering a declaratory decision or ordering rehabilitation”. This should be helpful in answering these two relevant questions: Is France liable to pay German debt according to Art. 257? (ISSUE 2); and is the claimant, who is a successor of King Bell, entitled to moral damages under German law? if not, are they awarded under foreign investment law? i.e. what are the criteria for awarding moral damages? (ISSUE 7). What I quickly gathered from reading David Collins on the last issue is that these cases must be cited by the teams: Desert Line v. Yemen; Al-Karafi v. Libya, and on the criteria, Lemire v Ukraine, and the damages were rejected in Levi v Peru (the host state regulation was a legitimate exercise of authority…and the loss it suffered was beyond the control of both parties). Also, Art. 2 of the mandate can be cited for this issue too, with an interpretation that “material and moral well-being” include moral damages. ?

In my view the discussion of expropriation must start with these basic questions: is an expropriation of a malaria-infected land lawful? and is there a protection of public health or a prevention of disease provision in the 1884 Agreement? The claimant can answer the first question by, inter alia, citing King Bell’s emissary, Ngoso Din, who said to the newspaper Berliner Tagblott, that “land offered to us [is] in the middle of swampy region unfit for cultivation” (swampy and malaria). Furthermore, the claimant can cite the following paragraph to strengthen its expropriation claim: Sec. 32 of the 1903 Colonial Expropriation Regulation which says reinstatement of property to the natives is permitted unless expropriation "is necessary to secure for the natives the possibility for their economic existence in particular their right to homeland.” So relocation to a land unfit for cultivation breaches this section. Moreover, Art. 2(4) of the declaration on the right of relocation can be cited also.

Conclusion:

The brilliant authors of this case did not just leave us recounting true history, and applying foreign investment law to fictional clauses, but also cited from a 2022 speech by Germany Minister of State Katja Keul on the occasion of a wreath-laying ceremony at the site of the execution of King Bell, where she said: “Given all that we know, his trial didn’t remotely conform to the principles of the rule of law, even by the standards of the time…Let me put this quite bluntly: European colonialism was an unjust system.”