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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Mixed Courts of the Colonial Era

Michel Erpelding

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 May 2023

History of international law — International procedural law

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

Mixed courts of the colonial era were a form of domestic courts with international participation (Mixed Courts, Other (National Courts with International Participation)) established between the first half of the nineteenth century and the first half of the twentieth century in non-Western polities. Serving as an alternative to consular jurisdiction in countries where Western states were unwilling to accept the jurisdiction of ordinary local courts over their nationals or their nationals’ interests, they blended domestic and international features. These features were not limited to their composition and included other variables such as the legal norms that created them, the substantial and procedural laws they applied, their jurisdiction, and the languages they used. This blend of domestic and international features led contemporary authors to describe them as ‘mixed’ in a way that largely corresponds to today’s characterization of certain courts as ‘hybrid’ (Dickinson, 2003, 295).

Unlike consular courts, which belonged to the judiciary of the sending state and usually applied the latter’s domestic law, and bilateral or multilateral mixed commissions or arbitral tribunals, which do not belong to a single polity and make decisions predominantly based on international legal rules or on equity, mixed courts were considered an integral part of their respective host polities’ domestic legal order and mostly reached their decisions based on local, albeit often special and Westernized, laws. The host polity of a mixed court could be a fully sovereign state, a protectorate (Protectorates and Protected States), a mandate (Mandates), or a condominium (Condominium and Coimperium). However, mixed courts also shared some features that rendered them different from ordinary local courts. In contrast to earlier mixed courts, which had been a common occurrence in multi-ethnic empires marked by legal pluralism and the reliance on personal rather than territorial jurisdiction, the mixed courts created during the nineteenth and early twentieth century were understood as a major limitation on the territorial sovereignty of their non-Western host polities (Extraterritoriality). More precisely, they were described as a response to these polities’ perceived inability to conform to the ‘standard of civilization’ used by Western international lawyers at that time (Civilized Nations) to exclude non-Western polities from the principle of sovereign equality of states (States, Sovereign Equality. Due to the growing rejection of this discriminatory standard by non-Western states and to the progress of decolonization, the mixed courts created during the nineteenth and early twentieth century were gradually replaced by national courts from the 1920s on.

Based on the political and commercial importance of their host countries, the volume of cases handled, their role as models for other mixed courts, and their impact on doctrinal discussions, three mixed courts were of particular significance during the nineteenth and twentieth centuries. The first of these institutions were the Ottoman Mixed Commercial Courts (ca 1848–1914/23). Created by the Ottoman Empire as a highly ‘strategic’ institution that would help to limit and prepare the end of Western extraterritoriality (Muslu, 2018, 185), they provided the first blueprint of a mixed court for the colonial era. The second seminal institution was the Mixed Court of the Shanghai International Settlement (1864–1927). Although perhaps also inspired by the Ottoman precedent, this court combined Chinese traditions with limited Western features and served as a model for other mixed courts in Asia (Cassel, 2020, 8–9, 24). Finally, the Mixed Courts of Egypt (1875–1949) provided the most famous and sophisticated of these models. Although loosely based on the Ottoman model, it ultimately resulted in a much more internationalized and widely discussed court system: with a bench that included members of European supreme courts, the Mixed Courts of Egypt produced a body of case law whose prominence among international lawyers rivalled that of major courts in Western countries (Hanley, 2016, 107).

In addition to these three major mixed courts of the colonial era, many other similar courts could be found during that period in countries or regions belonging to the ‘semi-periphery’ of international law. Examples include the mixed courts created in various ‘A’ Mandates such as Syria, Lebanon, Palestine, Iraq; the French Protectorates in Tunisia and Annam; the International Zone of Tangier (Mixed Court of Tangier); and even within sovereign states such as Siam which saw the creation of an ad hoc Franco-Siamese Mixed Court and several ‘Siamese International Courts’; and Ethiopia where the last mixed courts were only abolished in 1960 (Mixed Courts of Ethiopia). In French, the term ‘Tribunal mixte’ was also used to refer to the Joint Court of the New Hebrides (Vanuatu). Although this court was situated in an Anglo-French condominium whose international legal status was uncertain before its independence in 1979 (Benoist, 1972, 12–13; Farran, 2009, paras 4–5), it nevertheless shared some of the features of other mixed courts.

B.  Historical Origins

1.  Legal Pluralism and Mixed Disputes in Pre-Modern Empires

The origins of colonial-era mixed courts go back to the legal pluralism prevalent in pre-modern empires and the recourse to personal, rather than territorial, jurisdiction over members of different communities or nations. For instance, Muslim rulers in the Middle East had long granted Christian merchants the right to be represented by consuls who would also have jurisdiction over disputes between members of their community (Twiss, 1882, 250; Brinton, 1968, 1–3). The Ottoman Empire, which encouraged the development of multiple parallel jurisdictions for its various communities under the millet system and the emergence of an early form of domestic forum choice and forum shopping, continued this tradition under the form of the capitulations (Barkey, 2013, 86; Muslu, 2018, 67–80). In China as well, legal pluralism and personal jurisdiction had become firmly established by the nineteenth century (Cassel, 2012, 15–20).

In this pre-colonial context, one of the recurring questions was how to deal with mixed cases, ie cases opposing members of different communities or nations. While there are indications that local usage would sometimes follow the maxim ‘actor sequitur forum rei’ (‘the plaintiff must follow the forum of the defendant’ [translation by the author]) (Brinton, 1968, 3), in other cases local rulers would set up mixed courts comprising judges from the communities of all parties concerned. Nineteenth century European international lawyers knew of some of these courts and described them as forbearers of the mixed courts created during their lifetimes. In an influential report made before the Institut de droit international (‘IDI’) in 1882, Travers Twiss attributed a particular significance to mixed courts created within the Crusader states, notably the Kingdom of Jerusalem (1099–1291), citing the ‘Cour de la Fonde’ (‘Court of the Funduq’, ie ‘Court of the Caravanserai’ [translation by the author]), and the ‘Cour de la Chaîne’ (‘Court of the Chain’ [translation by the author]). Established by Amalric of Jerusalem in the mid-twelfth century to settle commercial and maritime disputes between foreigners and between foreigners and locals, these courts comprised a bailiff appointed by the King and six jurors being four locals and two Europeans. According to Twiss, this precedent might have inspired the creation of similar courts in several European countries, notably the ‘Cours d’Estaples’ or ‘Staple Courts’ established by the King of England and the House of Anjou at the beginning of the thirteenth century (1882, at 246–47). However, similar institutions had existed in other regions as well. For instance, in thirteenth century China, the Mongol Yuan dynasty used ‘joint conferences’ in which the competent officials would decide cases involving more than one jurisdiction. The Manchu Qing dynasty, which had revived this practice in the seventeenth century and extended it to disputes with the Portuguese at Macao in the eighteenth century, understood the nineteenth century mixed courts as an iteration of this tradition (Cassel, 2012, 17, 23–25, 67–68). Similar observations can be made about the mixed commissions established in Constantinople in 1800–1801 under the Director of the Customs Administration to settle disputes between Ottomans and foreigners, as well as between foreigners of different nationalities. These commissions comprised a roughly equal number of foreign and Ottoman members and applied both local usages and the Napoleonic Codes. Although these commissions were the direct predecessors of the Ottoman Mixed Commercial Courts established in the 1840s, they, too, were part of a much older tradition. As a matter of fact, the practice of resorting to the Director of the Customs Administration to resolve mixed disputes could be dated back to agreements concluded in the fifteenth century between Italian Republics and the Barbary States (Weber, 1907, 102–4; Muslu, 2018, 189–92).

2.  Extraterritoriality, ‘Civilization’ and Colonial-Era Dispute Settlement

The mixed courts created during the nineteenth and twentieth centuries were not mere iterations of this earlier practice, as they were established in a very different international context. With the emergence of a territorial and sovereignty-centred Western vision of international law in the eighteenth and nineteenth centuries, the legal pluralism prevailing in non-Western empires and states had increasingly been described as a form of ‘lawlessness’ to which Western extraterritorial jurisdiction constituted a natural ‘solution’ (Kayaoğlu, 2010, 34). With the balance of power increasingly shifting in their favour, Western states had already been able to have their jurisdictional privileges perpetuated through comprehensive bilateral treaties such as the Capitulations between France and Turkey in 1740 and extended to each other via most-favoured-nation clauses (Most-Favoured-Nation Clause). Based on an over-extensive interpretation of their capitulatory rights (Pélissié du Rausas, 1902, 435–40) and the maxim ‘actor sequitur forum rei’, Western powers had also been trying to extend consular jurisdiction over suits between subjects of the host state and their own citizens, as well crimes committed by foreigners against locals. Although the Ottoman Empire at large seems to have been able to resist this interpretation in civil and commercial matters (Mandelstam, 1908, 53–59, 149; Muslu, 2018, 186–92), it tolerated it in criminal cases during the first half of the nineteenth century, before successfully reclaiming the jurisdiction of local courts over these matters (Mandelstam, 1908, 149–55). Conversely, in the largely autonomous Ottoman province of Egypt, the general application of actor sequitur forum rei in mixed cases became an established, and much criticized, practice (Brinton, 1968, 5–6; Roberson, 1993, 113–14). Consular jurisdiction over crimes committed by foreigners was later also extended to several Asian countries, following the conclusion of what came to be known as unequal treaties (Treaties, Unequal; see, eg: Art 9 Treaty of Friendship, Commerce and Navigation between France and Siam (1856); Art 4 Convention between Japan and the United States (1857); Art 16 Treaty of Peace, Friendship and Commerce between China and Great Britain (1858)).

In parallel to these developments, Western powers would increasingly use the argument that full membership in the international society was only open to nations that complied with a ‘standard of civilization’, and that establishing a reformed judiciary along Western lines was one of the most important preconditions for meeting this standard (Gong, 1984, 14–15; Kayaoğlu, 2010, 60–61). Due to their ‘exceptional’ situation with regard to their limited territorial jurisdiction, even major non-Western powers such as the Ottoman Empire, China, and Japan could be presented as ‘semi-civilized’ states (Özsu, 2016, 125). With this context in mind, colonial-era mixed courts took on a new role which distinguished them from their pre-modern predecessors. Rather than constituting an established and universally accepted way of dealing with transnational disputes, they could be promoted as a transitional and exceptional ‘solution’ to the perceived institutional inferiority of non-Western polities. As opposed to the treatment of mixed cases by consular courts, or even by ordinary European judges after the annexation of the host polity, this solution could be presented as ‘respecting’ the territorial sovereignty of non-Western states, while still allowing Western powers to ‘educate’ these states in administrative and judicial matters (Hornung, 1881, 236). This underlying rationale also explained why these institutions disappeared in most countries simultaneously with, or shortly after, the end of consular jurisdiction and/or decolonization.

C.  Mixed or Hybrid Features

As a result of widely differing local circumstances and legal traditions in their respective host countries, mixed courts of the colonial era did not constitute a uniform phenomenon. Nevertheless, alongside their individual features, they shared a certain number of common characteristics that illustrated their ‘mixed’ or ‘hybrid’ character and justified their identification as a distinct category of courts alongside classical national and international courts.

10  More generally, due to their hybrid nature these institutions were also places of legal cross-fertilization. The intensity of this exchange would vary depending on local circumstances. Whereas in China the practice of mixed courts had a less marked influence on subsequent local practices (Stephens, 1992, 111–12), there were strong signs of cross-fertilization in North Africa and in the Middle East. In her analysis of the Mixed Land Property Court of Tunisia, Sana Ben Achour noted that ‘mixity’ or ‘hybridity’ were often synonymous with ‘ambivalence’: whereas the blending of Western and local features was often biased in favour of Westerners, local actors also used the mixed judiciary to defend their interests against the colonizer and to build the foundations of a modern nation-state (2007, at para 6). In the Middle East, the existence of mixed courts even contributed to the consolidation of a ‘Levantine’ group-identity, which itself was based not only on the ‘mixed’ or ‘hybrid’ origins of its members, but also on their activity as ‘translators’ of Western legal culture and techniques and their contribution to the emergence of local modern nation-states (Shlala, 2017, 4–12).

1.  Legal Basis

11  Unlike inter-state arbitral tribunals or mixed commissions, mixed courts of the colonial era were created within the legal order of the host country. Nevertheless, their creation was ultimately the result of international legal norms.

12  The most straightforward situation was that where a mixed court was directly established by way of treaty between the host polity and one or several foreign nations. Under such a treaty, the host polity would commit to submitting certain cases involving nationals of the other party or parties to a special local court, whereas the foreign party or parties would directly or indirectly renounce their claim of consular jurisdiction over these cases. This was the case of the mixed courts within the French Protectorate of Annam (Art 16 Treaty of Peace and Alliance between France and Annam (1874)), the Siamese International Courts (Art 8 Treaty between Great Britain and Siam, for the Prevention of Crime in the Territories of Chiengmai, Lakon, and Lampoonchi (1883); Convention between France and Siam modifying the Stipulations of the Treaty of 3 October 1893 (1904); Convention between Denmark and Siam concerning the Registration of and Jurisdiction over Danish Subjects in Siam (1905); Art 3 Supplementary Convention between Italy and Siam modifying Articles 8 and 9 Treaty of Friendship, Commerce, and Navigation of October 3, 1868 (1905); Treaty between Great Britain and Siam regarding the Cession and Boundaries of the Siamese Malay States, the Jurisdiction of the Siamese Courts, and the Non-Cession, etc., of Siamese Territory (1909)), the Franco-Siamese Mixed Court (Art 3 Convention relative à l’exécution du traité de paix du 3 octobre 1893 (1893)), the Joint Court of the New Hebrides (Arts 10–27 Protocol between France and Great Britain concerning the New Hebrides (1906) (‘Franco-British Protocol 1906’)), the Mixed Courts of Ethiopia (for the Special Court: Art 7 Treaty of Amity and Commerce between Ethiopia and France (1908); for the Mixed Benches: Art 2 Agreement between the United Kingdom and Ethiopia (1942)). This was also the case of the Mixed Courts of Egypt, whose Judicial Charter, although formulated as a domestic regulation (Règlement d’organisation judiciaire pour les procès mixtes en Égypte [1875] (‘ROJ’)), was the result of two international conferences and the express written approval of all 14 capitulatory powers and the Ottoman Porte (Brinton, 1968, 6–24; Hoyle, 1991, 9–11), and was considered by the Mixed Courts themselves as an international treaty (Serra v Metz, 1892).

13  Other mixed courts were created within a broader pre-existing international legal regime host polity and one or several foreign nations rather than directly resulting from a treaty specially negotiated for that purpose. For instance, although the decree formally institutionalizing the Ottoman Mixed Commercial Courts in 1848 had been elaborated in agreement with the various foreign consulates (Weber, 1907, 111; Muslu, 2018, 205–7), their actual conventional foundation lay within the capitulations adopted in earlier centuries (Weber, 1907, 99). Similarly, the Mixed Court of the Shanghai International Settlement has been analysed as an institution established ‘on an experimental basis’ that was legally grounded in general provisions of the 1858 Tianjin treaties (Art 11 Treaty of Peace, Amity and Commerce between China and the United States (1858); Arts 16 and 21 Treaty of Peace, Friendship and Commerce between China and Great Britain (1858)), while also benefitting from earlier Chinese experiences in dealing with legal pluralism (Cassel, 2020, 9). As for the Mixed Land Property Court of Tunisia, which played a key role in preparing land distribution to European settlers (Ben Achour, 2007, para 6), its establishment by the French Resident-General found its international legal basis in the provisions of the 1881 Bardo Treaty establishing France’s protectorate over Tunisia (Treaty of Guarantee between France and Tunis (1881), especially Arts 4 and 5). Similarly, France’s right to create Mixed Courts in Syria and Lebanon could be based on the Mandate over these countries conferred upon it by the Council of the League of Nations. Pursuant to that text, France had to maintain the capitulations in Syria until it had fulfilled its obligation to establish a judiciary that would provide both foreigners and ‘natives’ with the full guarantee of their rights (Arts 5 and 6 Mandate for the Administration of Syria and of the Lebanon (1922)).

14  A special situation prevailed in Tangier, where the local mixed court derived its legal basis from the combination of customary practice and two multilateral treaties, only one of which directly involved the host polity. In the nineteenth century, Morocco had allowed foreign powers to assume broad capitulatory jurisdiction and municipal government powers in Tangier (Stuart, 1955, 21–24). In 1906, the General Act of the Algeciras Conference signed by Morocco and twelve Western powers, had placed the city under the ‘principle of economic liberty without any inequality’ (Art 105 General Act of the International Conference of Algeciras relating to the Affairs of Morocco (1906)). The creation of the Mixed Court itself was the direct result of the 1923 Tangier Zone Statute. Negotiated between Britain, France, and Spain, without the direct participation of Morocco, this treaty abrogated the capitulations within the newly created International Zone of Tangier and transferred the jurisdiction over foreigners to the Mixed Court (Arts 13 and 48 Convention regarding the Organization of the Tangier Zone [1923]). This convoluted situation led the Mixed Court of Tangier to describe itself as:

an international Tribunal which holds its jurisdictional powers not by virtue of an actual delegation of sovereignty by HM the Sultan, who had already renounced his jurisdiction over the persons now subject to the Mixed Court by virtue of the capitulations, but by virtue of a collective transmission made for the appropriate purposes by both HM the Sultan and, especially, the various Powers—ie an international group—which had enjoyed these powers individually (‘un Tribunal internacional que tiene sus poderes jurisdiccionales, no en virtud de una verdadera delegación de soberanía de SM el Sultán, que en cuanto a los justiciables del Tribunal mixto, ya había hecho anteriormente abandono capitular, sino más bien en la transición que había sido hecha colectivamente a los fines oportunos por SM el Sultán y sobre todo por las diversas Potencias—grupo internacional—que los poseían ya individualmente’ [translation by the author]) (Ministère Public v Aerts and Azerraf, 1939).

2.  Composition

15  An examination of the composition of various mixed courts created during the nineteenth century and the first half of the twentieth century shows that there were essentially two types.

16  The first type of mixed court slightly favoured the local element over the foreign one with regard to the court’s composition. It was first introduced by the Ottoman Empire under the form of mixed administrative commissions created around 1800, which eventually led to the creation of Mixed Commercial Courts in the 1840s. Both the Ottoman administrative commissions and Mixed Commercial Courts were presided over by a local official, assisted by an equal number of foreign and local laymen assessors (Kebedgy, 1895, 322; Weber, 1907, 102–9; Muslu, 2018, 189–201). After 1860, the presiding magistrate and the assessors were joined by two to four additional local judges, half of whom were usually non-Muslims (Muslu, 2018, 225–30). Based on ancient capitulatory practice, foreigners could also benefit from the assistance of a drogman from their consulate. Although the primary function of drogmans was to serve as an interpreter, in fact they often acted as legal representatives of their consulates, and even participated in the deliberations of the Mixed Court, albeit without voting rights (Muslu, 2018, 255–57). The Mixed Court of the Shanghai International Settlement used a comparable system. Here, the Chinese magistrate was assisted by a foreign assessor recruited from the Chinese-speaking consular corps; in case of disagreement, they would refer the matter to the local county magistrate (Cassel, 2020, 9, 12). The Ethiopian Special Court (1922–1935), which comprised an Ethiopian judge working in consultation with the French consul (Feyissa, 2018, 6) was a further example of this model. Another variation of this system was used in the Siamese International Court, where Siamese judges would sit in presence of the foreign party’s consul or his representative. However, in this case, the foreign consul could at any time ‘evoke’ the case and transfer it to his own consular court. Although this happened on very rare occasions (Sayre, 1928, 77), it seems safe to assume that this arrangement at least partly countervailed the effects of having a court with a majority of local judges.

17  The second type of colonial-era mixed courts clearly favoured the foreign element with regard to their composition. Courts created under this model were presided over and composed in majority or even in totality of foreign judges. The Mixed Courts of Egypt were the first and best-known example of this model. With its up to 70 professional judges always comprising a two-thirds foreign majority, and all key posts, including those of presiding judges and Procureur général, being reserved to foreigners, their function as guarantors of the treaty-based rights of foreigners in Egypt could hardly be doubted (Brinton, 1968, 45, 58, 81, 131). Other examples of mixed courts with a foreign majority include the Franco-Siamese Mixed Court which was composed of a French president, as well as two French and two Siamese judges, and decided a case presented to it by a French public prosecutor (Kingdom of Siam, 1894, 6), the Mixed Land Property Court of Tunisia whose Tunisian members sometimes made up less than 1/3 of the total number of judges (Ben Achour, 2007, para 18); and the Mixed Courts in the French Mandates over Syria and Lebanon, where it must be noted, however, that the principle of a foreign majority of judges, established in 1921 after the Egyptian model, became a mere option in 1923 (Chebat, 1938, 105–8). In some of these courts, the numerical inferiority of local judges would be accentuated by forms of discriminatory treatment: in Egypt, the salaries of foreign judges would be 50% higher than those of their Egyptian counterparts (Brinton, 1968, 255); in Tunisia, the French members of local mixed court would even earn two to six times as much as their Tunisian colleagues (Ben Achour, 2007, para 17). This kind of issue did not arise within those mixed courts that were exclusively composed of foreigners. This was the case of the Mixed Court of Tangier until 1952, when a single Moroccan judge was allowed to sit on the twelve-judge bench of the International Jurisdiction of Tangier (Tamburini, 2007). Similarly, the Joint Court of the New Hebrides, whose bench comprised one British and one French judge—the practice of having the King of Spain appoint a third judge as the Court’s president was discontinued in 1939—admitted the participation of Ni-Vanuatu assessors only a few years before the country’s independence in 1979 (Woodward, 2014, 13, 60).

3.  Jurisdiction

18  Regardless of their individual subject-matter jurisdiction, the common denominator of all mixed courts of the colonial era was to have jurisdiction over matters involving nationals or subjects of different states or polities. Indeed, the very rationale for establishing mixed courts was to avoid leaving these ‘mixed cases’ to the courts of one state or polity in particular, eg ordinary local courts or consular courts. The kind of mixed cases handled by mixed courts varied. For instance, the Ottoman Mixed Commercial Courts only addressed civil and commercial disputes between foreigners and Ottoman subjects, leaving suits between foreigners of different nationalities to mixed commissions composed of representatives from the consulates of the involved parties (Salem, 1891, 415–17; Chebat, 1938, 26–27). A similar situation prevailed in Siam (Sayre, 1928, 75–77), in Annam (Art 16 Treaty of Peace and Alliance between France and Annam (1874)), and in Shanghai, where a Chinese party would have to be involved in the proceedings for the Mixed Court to have jurisdiction, unless neither foreign party had consular representation in the city (Cassel, 2012, 66). Conversely, the Mixed Courts of Egypt had exclusive jurisdiction both over cases between foreigners and local persons, as well as between foreigners of different nationalities (Art 9 ROJ). In addition to handling mixed cases, some mixed courts also had jurisdiction over cases involving nationals of a single state. For instance, the Mixed Court of the Shanghai International Settlement had jurisdiction over criminal cases and civil disputes involving only Chinese subjects (Stephens, 1992, 44–45). In certain cases, Western powers would altogether renounce their consular jurisdiction in favour of the local mixed courts, as in the International Zone of Tangier (Erpelding and Rherrousse, 2019, 52–54) or in Mandatory Syria and Lebanon (Chebat, 1938, 69–72); or restrict it to a minimum, as in Egypt between 1937 and 1949 (Arts 8 and 9 Convention Regarding the Abolition of the Capitulations in Egypt with Rules Concerning Judicial Organization (1937)). Some mixed courts would also extend their personal jurisdiction beyond the letter of their constitutive texts to cases between two ‘native’ parties by using the notion of ‘mixed interest’, as in Egypt (Hoyle, 1991, 42–43), or ‘foreign interest’, as in Shanghai (Cassel, 2020, 10) and in Mandatory Syria and Lebanon (Chebat, 1938, 72, 159, 179).

19  Although the extent and nature of the mixed courts’ subject-matter jurisdiction varied hugely, it is nevertheless possible to establish several categories of mixed courts based on this criterion.

20  The mixed courts with the broadest subject-matter jurisdiction were those established in Egypt, in the International Zone of Tangier, and in the French Mandates over Syria and Lebanon. The Joint Court of the New Hebrides might also be added to this list, although its jurisdiction over suits against the government only emerged in the 1970s (Farran, 2009, para 4). Not only did these courts handle civil and commercial disputes, disputes concerning real estate, and criminal cases—although the criminal jurisdiction of the Mixed Courts of Egypt was rather limited until 1937); they also had the power to compensate individuals and legal persons for damages sustained as a result of administrative actions (Erpelding and Rherrousse, 2019, 59; Erpelding, 2021, 52), or even, as was the case in Syria, to annul executive acts (Chebat, 1938, 198–201). In Egypt and in Tangier, the mixed courts even occasionally behaved as constitutional courts. Based on a teleological interpretation of their constitutive treaties, they would set aside domestic laws that they deemed to be in conflict with the economic freedoms and privileges guaranteed by these treaties (for Egypt: Carpi v Sania, 1876; for Tangier: Ministère Public v Aerts and Azerraf, 1939). In Egypt, this judicial activism had especially dramatic consequences, eventually leading to the deposition of the local ruler, Khedive Isma‘il, in 1879 (Hoyle, 1991, 32–35). As a result, contemporary observers were often extremely critical of these decisions, or even mixed courts as such. For instance, Martens described the Mixed Courts of Egypt as having usurped the sovereign rights of the Egyptian government (Martens, 1882, La question égyptienne et le droit international, 373). For Féraud-Giraud, the Egyptian precedent had discredited the very concept of mixed courts endowed with broad jurisdictional powers:

Once you confer general jurisdiction upon the mixed courts, you are facing a dilemma: you may either decide to place the court and the judges under the control of the native government, thus renouncing all guarantees and security, regardless of courts’ composition, leading the High Powers to reject your proposal; or you decide to ensure that judges will remain independent, thus creating a small state within the state, a judicial body more powerful than the state itself. (‘Dès que vous donnez aux cours mixtes une juridiction générale vous vous placez dans ce dilemme: ou vous mettez la cour et les juges sous la dépendance du gouvernement indigène, et alors vous supprimez les garanties, la sécurité, quel que soit le choix des magistrats, et les Hautes Puissances n’accepteront pas votre projet; ou vous donnez un caractère indépendant aux juges, mais alors vous créez un petit État dans l’État, un corps judiciaire plus puissant que l’État lui-même’ [translation by the author]) (1884, at 55).

21  In Tangier as well, local lawyers and French officials accused the local mixed court of having acted ultra vires after it had refused in 1939 to apply a local law that it deemed to be in violation of the Zone’s constitutional treaties (Ménard, 1939, 206–7). Indeed, the context of the time hardly seemed to favour the judicial activism of foreign judges: two years earlier, the 1937 Montreux Convention, which abolished the capitulations in Egypt and re-organized the Mixed Courts of Egypt for a final twelve-year transitional period, had specifically prohibited these courts from ‘[giving] decisions on the validity of the application of local laws and regulations to foreigners’ (Art 43 Annex Convention Regarding the Abolition of the Capitulations in Egypt with Rules Concerning Judicial Organization (1937) (‘Montreux Convention’)).

22  A second category of mixed courts had more limited jurisdiction, essentially covering civil and commercial disputes. This was the case of the Ottoman Mixed Commercial Courts (Weber, 1907, 134–35) and the mixed courts established in Annam (Art 16 Treaty of Peace and Alliance between France and Annam (1874)). The Mixed Court of the Shanghai International Settlement’s jurisdiction was only slightly broader as it had jurisdiction also over minor criminal offences committed by Chinese subjects (Stephens, 1992, 44–45; Cassel, 2012, 66–67).

23  Finally, it seems possible to identify a last category of ‘single-issue mixed courts’, covering the Franco-Siamese Mixed Court instituted for a single criminal trial, and the Mixed Land Property Court of Tunisia created for the better implementation of an 1885 land reform aimed at facilitating the establishment of European settlers.

4.  Applicable Law

24  Although colonial-era mixed courts would occasionally make direct use of provisions from their constitutive treaties (see sec C.3. above), they mostly applied domestic laws. These laws were often specially created to respond to Western demands of formalized and predictable legal rules.

25  Domestic laws applied by mixed courts could take the form of legal codes developed for exclusive use by the relevant mixed court in mixed cases. This was the case in Egypt where the Mixed Courts’ primary source of law could be found in six Codes drafted in the summer of 1872 by the Alexandria-based French lawyer Paul Manoury (Hoyle, 1991, 15–20), in Tangier whose Mixed Court used the seven Codes drafted in 1924 by a commission comprising two judges—one Spanish, the other French—and a British lawyer (Nefussy, 1949, 219–20), and in Tunisia where the 1885 Land Decree, more commonly known as ‘Land Code’, establishing the Mixed Land Property Court was developed by a commission of five comprising the first president of that court (Auzary-Schmaltz, 2006, 244). In other countries, the codes used in mixed disputes were also used in non-mixed disputes: this was the case in the Ottoman Empire (Muslu, 2018, 153, 162) and in Mandatory Syria and Lebanon (Chebat, 1938, 73).

26  However, the use of less detailed or codified rules was also common among mixed courts. Owing to its very limited purpose, the Franco-Siamese Mixed Court used substantial and procedural rules laid out in 24 short articles agreed between France and Siam (Rules of Procedure to be Followed before the Franco-Siamese Mixed Court (1894)). Depending on the kind of dispute before it, the Joint Court of the New Hebrides was expressly allowed to use either: the general principles and the rules laid down in its constitutive treaty; or the national law of the relevant party (Art 13 Franco-British Protocol 1906). General principles of law and foreign, especially British, laws were commonly used by the Mixed Courts of Ethiopia (Feyissa, 2018, 30). Before the Mixed Court of the Shanghai International Settlement, in the absence of any legal codes or formalized customary law, decisions were often based on what the Court would regard as ‘local custom’ or a general sense of fairness (Cassel, 2020, 17–18), although it would also apply consular directives and local regulations (Stephens, 1992, 98). Some courts could apply even less formalized rules, albeit to varying degrees. Whereas the mixed courts in Annam would rule based on equity (Art 16 Treaty of Peace and Alliance between France and Annam (1874)), the Mixed Courts of Egypt would only very occasionally ‘follow the principles of natural law and equity’ when confronted with cases of ‘silence, insufficiency, and obscurity of the law’ (Wilner, 1975, 418–29).

5.  Procedure

27  In the same way that they applied Western or Western-inspired substantive laws, many mixed courts of the colonial era followed procedures modelled after Western judicial standards. The Mixed Courts of Egypt and the Mixed Court of Tangier were arguably the most ‘Westernized’ in this regard, as they introduced a judiciary into the host polity that bore no resemblance to previous local institutions, but essentially amounted to a simplified continental European, or more precisely, French, court system. Other mixed courts, eg those established in the Ottoman Empire or in China, would remain more strongly influenced by local procedural traditions. However, irrespective of this, ‘Westernization’ could affect procedure in various ways. In the Ottoman Empire (Muslu, 2018, 267), in Egypt (Brinton, 1968, 108), and in Tunisia (Ben Achour, 2004, 62), the introduction of mixed courts often led to the replacement of oral testimony by written evidence as the preferred form of proof. In Shanghai, the ‘Westernization’ of procedure led to various changes, including Chinese parties being allowed to be represented by counsel, the use of first-hand testimony freely given in court rather than obtained by force or based on hearsay, as well as the gradual phasing out of corporal punishment and torture as means of obtaining evidence from the accused or from witnesses (Stephens, 1992, 46–47). Conversely, in Ethiopia, the Special Courts of the interwar period regularly relied on traditional Abyssinian practices, eg evidence-gathering through local communities and the imprisonment of defaulting principal debtors. Here, the ‘Westernization’ of procedural rules, ie, in this case, their alignment with the common law legal tradition, only set in after the adoption of Court Procedure Rules based on the 1908 Indian Code of Civil Procedure in 1943 (Feyissa, 2018, 20–21, 29, 42).

6.  Languages

28  Due to their composition and their jurisdiction over foreigners, mixed courts were multilingual institutions with Western languages coexisting with, and, in certain cases, even replacing those of the host countries as the court’s working languages (working language). Linguistic policies before the mixed courts evolved over time, reflecting at first the growing influence of Western powers, before sometimes yielding to the ever-stronger calls for national self-determination.

29  The first mixed courts created during the nineteenth century still relied on the local language as their official language, while tolerating the use of a Western language without prior translation in pleadings and written submissions. Practices varied according to local usage: whereas most, but not all, Ottoman Mixed Commercial Courts tolerated French as an unofficial second language next to the official Ottoman Turkish, some used Arabic instead, and others operated only in Turkish (Muslu, 2018, 260–63). Similarly, although foreign assessors in the Mixed Court of the Shanghai International Settlement were required to have Chinese language skills, as this was the Court’s official language, most of the Court’s official documents and proceedings were also published in English (Cassel, 2020, 12).

30  By contrast, Mixed Courts created later in the nineteenth century or during the interwar period granted a privileged position to Western languages. This applied even to the Franco-Siamese Mixed Court, which was established within a sovereign state for the trial of Siamese nationals. The minutes of the Court’s proceedings show that precedence was given to French over Siamese. As a result, the accused sometimes struggled to follow the translation, whether provided by court interpreters or by Siamese judges (Kingdom of Siam, 1894). Mixed Courts created within North African and Middle Eastern polities were also dominated by foreign languages. Most characteristically, although the creators of the Mixed Courts of Egypt had defined both ‘the local languages’, and Italian, French, and later English as the Courts’ official languages, in practice they mainly operated in French and foreign judges were under no obligation to acquire Arabic language skills (Brinton, 1968, 79). This was also the case before the Mixed Land Property Court of Tunisia (Auzary-Schmaltz, 2007, para 41) and the Mixed Courts established within the French Mandates over Syria and Lebanon (Chebat, 1938, 74). Before mixed courts created within a context of international territorial administration, the predominance of Western languages was even more explicit. Although Arabic was one of the official languages of the International Zone of Tangier, the only judicial languages before the local mixed court were Spanish and French, with Arabic-speaking parties being offered the service of a judicial interpreter appointed and salaried by the Court (Erpelding and Rherrousse, 2019, 76). By contrast, before the Joint Court of the New Hebrides, whose official languages were French and English, only ‘non-natives’ had the right to a full interpretation of all proceedings into their mother tongue (Art 18 Franco-British Protocol 1906).

31  With calls for decolonization growing in the interwar period, local actors increasingly challenged the privileged position of foreign languages in their domestic judiciary, sometimes obtaining concessions from Western powers. Most notably, pursuant to the 1937 Montreux Convention between Egypt and the capitulatory powers, Arabic was expressly recognized as one of the official working languages of the local mixed courts, and judgments rendered in other languages had to be translated into that language. However, Western members of the Mixed Courts or its Bar still had no obligation to be fluent in Arabic (Art 12 Annex Montreux Convention). Conversely, French officials in Syria seemed in no haste to increase the use of Arabic before the local mixed courts, even after Arabic had become Syria’s only official language in 1930 and Syrian officials were showing increasing impatience to end the use of French before domestic courts (Chebat, 1938, 75, 331). Similarly, the Mixed Court of Tangier maintained its linguistic regime even after a treaty to which Morocco was not a party transformed it into the ‘International Jurisdiction of Tangier’ in 1952 (Art 54 Convention between France, Great Britain, Italy, and Spain relating to the Reform of the International Jurisdiction of the Tangier Zone (1952)).

D.  Reception

32  During the nineteenth and twentieth centuries, mixed courts were subject to controversy and debates, both within the international legal community and within their host countries.

1.  Doctrinal Discussion

33  As a category, mixed courts were a major topic for early international lawyers, particularly within the IDI. In this context, they contributed to the emergence of international law as an autonomous, and largely Euro-centric, legal discipline (Nuzzo, 2012, 202–21). Over the course of 20 years, the IDI had two major discussions on this topic.

34  The first discussion dated back to the IDI’s Hague session of 1875 which, following a proposal by David Dudley Field, had established a commission on ‘the applicability of the customary law of nations of Europe to Oriental nations’ (‘l’application aux nations orientales du droit des gens coutumier de l’Europe’ [translation by the author]). In a memorandum presented to the IDI later that year, Field mentioned the creation of mixed courts and special procedures modelled after those created in Shanghai and in Egypt as a possible alternative to consular courts pending the alignment of the judicial practices of ‘Oriental nations’ to those of the West (Field, 1875, 659, 667–68). At the IDI’s session at Wiesbaden in 1881, Fyodor Martens suggested in his report to the IDI to consider the Mixed Courts of Egypt as a model for judicial reforms of other non-Western states (at 228–29). His colleague Joseph Hornung was more enthusiastic, promoting their generalization to all ‘Oriental’ nations as a way of reconciling the sovereignty of these states with the interests of commerce and civilization (at 233–36). However, in his second report, presented to the IDI at its Turin session one year later, Martens suggested to remain within the framework of a slightly reformed consular jurisdiction, noting that this solution might be more readily agreeable to the governments of ‘civilized states’ (at 238–40). Despite attempts by Travers Twiss (1882, at 255) and Hornung (1882, at 256–60) to revert to the earlier proposal of treaty-based mixed courts, the IDI eventually adopted Martens’s minimalist text at its 1883 Munich session (Projet concernant la procédure dans les procès mixtes entre ressortissants ou protégés d’États qui ont le droit de juridiction consulaire dans les pays d’Orient (1883)).

35  The IDI’s second discussion on mixed courts began at Heidelberg in 1887, with the creation of a new commission on mixed cases and judicial reforms in ‘Oriental’ countries. At Lausanne in 1888, the commission’s rapporteur, August von Bulmerincq, expressly recognized the importance of the Egyptian precedent. He also suggested and obtained the creation of nine sub-commissions, each devoted to one particular country or set of countries: Turkey (Renault); Egypt (Féraud-Giraud); Morocco and Tripoli (de Labra); China, Korea, and Siam (Ferguson); Japan (Twiss); Central Asia and Persia (Martens); French Protectorates (Engelhardt); British Protectorates (Lord Reay); German Protectorates (Perels, later Heimburger); Italian Protectorates (Catellani) (Nuzzo, 2012, 218). However, in the end, this ambitious programme yielded only meagre results. In his report, Féraud-Giraud expressed his doubts about the possibility of generalizing the Egyptian system, advocating instead in favour of customized bilateral solutions (1890, at 76–77). In an earlier book entirely devoted to new category of mixed courts, Féraud-Giraud had already criticized the powerful Mixed Courts of Egypt as a ‘state within the state’ and showed his preference for highly specialized mixed courts with very limited jurisdiction (1884, at 51–55, 86). Ferguson’s report, by contrast, was much more sanguine about the possibility of exporting the Egyptian mixed court system. It more or less suggested its replication in China and later Siam, with a Shanghai-based International Court of Appeals and eight District Courts in various treaty ports (1890, at 275). This extensive scheme never materialized. The commission’s labours dragged on for several years, until in 1895 its new rapporteur, Gustave Rolin-Jaequemyns, persuaded his colleagues to strike this ‘sensitive’ item from the list of the topics examined by the IDI (Nuzzo, 2012, 221).

36  In the twentieth century, only few international law publications identified mixed courts as a distinct phenomenon, and even authors who mentioned them as such would cite the Mixed Courts of Egypt as their only example (see, eg Vanselow, 1931, para 40). The existence of several mixed courts sharing a set of common features became a fact known only to a small number of specialists, such as Jasper Yeates Brinton, the penultimate President of the Mixed Court of Appeals at Alexandria, who defined them as ‘national courts, functioning under conditions fixed by international agreements for the trial not of international but of “mixed” causes’ (1968, at 11).

2.  Political Perception

37  Although proponents of mixed courts presented them as a way of reconciling the territorial sovereignty of the host state with the judicial standards exacted by Western states (eg Hornung, 1881, 236), this view was never universally shared. In their host countries, mixed courts could never develop into consensual institutions as non-Western elites had grown more and more hostile towards extraterritoriality in all its forms during the second half of the nineteenth century (Kayaoğlu, 2010, 45). Local reformers advocated for their eventual replacement by ordinary domestic courts and would sometimes try to achieve this outcome unilaterally. This was most notably the case in the Ottoman Empire, whose government officials developed various stratagems to provoke the obsolescence of the Mixed Commercial Courts and recover the full territorial sovereignty of their state. These efforts eventually culminated in the unilateral termination of the capitulations regime and the dissolution of the last mixed commercial court at Istanbul in 1914 (Muslu, 2018, 311–14), a move recognized by the Western powers in the Lausanne Peace Treaty (1923) (Art 28 Treaty of Peace with Turkey, with Related Documents Signed at Lausanne (1923)). In Egypt as well, the end of the capitulations regime as a result of the 1937 Montreux Convention entailed the dissolution of the local mixed courts in 1949, following a twelve-year transitional phase (Art 3 Montreux Convention). Despite having been created at the Egyptian government’s own initiative, the Mixed Courts of Egypt were always a precarious institution, ultimately owing their prolonged existence only to the 1882 British occupation, which made them appear to parts of the local elites as a useful check on the new rulers of the country (Brown, 1993, 33–34). The Mixed Court of the International Settlement of Shanghai was even less popular with the local authorities, especially after the 1911 revolution when the consular body assumed full control over it, although its composition remained mixed. In 1917, the Supreme Court of China ruled that the consular-controlled Mixed Court could not be considered a valid institution under any law or treaty, thus ultimately provoking its abolition in 1927 (Stephens, 1992, 70–71). In some countries, discussions about mixed courts also led to more militant acts of resistance. In Japan, plans to establish a mixed court scheme were met with violent protests, with one of their initiators, Foreign Minister Okuma Shigenobu, even suffering a bomb attack in which he lost his leg (Cassel, 2012, 159). In Mandatory Syria, the institution of mixed courts provoked repeated strikes by the local Bars (Chebat, 1938, 289).

E.  Assessment

38  Because of their close association with the discriminatory standard of civilization, Western extraterritorial privileges, and colonialism, mixed courts established in the nineteenth and twentieth centuries now appear as highly problematic institutions. Despite their—sometimes substantial—contribution to the legal culture and judicial institutions of their host polities (Brown, 1995, 106) and to local group identities (Shlala, 2017, 12), they were still, fundamentally, unequal dispute settlement mechanisms incompatible with core post-Second World War international legal principles such as the sovereign equality of states, self-determination, and the prohibition of racial and religious discrimination, as well as the condemnation of colonialism.

39  Nevertheless, because of their international composition, their jurisdiction over transnational matters, their integration into the legal order of their host polity, and their role in protecting the interests of foreign individuals and legal persons established in major international commercial and financial hubs such as Shanghai, Egypt, and Tangier, colonial-era mixed courts invite comparisons with more recent international or transnational courts and tribunals.

40  Already in the 1930s, the Procureur général of the Mixed Courts of Egypt compared this institution to the Mixed Arbitral Tribunals (‘MATs’) created by the 1919–23 Peace Treaties (van den Bosch, 1932, 139). Georges Scelle and Georges Carabiber, an Istanbul-born expert on international commercial arbitration (commercial arbitration, international), also made this comparison. Scelle rejected both the MATs and the Mixed Courts of Egypt because of their discriminatory nature (1943, at 18). Carabiber instead insisted that MATs were fundamentally different from mixed courts because of their bilateral nature, as illustrated by the non-discriminatory MATs established by the 1923 Lausanne Peace Treaty with Turkey which had also abolished the capitulations (Treaty of Peace with Turkey (1923)). In Carabiber’s view, the existence of capitulatory and mixed courts was based on differences in civilizational development (1947, at 164–65 and 192–94).

41  Colonial-era mixed courts might also be compared to certain present-day international courts and tribunals. In particular, leaving aside the particular historical context in which they were created and their fundamentally discriminatory nature, they bear some resemblance to more recent domestic courts with international participation, including such an institution as the Tribunal of International Composition in the Saar (1956–1959), but also, more generally, Constitutional and Supreme Courts with International Participation. Moreover, while the Franco-Siamese Mixed Court’s description by one author as ‘the first modern supranational criminal tribunal’ (Brockman-Hawe, 2013, 71) seems excessive, as it operated not on an international—let alone a supranational—plane, but within Siam’s national legal order, its hybrid nature might trigger associations with contemporary Mixed Criminal Tribunals. Examples of the latter include the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), the Extraordinary African Chambers, the Kosovo Specialist Chambers, and the Special Criminal Court in the Central African Republic. More importantly perhaps, colonial-era mixed courts, which provided a special forum for foreign businesses and investors, might also serve as useful historical points of reference with regard to present-day international commercial courts (for a description of several such courts, see: Requejo Isidro, 2019). In a similar vein, and in light of their function and the legal techniques they applied, some mixed courts might even invite comparisons with some of today’s genuinely international courts and tribunals. In particular, mixed courts endowed with jurisdiction over suits by foreigners against government authorities fulfilled a mission comparable to that of present-day investor-state arbitration mechanisms (Investments, International Protection). In this context, the fact that these colonial-era mixed courts were arguably more judicialized and transparent than today’s investor-state arbitral tribunals might also inform current debates about reforming or abolishing these tribunals (Legacies of Colonialism in International Adjudication). Finally, the quasi-constitutional powers unilaterally assumed by the Mixed Courts of Egypt and the Mixed Court of Tangier by invocation of their constitutive treaties could invite comparisons with the Court of Justice of the European Union (European Union, Court of Justice and General Court). Although such comparisons might seem somewhat counterintuitive, they become less so once one considers the personal continuities that existed between these institutions (Erpelding, 2020, 460–65).

Michel Erpelding Mixed Courts of the Colonial Era

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Cited Documents