[...]XI, p. 93" 123
The Tribunal is . . . of the opinion that the general principle of the responsibility of States implies a special responsibility in the matter of delay in the payment of a money debt, unless the existence of a contrary international custom is proven.
[...]XI, p. 93"
The tribunal . . . is of the opinion . .. that there is no reason why the great analogy which exists between the different forms of responsibility should not be taken into account; this analogy appears particularly close between interest called moratory and interest called compensatory. The analogy appears to be complete between the allowance of interest from a certain date upon valuing the responsibility in money, and the allowance of interest an the principal determined by agreement and remaining unpaid by a delinquent debtor. The only difference is that, in one case, the interest is allowed by the judge, since the debt was not exigible, and in the other case the amount of the debt was determined by agreement and the interest becomes exigible automatically in case of demand in due form of law.
To weaken this close analogy, the Sublime Porte must prove the existence of a custom - of precedents in accordance with which moratory interest in the restricted sense of the word had been refused because it was moratory interest, - or the existence of a custom derogatory, in the matter of a pecuniary debt, to the general principles of responsibility. The tribunal is of the opinion that such proof not only has not been given, but, an the contrary, the Imperial Russian Government has been able to reinforce its position by several arbitral awards in which moratory interest124
has been allowed to States, in some cases, it is true, with shades of difference, and to a certain extent debatable.
[...]XI, p. 95"
To determine in what this special responsibility, which is incumbent upon a State debtor for a liquid and exigible conventional debt, consists, it is now necessary to examine, proceeding by analogy as in the case of the arbitral awards which have been pleaded, the general principles of public and private law in this matter, as much from the point of view of the extent of this responsibility as of the contrary exceptions
[...]XI, p. 95"
All the private legislation of the States forming the European concert admits, as did formerly the Roman law, the obligation to pay at least interest for delayed payments as legal indemnity when it is a question of the non-fulfilment of an obligation consisting in the payment of a sum of money fixed by convention, liquid and exigible, such interest to be paid at least from the date of the demand made upon the debtor in due form of law. Some of this legislation goes farther and considers that such demand is already made upon the debtor an the date when the debt falls due, or admits complete reparation for damages instead of simple legal interest . . . .
Hence there is no occasion, and it would be contrary to equity, to assume that a debtor State is subject to stricter responsibility than a private debtor in most European legislation. Equity requires, as its theory indicates and as the Imperial Russian Government itself admits. that there shall be notice, demand in due form of law addressed to the debtor, for a sum which does not bear interest. The same reasons require that the demand in due form of law shall mention expressly the interest, and combine to set aside responsibility for more than simple legal interest.