| Protocol relating
to Provisions for Regulating the Question of Contracts, Periods of Prescription and
Negotiable Intruments, and the Question of Contracts for Insurance, upon the Restoration
of Peace with Japan
The Undersigned, duly authorized to
that effect, have agreed on the following provisions for regulating the question of
Contracts, Periods of Prescription and Negotiable Instruments, and the question of
Contracts of Insurance, upon the restoration of peace with Japan:
CONTRACTS, PRESCRIPTION AND NEGOTIABLE
INSTRUMENTS
A. CONTRACTS
1. Any contract which required for its execution
intercourse between any of the parties thereto having become enemies as defined in Part F
shall, subject to the exceptions set out in paragraphs 2 and 3 below, be deemed to have
been dissolved as from the time when any of the parties thereto became enemies. Such
dissolution, however, is without prejudice to the provisions of Articles 15 and 18 of the Treaty of Peace signed this day, nor shall it relieve any
party to the contract from the obligation to repay amounts received as advances or as
payments on account and in respect of which such party has not rendered performance in
return.
2. Notwithstanding the provisions of paragraph 1 above,
there shall be excepted from dissolution and, without prejudice to the rights contained in
Article 14 of the Treaty of Peace signed this day, there shall remain in force such parts
of any contract as are severable and did not require for their execution intercourse
between any of the parties thereto, having become enemies as defined in part F. Where the
provisions of any contract are not so severable, the contract shall be deemed to have been
dissolved in its entirety. The foregoing shall be subject to the application of domestic
laws, orders or regulations made by a signatory hereto which is an Allied Power under the
said Treaty of Peace and having jurisdiction over the contract or over any of the parties
thereto and shall be subject to the terms of the contract.
3. Nothing in part A shall be deemed to invalidate
transactions lawfully carried out in accordance with a contract between enemies if they
have been carried out with the authorization of the Government concerned being the
Government of a signatory hereto which is an Allied Power under the said Treaty of Peace.
4. Notwithstanding the foregoing provisions, contracts of
insurance and reinsurance shall be dealt with in accordance with the provisions of parts D
and E of the present Protocol.
B. PERIODS OF PRESCRIPTION
1. All periods of prescription or limitation of right of
action or of the right to take conservatory measures in respect of relations affecting
persons or property, involving nationals of the signatories hereto who, by reason of the
state of war, were unable to take judicial action or to comply with the formalities
necessary to safeguard their rights, irrespective of whether these periods commenced
before or after the outbreak of war, shall be regarded as having been suspended, for the
duration of the war in Japanese territory on the one hand, and on the other hand in the
territory of those signatories which grant to Japan, on a reciprocal basis, the benefit of
the provisions of this paragraph. These periods shall begin to run again on the coming
into force of the Treaty of Peace signed this day. The provisions of this paragraph shall
be applicable in regard to the periods fixed for the presentation of interest or dividend
coupons or for the presentation for payment of securities drawn for repayment or repayable
on any other ground, provided that in respect of such coupons or securities the period
shall begin to run again on the date when money becomes available for payments to the
holder of the coupon or security.
2. Where, on account of failure to perform any act or to
comply with any formality during the war, measures of execution have been taken in
Japanese territory to the prejudice of a national of one of the signatories being an
Allied Power under the said Treaty of Peace, the Japanese Government shall restore the
rights which have been detrimentally affected. If such restoration is impossible or would
be inequitable the Japanese Government shall provide that the national of the signatory
concerned shall be afforded such relief as may be just and equitable in the circumstances.
C. NEGOTIABLE INSTRUMENTS
1. As between enemies, no negotiable instrument made
before the war shall be deemed to have become invalid by reason only of failure within the
required time to present the instrument for acceptance or payment, or to give notice of
non-acceptance or non-payment to drawers or endorsers, or to protest the instrument, nor
by reason of failure to complete any formality during the war.
2. Where the period within which a negotiable instrument
should have been presented for acceptance or for payment, or within which notice of
non-acceptance or non-payment should have been given to the drawer or endorser, or within
which the instrument should have been protested, has elapsed during the war, and the party
who should have presented or protested the instrument or have given notice of
non-acceptance or non-payment has failed to do so during the war, a period of not less
than three months from the coming into force of the Treaty of Peace signed this day shall
be allowed within which presentation, notice of non-acceptance or non-payment, or protest
may be made.
3. If a person has, either before or during the war,
incurred obligations under a negotiable instrument in consequence of an undertaking given
to him by a person who has subsequently become an enemy, the latter shall remain liable to
indemnify the former in respect of these obligations, notwithstanding the outbreak of war.
D. INSURANCE AND REINSURANCE CONTRACTS
(OTHER THAN LIFE) WHICH HAD NOT TERMINATED BEFORE THE DATE AT WHICH THE PARTIES BECAME
ENEMIES
1. Contracts of Insurance shall be deemed not to have been
dissolved by the fact of the parties becoming enemies, provided that the risk had attached
before the date at which the parties became enemies, and the Insured had paid, before that
date, all moneys owed by way of premium or consideration for effecting or keeping
effective the Insurance in accordance with the Contract.
2. Contracts of Insurance other than those remaining in
force under the preceding clause shall be deemed not to have come into existence, and any
moneys paid thereunder shall be returnable.
3. Treaties and other Contracts of Reinsurance, save as
hereinafter expressly provided, shall be deemed to have been determined as at the date the
parties became enemies, and all cessions thereunder shall be cancelled with effect from
that date. Provided that cessions in respect of voyage policies which had attached under a
Treaty of Marine Reinsurance shall be deemed to have remained in full effect until their
natural expiry in accordance with the terms and conditions on which the risk had been
ceded.
4. Contracts of Facultative Reinsurance, where the risk
had attached and all moneys owed by way of premium or consideration for effecting or
keeping effective the Reinsurance had been paid or set off in the customary manner, shall,
unless the Reinsurance Contract otherwise provides, be deemed to have remained in full
effect until the date at which the parties became enemies and to have been determined on
that date.
Provided that such Facultative Reinsurances in respect of
voyage policies shall be deemed to have remained in full effect until their natural expiry
in accordance with the terms and conditions on which the risk had been ceded.
Provided further that Facultative Reinsurances in respect
of a Contract of Insurance remaining in force under clause 1 above shall be deemed to have
remained in full effect until the expiry of the original Insurance.
5. Contracts of Facultative Reinsurance other than those
dealt with in the preceding clause, and all Contracts of Excess of Loss Reinsurance on an
"Excess of Loss Ratio" basis and of Hail Reinsurance (whether facultative or
not), shall be deemed not to have come into existence, and any moneys paid thereunder
shall be returnable.
6. Unless the Treaty or other Contract of Reinsurance
otherwise provides, premiums shall be adjusted on a pro rata temporis basis.
7. Contracts of Insurance or Reinsurance (including
cessions under Treaties of Reinsurance) shall be deemed not to cover losses or claims
caused by belligerent action by either Power of which any of the parties was a national or
by the Allies or Associates of such Power.
8. Where an insurance has been transferred during the war
from the original to another Insurer, or has been wholly reinsured, the transfer or
reinsurance shall, whether effected voluntarily or by administrative or legislative
action, be recognized and the liability of the original Insurer shall be deemed to have
ceased as from the date of the transfer or reinsurance.
9. Where there was more than one Treaty or other Contract
of Reinsurance between the same two parties, there shall be an adjustment of accounts
between them, and in order to establish a resulting balance there shall be brought into
the accounts all balances (which shall include an agreed reserve for losses still
outstanding) and all moneys which may be due from one party to the other under all such
contracts or which may be returnable by virtue of any of the foregoing provisions.
10. No interests shall be payable by any of the parties
for any delay which, owing to the parties having become enemies, has occurred or may occur
in the settlement of premiums or claims or balances of account.
11. Nothing in this part of the present Protocol shall in
any way prejudice or affect the rights given by Article 14 of the Treaty of Peace signed
this day.
E. LIFE INSURANCE CONTRACTS
Where an insurance has been transferred during the war
from the original to another Insurer or has been wholly reinsured, the transfer or
reinsurance shall, if effected at the instance of the Japanese administrative or
legislative authorities, be recognized, and the liability of the original Insurer shall be
deemed to have ceased as from the date of the transfer or reinsurance.
F. SPECIAL PROVISION
For the purposes of the present Protocol, natural or
juridical persons shall be regarded as enemies from the date when trading between them
shall have become unlawful under laws, orders, or regulations to which such persons or the
contracts were subject.
FINAL ARTICLE
The present Protocol is open for signature by Japan and
any State signatory to the Treaty of Peace with Japan signed this day, and shall, in
respect of the matters with which it deals, govern the relations between Japan and each of
the other States signatory to the present Protocol as from the date when Japan and that
State are both bound by the said Treaty of Peace.
The present Protocol shall be deposited in the archives of
the Government of the United States of America which shall furnish each signatory State
with a certified copy thereof.
IN FAITH WHEREOF
the undersigned Plenipotentiaries have signed the present Protocol.
DONE at the city of San Francisco this
eighth day of September 1951, in the English, French, and Spanish languages, all being
equally authentic, and in the Japanese language.
For Argentina:
For Australia:
Percy C. SPENDER
For Belgium:
Paul VAN ZEELAND SILVERCRUYS
For Bolivia:
For Brazil:
For Cambodia:
PHLENG
For Canada:
Lester B. PEARSON
R.W. MAYHEW
For Ceylon:
J.R. JAYEWARDENE
G.C.S. COREA
R.G. SENANAYAKE
For Chile:
For Colombia:
For Costa Rica:
For Cuba:
For the Dominican Republic:
V. ORDÓÑEZ
Luis F. THOMEN
For Ecuador:
For Egypt:
Kamil A. RAHIM
For El Salvador:
For Ethiopia:
Men YAYEJIJRAD
For France:
SCHUMANN
H. BONNET
Paul-Émile NAGGIAR
For Greece:
A.G. POLITIS
For Guatemala:
For Haiti:
Jacques N. LÉGER
Gust. LARAQUE
For Honduras:
For Indonesia:
Ahmad SUBARDJO
For Iran:
A.G. ARDALAN
For Iraq:
A.I. BAKR
For Laos:
SAVANG
For Lebanon:
Charles MALIK
For Liberia:
Gabriel L. DENNIS
James ANDERSON
Raymond HORACE
J. Rudolf GRIMES
For the Grand Duchy of Luxembourg:
Hugues LE GALLAIS
For Mexico:
For the Netherlands:
D.U. STIKKER
J.H. VAN ROIJEN
For New Zealand:
For Nicaragua:
For Norway:
For Pakistan:
ZAFRULLAH KHAN
For Panama:
For Peru:
For the Republic of the Philippines:
For Saudi Arabia:
Asad AL-FAQIH
For Syria:
F. EL-KHOURI
For Turkey:
Feridun C. ERKIN
For the Union of South Africa:
For the United Kingdom of
Great Britain and Northern Ireland:
Herbert MORRISON
Kenneth YOUNGER
Oliver FRANKS
For the United States of America:
For Uruguay:
José A. MORA
For Venezuela:
For Viet-Nam:
T.V. HUU
T. VINH
D. THANH
BUU KINH
For Japan:
Shigeru YOSHIDA
Hayato IKEDA
Gizo TOMABECHI
Niro HOSHIJIMA
Muneyoshi TOKUGAWA
Hisato ICHIMADA
The following information is provided by
the United States of America: The protocol
was signed on behalf of New Zealand by
His Excellency Sir Carl Berendsen on
October 3, 1951.
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