Arbitration AcademyState-to-State Arbitration

10 July 2012

Historic Trends: Inter-State Arbitrations(1801-1980)

Source: A.M. Stuyt, Survey of International Arbitrations 1974-1989

Historic Trends: Inter-State Arbitrations

• 178 arbitrations 1900-1945 (45 years)

• 43 arbitrations 1946-1989 (43 years)

Most common issues for arbitration:

• State Responsibility

• Territorial Claims

• Treaty Interpretation

Early General Arbitration Treaties

Treaty of Amity, Commerce and Navigation between the Kingdom of Hawaii and Italy

July 22, 1863

ARTICLE XXVI. If […] differences between the contracting parties should cause an interruption of the relations of friendship between them, […] the arbitration of a third power, equally the friend of both, shall by a common accord be appealed to.

Early General Arbitration Treaties (Reservations)

Arbitration Treaty between Greece and Spain

March 11/24, 1910

Article 1The high contracting parties engage themselves to submit to [arbitration], the differences which might arise between them, . . . Provided they concern neither the honor nor vital interests, the independence nor the sovereignty of the contracting countries.

The 1899 Hague Peace Conference

Bronze statue by Professor A.W.M. Odé1921

The 1899 Peace ConferenceThe Third Commission: Arbitration

The Netherlands Delegation

Article 35 of the 1899 Hague Convention

In case of death, retirement, or disability from any cause of one of the Arbitrators, his place shall be filled in accordance with the method of his appointment.

Article 52 of the 1899 Hague Convention

The Award, given by a majority of votes, is accompanied by a statement of reasons […].

Article 55 of the 1899 Hague Convention

The Parties can reserve in the ‘Compromis’ the right to demand the revision of the Award.

It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence on the Award […].

Article 10 of the Russian draft Convention

Arbitration will be obligatory in the following cases, so far as they do not concern the vital interests nor national honor of the contracting States […].

United States of America/Republic of MexicoThe Pious Funds Case

The Nobel Peace Prize of 1911

“Tobias Asser received the Nobel Peace Prize in 1911, for his devoted work in establishing the Permanent Court of Arbitration during the first Hague Peace Conference of 1899.”

T.M.C. Asser Instituut

1899 CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES

Article 16  In questions of a legal nature, and especially in the

interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.

. 

1899 CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES

Chapter II. On the Permanent Court of Arbitration

Article 20With the object of facilitating an immediate recourse to arbitration for international differences…, the Signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times.

www.pca-cpa.org

Structure of the PCA

Composed of three parts:

Administrative Council (Member States)

Members of the Court (Panel of Arbitrators)

International Bureau (Secretariat)

PCA ADMINISTRATIVE COUNCIL: 115 Member States

MEMBERS OF THE COURT

Article 23  …Each Signatory Power shall select four persons at the most, of

known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.

 

• Son Excellence M. Gilbert GUILLAUMEAncien juge de la Cour internationale de Justice

• M. Jean-Pierre PUISSOCHETConseiller d’État

• M. Prosper WEILProfesseur émérite à l’Université de droit, d’économie et de sciences sociales de Paris

• M. Marc PERRIN DE BRICHAMBAUTConseiller d’État

 

MEMBERS OF THE COURT

France

MEMBERS OF THE COURT

Nigeria

• The Honorable Prince BOLA AJIBOLAFormer Member of the International Law Commission of the United Nations

• The Honorable Mr. ALHAJI ABDULLAHI IBRAHIMFormer Federal Minister of Education

• Chief Christopher BAYO OJOMember, United National International Law Commission

• Ms. ADEDOYIN OYINKAN RHODES-VIVOURChartered Arbitrator; CEDR Accredited Member

• 34 Experienced legal and administrative staff

• Multinational and multilingual

• Provide support to participants and tribunals in international arbitral proceedings

International Bureau

THE PEACE PALACE

Small Hall of Justice

Unfinished tapestry of “The Glorification of Peace”

donated by France

The Great Hall of Justice

Instead of a permanent court, the Convention of 1899 gave but the phantom of a court, an impalpable specter, or to be more precise yet, it gave us a recorder with a list. […] What, may I ask, has resulted in practice from that beautiful creation of 1899?

- Tobias Asser

PCA as Failure

The Court should be able to assure the continuity of jurisprudence. The present Court has not gone far in the direction of establishing and developing international law. Each case is isolated, lacking both continuity and connection with the other.

A permanent tribunal, deciding cases in relation with each other, would evidently be a means of unifying the law.

-Joseph Choate 1907

PCA as Failure

States may be tempted to consider replacing the system of ad hoc tribunals with a standing one that is perhaps capable of producing more consistent and coherent results.

- B. Legum

Déjà vu?

Pending cases by year 2000 - 2011

58 8

11

1619 19

23

34

55

64

69

0

5

10

15

20

25

30

35

40

45

50

55

60

65

70

75

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Year

Num

ber

of c

ases

www.pca-cpa.org

Current PCA Docket

• 6 state-state arbitrations

• 37 investor-state arbitrations

• 21 arbitrations under contracts

PCA State-State Cases

PCA’s State-State disputes 2001-2011

1. Eritrea-Ethiopia Boundary Commission (2001)2. Eritrea-Ethiopia Claims Commission (2001)3. Ireland/UK (OSPAR Arbitration, 2001)4. Ireland/UK (MOX Plant Case, 2002)5. Belgium/Netherlands (Iron Rhine Arbitration, 2003) 6. Barbados/Trinidad and Tobago (2004)7. Guyana/Suriname (2004)8. Malaysia/Singapore (2004)9. [The Government of Sudan/The Sudan People’s Liberation Movement/Army (Abyei

Arbitration, 2008)] 10. [Confidential Case] (2009)11. Bangladesh/India (2010)12. Pakistan/India (2011)13. Mauritius/UK (2011)

Pending State-State Arbitrations• Bangladesh v. India (2010)

• Pakistan v. India (2011)

• Mauritius v. United Kingdom (2011)

• Croatia/Slovenia (2012)

• [Confidential Case] (2012)

• [Confidential Case] (2012)