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Published online by Cambridge University Press: 12 April 2017
1 As to the facts of this controversy, see Deák, , The Hungarian-Rumanian Land Dispute, 1928 Google Scholar, especially Ch. III. A large number of opinions by jurists, American, Austrian, English, French, Italian, German, and Swedish, both as to the jurisdiction of the tribunal and the invalidity of the Rumanian law on agrarian reform may be found in two volumes entitled La Réforme Agraire Roumaine en Transylvanie devant la Justice Internationale et le Conseil de la Sociiti des Nations, Paris, 1928.
2 As to the history of the Finnish proposal, see Ehrich, , “Le projet de Conferer à la Cow Permanente de Justice Internationale des Fonctions d’une Instance de Recours,” Revue de Droit International et de Législation Comparée, 1931, No. 2, pp. 268 Google Scholar ff.
3 The opinions of some of them are summarized by De, Lapradelle in the Revue de Droit International for Jan.–Feb. 1928, pp. 17 Google Scholar ff, and by Brierly in the British Year Book of International Law for 1928, p. 115. See also Moore, , International Adjudications, Vol. I, pp. lxxxiii Google Scholar ff. The various grounds of nullity are discussed by Audry, in, La Révision de la Sentence Arbitral, Paris, 1914 Google Scholar.
4 But a few, for example, Fiore and Rolin-Jaequemyns, apparently do not recognize the right of either party to decide the question of invalidity, this being allowable only by a decision of another judge or tribunal.
5 Revue de Droit International, 1927, I, p. 940 and ibid., 1928, p. 5. It may be remarked, however, that MM. Politis and De Lapradelle in their note on the case of the Betsey (Recueil des Arbitrages Internationaux, Vol. I, pp. 103 ff) affirmed the right of arbitrators to decide upon their competence and that their decision is binding upon the parties.
6 Moore, , International Arbitrations, Vol. III, p. 2290 Google Scholar.
7 It should be pointed out, however, that Mr. Gore vigorously maintained that arbitrators are judges of their own competence, and with equal vigor he denied that an arbitrator who does not agree with the majority of his colleagues in respect to their competence in a particular case, has a right to withdraw from the tribunal and thus prevent it from deciding the dispute, as the Rumanian arbitrator did in the case mentioned above. Gore thus repudiated the contention of those who in the Rumanian case relied upon him as an authority in support of their view.
8 Annuaire de l’Institut, 1874, pp. 45, 84; Scott, Resolutions of the Institute of International Law, p. 27; and De, Lapradelle in the Revue de Droit International, Jan.–Feb., 1928, pp. 21 Google Scholar ff, where the discussions of the Institute are summarized.
9 Scott, Eeports to the Hague Conferences of 1899 and 1907, p. 86.
10 For Jan.–Feb., 1928, pp. 5 ff.
11 De Lapradelle also distinguishes between incompetence (lack of jurisdiction) and excte de pouvoir (unjust judgment). The former relates to the preliminary decision on the question of jurisdiction; the latter to the character of the award on the merits of the dispute. Errors as to both may be a cause of nullity but not of non-existence. The committee of jurists referred to above, to which the Finnish proposal was referred by the Council of the League, also distinguished between incompetence and excess of power. The distinction between incompetence and excess of power in so far as it applies to the decision of an arbitral tribunal has been criticized, justly it would seem, as unsound. If an arbitrator takes jurisdiction of a dispute which is not within his legal competence, he is certainly guilty of excess of power quite as much as if his award on the merits of the dispute is in contravention of international law when by the terms of the compromis he is required to decide in accordance with this law. Compare the remarks of M. Georges Ripert, in his opinion, in La Réforme Agraire en Transylvanie, Vol. I, p. 420.
12 See the third “whereas” in its award, Scott, the Hague Court Reports, p. 230
13 For 1928, p. 114.
14 Friedensrecht, p. 349.
15 “La Compétence des Tribunaux Internationaux,” Revue de Droit International et de Legislation Compare, 1925, T. VI, pp. 346-7.
16 Die Lehre von der Schiedsgerichtbarkeit, etc., p. 217.
17 Die Recktskraft internationaler Schiedssprilche, p. 162.
18 Traité de Droit International Public, T. I, pt. I l l , p. 565.
19 Opinion, in La Réforme Agraire en Transylvanie, Vol. I, p. 460.
20 Hull, , The Two Hague Conferences, pp. 400, 407 Google Scholar.
21 Fauchille, op. cit., p. 568.
22 “The Legal Remedy in Case of Excess of Jurisdiction,” British Year Book of International Law, 1928, pp. 119–120.
23 Professor Borchard, in his opinion in the Hungarian-Rumanian Optant Case, after adverting to the rule of municipal law that an allegation of absence or excess of jurisdiction is always regarded as a judicial question to be determined by a court of appeal, remarks that, in the case of an international tribunal, where there is an appellate court of the highest rank, such as the Permanent Court of International Justice, the same rule should apply, and questions of alleged abuse of jurisdiction on the part of an arbitral tribunal should be brought before this court for determination. He adds: “To refuse to permit it to be decided judicially and to insist that the difference is political seems an unusual proceeding.” La Réforme Agraire en Transylvanie, Vol. I, p. 340.
24 It may be remarked that one such case has already been submitted to the Permanent Court. It was a dispute between Bulgaria and Greece relative to the jurisdiction of an arbitrator appointed under a provision of the Treaty of Neuilly. Judgment No. 4 (Chamber of Summary Procedure), decided Sept. 12, 1924.