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Conclusions of the Parties in the Procedure of the Permanent Court of International Justice

Published online by Cambridge University Press:  12 April 2017

A. H. Feller
A. H. Feller*
Affiliation:
Of the Bureau of International Research of Harvard University and Radcliffe College
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Extract

The Statute and Rules of the Permanent Court of International Justice are only remotely analogous to the detailed codes of civil procedure with which lawyers practising before municipal courts are familiar. The instruments governing the procedure of the Permanent Court are sketch maps rather than meticulously detailed charts for the procedural voyage. Nor is the body of tradition of international arbitral procedure sufficiently developed to furnish reliable guides in all circumstances. Of necessity, the practice of the court must develop out of the cases which come before it. The method of growth of its procedural law finds typical illustration in the question of the treatment, and, in particular of the amendment, of the conclusions of the parties.

Type
Research Article
Information
American Journal of International Law , Volume 25 , Issue 3 , July 1931 , pp. 490 - 502
Copyright
Copyright © American Society of International Law 1931

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References

1 The Rules of Court were originally adopted on March 24, 1922. Revised rules were promulgated on July 31, 1926, and on February 21, 1931, numerous amendments were introduced into the revised rules. See publications of the Court, Series D, No. 1 (2nd ed.); also Supplement to this Journal, p . 152.

2 The Rules of Court make use of the term “ conclusions” (French: conclusions). In several of its decisions the court has used the term “ submissions.” In the succeeding pages the term “ conclusions” is used, unless the direct words of the court are quoted.

3 No change was made in Article 40 by the revision of the rules on Feb. 21,1931, and it is still in force in its original form.

4 For example, in the case concerning Nationality Decrees in Tunis and Morocco, Series C, No. 2, p. 32; in the case concerning the Acquisition of Polish Nationality, Series C, No. 3, p. 768; in the case concerning the Jurisdiction of the Danzig Courts, Series C, No. 14-1, p. 346; in the case concerning the Frontier between Turkey and Iraq, Series C, No. 10, p. 225.

5 Publications of the Court, Series B, No. 17, p. 7.

6 Ibid., p. 14.

7 Article 36 of the Statute.

8 For example, in the Wimbledon case, Series C, No. 3, p. 10; the Mavrommatis case, Series C, No. 5-1, p. 91; the Upper-Silesian Minority Schools case, Series C, No. 14-11.

9 See special agreement between France and Turkey, Oct. 12, 1926, Publications of the Court, Series C, No. 13-11, p. 25; special agreement between Franceand Switzerland, Oct. 30, 1924, Series C, No. 17-1, p. 491.

10 See infra, p. 495.

11 Publications of the Court, Series A, No. 10, p. 12.

12 Ibid., Series A, No. 23, p. 45.

13 Art. 32 of the rules provides: “ The rules contained under this heading shall in no way preclude the adoption by the Court of such other rules as may be jointly proposed by the Parties concerned, due regard being paid to the particular circumstances of each case.”

“ During the revision of the Rules in 1926, it was agreed in connection with this Article that though the Parties might jointly propose modification of procedure, the final decision rested with the Court. The practice followed, notably in the case of the Nationality Decrees in Tunis and Morocco and in the Lotus case, has been in accordance with this principle.” Series E, No. 3, p. 205. For another instance of modification of procedure by agreement of the parties in the Oder case, see Series E, No. 5, p. 255

14 Publications of the Court, Series A, No. 22, p. 7.

15 See Fachiri, Permanent Court of International Justice (1925), p. 102. During the preparation of the rules it was proposed by Judge Anzilotti that a difference be made between obligatory jurisdiction and jurisdiction on special agreement. In the former case the parties should be strictly held to the rules, while in the latter case some latitude to propose modifications should be permitted. Series D, No. 2, p. 53.

16 In cases instituted by means of a special agreement the documents of procedure, failing an agreement to the contrary by the parties, are (Art. 39 of the rules): A case (French: memoire), submitted by each party within the same limit of time (sometimes designated “ Memorial” ); a counter-case (French: Contre-memoire), submitted in the same way; A reply (French: replique), submitted in the same way.

In cases instituted by means of an application,failing any agreement to the contrary between the parties, the documents are (Art. 39 of the rules): the case by the applicant; the counter-case by the respondent; the reply by the applicant; the rejoinder (French: duplique) by the respondent.

17 Publications of the Court, Series A, No. 13, p. 15, 16.

18 Ibid., p. 23.

19 For example, the Wimbledon case, Series C, No. 3, p. 10; the Mavrommatis case, Series C, No. 5-1, p. 91; Interpretation of the Treaty of Neuilly, Series C, No. 6, pp. 22, 82; the case of the Upper-Silesian Minority Schools, Series C, No. 14-11, p. 88; the Brazilian Loans case, Series C, No. 16-IV, p. 188; the Lotus.case, Series C, No. 13-11, p. 212.

20 Publications of the Court, Series A, No. 24, p. 6. In the Brazilian Loans case, the Brazilian Government failed to submit conclusions in its case, but submitted them in its counter-case. Series C, No. 16-IV, pp. 168, 244.

21 Publications of the Court, Series C, No. 17-1, p. 492.

22 Ibid., Series A, No. 22, p. 9.

23 For example, the Wimbledon case, Series C, No. 5-1, p. 132; Interpretation of the Treaty of Neuilly, Series C, No. 6, p. 102; the Free Zones case, Series C, No. 17-1, p. 1662.

24 Publications of the Court, Series A, No. 10, p. 10.

25 Ibid., Series A, No. 17, p. 17.

26 Ibid., Series A, No. 11, p. 11.

27 “ Le Gouvemement polonais observe d'abord qu'il ignore completement quelle est la disposition du Statut ou du Reglement de la Cour, qui autorise le demandeur & modifier les conclusions de la requite dans la réplique sept mois aprfes son introduction, dans sa derni piece de procedure, et apr que ces pieces ont été echangtes trois fois. . . . Le Gouvemement polonais a construit sa defense et redige ses pieces de procedure en se basant sur la conclusion primitive. No. 3 de la RequSte: admettre a present une modification essentielle de la conclusion 6quivaudrait k la privation du d6fendeur de ses moyens de defense et le priverait en particulier du droit de deposer ses exceptions et leContre-Memoire.” Publications of the Court, Series C, No. 11, p. 970.

28 Publications of the Court, Series A, No. 7, p. 10.

29 Ibid., p. 45.

30 Ibid., Series A, No. 8, pp. 6 et seq.

31 Ibid., p. 10.

32 During the preparation of the rules, it was agreed that the parties should have the right to withdraw, by common consent, a suit which they had brought before the court. Judge Huber suggested a distinction between withdrawal by consent and withdrawal only by the claimant party, but no decision was taken. It was stated that the allocation of costs in case of withdrawal must be made by decision of the court. Publications of the Court, Series D, No. 2, pp. 83 et seq.

Various instances of withdrawal of documents of procedure and suppression of passages in the Mavrommatis and Upper -Silesian cases are noted in Series E, No. 3, p. 205. In the Upper-Silesian case a conclusion in the Polish rejoinder was withdrawn by oral declaration and immediately noted by the court. Series C, No. 11, p. 78. The Chorzow case was terminated on the agreement of the parties, Series A, Nos. 18-19. Only one instance of objection has been found. In the Chorzow case a request was made to withdraw a conclusion of the Polish rejoinder. The German agent objected on the ground that it had been accepted by his government, which had opposed to it the adverse conclusions on the ground of which it prayed rejection of the Polish conclusion. Series C, No. 15-11, p. 28. The Polish request was granted. Series A, No. 17, p. 14.

33 Publications of the Court, Series A, No. 9, p. 18.

34 Supra, p. 495.

35 Publications of the Court, Series E, No. 5, p. 254.

36 In the preparation of the rules, the revised text of the Secretariat's draft contained the provision (Art. 36) that objections to the jurisdiction may be filed only in limine litis or at as early a stage as possible before the commencement of the oral proceedings. Series D, No. 2, p. 408. Much opposition developed to this proposal, it being urged that the parties should be entitled to raise objections at any time during the proceedings. Ibid., p. 202. The article was suppressed. Ibid., p. 214.

37 Publications of the Court, Series A, No. 9, p. 18.

38 Ibid., p. 19.

39 Ibid., Series C, No. 13-1, p. 98 .

40 Ibid., Series A, No. 9, p. 19.

41 Cf., ibid., p. 32.

42 Cf., the utterance of the court in regard to the lack of previous diplomatic negotiations. Series A, No. 6, p. 14.

43 Publications of the Court, Series E, No. 4, p. 285. See also Series E, No. 6, p. 290.

44 Ibid., Series A, No. 17, p. 7.

45 Minute 24 of the 11th meeting, 14th Session, Series E, No. 5, p. 257.

46 Publications of the Court, Series E, No. 6, p. 294.

47 Ibid., Series E, No. 4, p. 289.

48 Ibid., Series E, No. 3, p. 213. This ruling was made in regard to documents of evidence, but would also seem applicable to amendments. It would seem further that though both parties might consent, the final decision rests with the court, see supra, note 13.

49 Publications of the Court, Series E, No. 6, p. 297.

50 See supra, p. 491.

51 See supra, p. 493.

52 But cf., the argument of M. Politis in Series C, No. 13-1, p. 34.

53 Publications of the Court, Series D, No. 2, p. 275.

54 Ibid., p. 139.

55 For example, U. S. and Chile Claims Commission under the convention of Aug. 7,1892, Rule V, Moore, International Arbitrations, p. 2232; U. S. and Venezuela Mixed Claims Commission under Protocol of Feb. 17,1903, Rules IV and V, Ralston, Venezuelan Arbitrations of 1903, p. 6; U. S. and Germany Mixed Claims Commission under agreement of Aug. 10, 1922, Rule IV (c). Cf., Hague Convention of 1907 for Pacific Settlement of International Disputes, Arts. 67 and 74.

56 Rule 45, 1 Recueil des Tribunaux Arbitraux Mixtes (1921), p. 118.

57 Merignhac, L'artibrage international (1895), p. 263.

58 See U. S. and Chile Claims Commission under the convention of Aug. 7,1892, Rule V, supra, note 32; Franco-German Mixed Arbitral Tribunal, Rules, Art. 7,1 Recueil des Tribunaux Arbitraux Mixtes (1921), p. 46.

59 “ Nach dem, Eintritt der Rechtshdngigkeit ist eine Anderung der Klage zulassig, wenn der Beklagte einuoiUigt oder das Gericht sie fur sachdienstlicherachtet.” Zivilprozessordnung, §264; and see Stein Jonas, Zivilprozessordung,§128 V No. 3, §264, §268.

60 “ The Court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just,and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.” Rules of the Supreme Court of Judicature, Order XXVIII; and see Annual Practice, 1931, p. 461.

61 “ The Court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading . . . ” Federal Equity Rule 19.

62 Publications of the Court, Series A, No. 2, p. 34; Series A, No. 6, p. 14.