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The Necessity for an International Code of Arbitral Procedure
Published online by Cambridge University Press: 04 May 2017
Extract
The Final Act of the Second Hague Conference “recommends to the parties the assembling of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding conference,” and recommends the appointment of a “preparatory committee” which (in the language of the.Final Act), shall be “charged by the governments with the task of collecting the various proposals to be submitted to the conference, and of ascertaining what subjects are ripe for embodiment in an international regulation,” and of preparing a program for the conference and a plan for its organization and procedure. This recommendation, in the absence of some catastrophe, such, for instance, as the outbreak of a great European war, means the meeting of the Third Hague Conference some time in 1915, or thereabouts, and already many of the great nations of the world, among them the United States, have appointed their members on the preparatory committee.
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- Copyright © American Society of International Law 1913
References
1 A paper read at the Third Annual Conference of the American Society for the Judicial Settlement of International Disputes, held at Washington, D. C., Decem-ber 20 and 21, 1912.
2 See “The Development of Jurisprudence during the past Century,” by Professor Joseph H. Beale, an address delivered before the Congress on Arts and Sciences at St. Louis, Sept. 20, 1904, in the Division of Jurisprudence: reprinted in 18 Harvard Law Review, p. 271 at pp. 276-279
2a Ibid.
3 Senator Root, in his address on “The Function of Private Codification in International Law,” delivered at the fifth annual meeting of the American Society of International Law, observed: “To codify municipal law is to state in systematic form the results of the law-making process already carried on by a nation through its established institutional forms.To codify international law is primarily to set in motion and promote the law-making process itself in the community of nations in which the institutional forms appropriate for the carrying on of such a process have been so vague, indistinct, uncertain, and irregular that they could hardly be said to exist at all.”[Vol. V, AMERICAN JOURNAL OF INTERNATIONAL LAW, 1911, p. 577 at p. 579.]It is submitted that the distinction here drawn is applicable rather to some of the later instances of the codification of municipal law such as the recent codi-fication of some branches of the law in England, where, as Professor Beale points out, the purpose “appears to be merely an artistic one” rather than to such codes as the Code Napoleon and the modern European codes, which have unified the laws of countries heretofore hampered by a medley of inconsistent local customs and laws.
4 “L'instruction érite,” Article 63, Hague Convention (1907) for the Pacific Settlement of International Disputes.
5 “Mémoires des contre-memoires et, au besoin, des repliques,” Article 63, Hague Convention.
6 See the case and counter-ease of the United States in the following arbitrations: Bering Sea, with Great Britain, 1893; North Atlantic Coast Fisheries, with Great Britain, 1909-10; Alaska Boundary, with Great Britain, 1903; Orinoco Steamship Company matter, with Venezuela, 1909-10; Chamizal Arbitration with Mexico, 1910-11.See also, as essentially conforming to this practice, although under different names, the memorial and replication of the United States in the Pious Fund Arbitration with Mexico of 1902. The nature and function of case and counter-case were particularly discussed in the North Atlantic Coast Fisheries, Orinoco Steamship and Chamizal Arbitrations.
In the counter-case of the United States in the Fisheries Arbitration the agent of the United States, Mr. Chandler P. Anderson, after pointing out that the British case had indulged in argument, observed: “The view taken on the part of the United States as to the function and character of the printed Case and Counter-Case, required by Article VI of the Special Agreement, has been that the Case should present the evi-dence relied on in support of the position taken with respect to each question, and that the Counter-Case should deal with the evidence in reply to the Case of the other Party, postponing the presentation and discussion of questions of law and of the issues raised by the evidence until the printed and oral arguments. The Case of the United States was prepared in accordance with this view, and in the preparation and presentation of its Counter-Case the United States will follow the course indicated.”Counter Case of the United States, North Atlantic Coast Fisheries Arbitration, p. 1.] See also Case of the United States, Orinoco Steamship Arbitration, p. 6, Counter-Case, ibid., pp. 3 and 5; Case of the United States, Chamizal Arbitration, pp. 6 and 7;Counter-Case, ibid., pp. 3 and 4.
Compare the parenthetical definition of “Case” given in Ralston's International Arbitral Law and Procedure, Section 273, which is as follows: “(By the term ‘case’ is meant a full statement of the position of the party presenting it, with a summary of the law and facts, coupled with any fortifying exhibits.) ”
Of course the observations in the text do not apply in cases, like the Alsop Case, United States and Chile, 1909-10, where the terms of the submission, after calling for a “case” and “counter-case,” further provided that “The case shall then be closed unless His Britannic Majesty shall call for further documents, evidence, correspondence or arguments from either government.”Of course, under this arrangement, it was necessary that both case and counter-case should be argumentative. A similar observation should be made with respect to the Venezuela Preferential Case of 1903, where the protocol provided for submission to The Hague without any provision as to the matter of pleadings, which were directed by the tribunal after it began its sessions. The entire circumstances of this case were also peculiar.
7 See AMERICAN JOURNAL OF INTERNATIONAL LAW, January 1911, pp. 55–56.
8 Treaties and Conventions, etc., 1776–1909, Vol. 1, p. 1194 at p. 1197.
9 See protocol of October 6, 1910, Protocols de Seances, etc., p. 36.
10 Treaties and Conventions, etc., 1776–1909 Vol. II, p. 1872 at p. 1875.
11 Protocol of Friday, October 2, 1903, Recueil des Actes et Protocoles, p. 39 at p. 41; Report of Penfield, William L., United States Agent, p. 55.Google Scholar
12 Ibid., p. 42; ibid., p.56.
13 Ibid., p. 43: ibid., p.57.
14 Ibid., p. 52; ibid, p. 62.A similar discussion arose in the recent Chamizal Arbitration between the United States and Mexico before the International Boundary Commission, the United States arguing, on various grounds, among others possession of the territory in question on the part of the United States, that Mexico was plaintiff, and Mexico taking the position that both parties were on a perfect equality, that neither was plaintiff or defendant. In this case, as in the Venezuela Preferential Case, the immediate practical point to be decided, which was thought to depend upon the question as to which party was plaintiff in the case, was the question as to who should open the argument, in this case the oral argument. It was impossible for the court to avoid asking the representative of one or the other party to begin, and, accordingly, the Presiding Commissioner requested the representative of Mexico to proceed, although carefully guarding himself against having, by so doing, passed upon the question of principle whether either party was plaintiff or defendant.It should be noted that the Mexican agent rested his contention, to a great extent, on the fact that the terms of the submissioncalled for simultaneous pleadings. [Mexican Counter-Case, p. 52; Oral Argument, p. 15: See United States Argument, p. 4, citing the customary usage in this sense.]Soor Casastis, the Mexican agent, further said lit the oral discussion: “The question of who is the claimant must be decided at the end of the case, because there are very important consequences to be derived from that question.”
15 Pending the adoption of such an international code of procedure as is here suggested, it is submitted that whenever it is possible for the parties to agree as to which is plaintiff or defendant, this should be recognized in the compromia of arbitration, at least to the extent of fixing the order of pleadings with that in view, i. e., these should not be simultaneous, but with a memorial or case on one side, to be followed, after a sufficient interval, by the answer on the other, etc., as was done in the compromis for the submission of the Pious Fund case, which was, in this and many other respects, an admirable instrument.
16 The following is extracted from the record of the proceedings in the second session of the tribunal, Sept. 15, 1902.(The first session had been purely formal.)
“MR. RALSTON [Agent of the United States]. * * * Before presenting Senator Stewart, whom we will ask to make the first speech, with your permission, there is one question which has arisen between the Agent of Mexico and myself upon which I should be pleased to have the court pass, as it may determine the course of the argu-ments somewhat. According to English, I think, and I know to American, practice the complainant (demandeur, so to speak) has the right to open and to close the case; to make the opening argument and the closing argument. The defendant may make two or three or more intervening arguments, or if there be a large number of counsel the counsel should arrange it in such manner that the closing speech is made on the part of the plaintiff (demandeur).I know that this practice is an absolutely uniform one. Sin EDWARD FRY. Not in England. MR, RALSTON. It is with us. I want to submit the question of the order of debate at this time to the décision of the court. M. LE PRÊSIDENT. Est-ce que vous demandez une decision du Tribunal surcette question? MR. RALSTON.S'il vous plait. M. LE PRÊSIDENT. Est-ce quel'agent des Etats-Unis mexicains est d'accord? M. PARDO. La remarque faite parl'agent des Etats-tinis d'Amerique prouve ce que je m'étais permis d'indiquer dans un réunion préable de la Cour: la nécessité absolue de fixer la procédure à suivre. Le protocols n'a pas pu comprendre tous lea détails de cette procédure; it faut absolument, pour éviter une discussion à chaque pas, que le Tribunal daigne fixer une bonne fois au moins les élménts d'une procédure régulière, autrement nous serons à chaque intant l'une et l'autre pantie aux prises pour savoir combien de fois chacun des avocats peut parler, si les documents peuvent étre produits pendant l'audience ou en dehors. Il faut je crois que le Tribunal daigne fixer une bonne fois la procédure qui doit être suivre devant elle, autrement le procés sera embrouillée d'une faҫon telle que nous entendrons jamais. J'adhére done à la proposition de M. l'agent des Etats-Unis, et [See pp. 515-516 Ralston's Report, Appendix II Foreign Relations of the United States, 1902]. For decision of tribunal as stated in text, see, ibid., p. 523. Subsequently each side was allowed two counsel in reply, p. 752: this rule was strictly enforced. Although the decision of the court had expressly reserved the right of counsel to reply to objections which particularly concerned matters which they had covered in the opening argument, objection was made when one of the counsel for the United States, at the beginning of his argument in rebuttal, asked permission to yield five minutes to Mr. Ralston, the American Agent. [Ibid., p. 769.1 Subsequently the American Agent presented these points through Judge Penfield of counsel, who closed for the United States. [Ibid., p. 818; see, also, p. 627.
17 Session of October 5, 1903. Recueil, etc., p. 66. Penfield's Report, p. 67. In response to a query, the court ruled that the alphabetical order was to be in English: it will be remembered that by the terms of the protocol English was specifically made the language of the tribunal in this case.
18 See letter of Dr. Lammasch, President of the Tribunal, to Chandler P. Anderson, Esq., Agent of the United States, Aug. 20, 1910, in which Dr. Lammasch says: “The order of procedure in this arbitration was proposed by the agents and counsel of both parties and was accepted by the tribunal as it had been proposed.” [Oral Argument, original publication, p. 1430; Congressional edition, p. 2373.]
19 In the Chamizal Arbitration, however, the learned Presiding Commissioner observed that “The usual international practice, as I understand it, is that one counsel shall be heard on one side and another on the other side, and that 'they should alternate in that manner.” [Chamizal, Oral Argument, p. 45; see, also, pp. 94, 97 and 99 for expressions to the same effect.] And acting upon this view, he ruled that the argument in the Chamizal case should proceed in that order, which, it will be noted, was the order adopted, by agreement of the agents, in the North Atlantic Coast Fisheries case, but, it is believed, not followed in any other case at The Hague where there was more than one speaker on each side. The Presiding Commissioner in the Chamizal case further arranged that the order of the alternation should be changed in the closing speeches, thus giving Mexico both the opening and the closing, although the court expressly declined to hold either party plaintiff or defendant. It should be noted in this connection, however, that both parties had desired the other side to take the opening, and the Presiding Commissioner had requested Mexico to open. Very possibly it was thought that perfect equality would be obtained by giving Mexico the closing speech, which both parties desired; but, query, whether or not agent and counsel for the United States did not have a right to rely with some confidence on the uniform international practice, so far as the Hague Court is concerned at least, that the side which opens shall not be permitted to close, even though it be admittedly the plaintiff? As it turned out, the order of oral argument in this case Was of no particular practical importance, but it is submitted that universal experience in the municipal courts has shown that in the long run it is a matter of great practical importance that the order of oral argument should be settled in advance by general rules which should be applied automatically to the particular case, at least in the absence of some peculiar circumstances calling for a departure from the general rule.
20 See AMERICAN JOURNAL of INTERNATIONAL LAW, January 1911, Q. 57, for a fuller discussion of this incident. It is believed that under the peculiar circumstances of the case in question the interlocutory motion was seasonably presented. But if the court thought that it was not so presented it is submitted with deference that the proper course would have been for the court then and there to have declined to entertain it on that specific ground.
21 See the ruling of the tribunal, upon the basis of this article, in the Venezuela Preferential case, calling counsel to order for attempting to reopen an interlocutory point once decided. Recueil, etc., p. 54. Penfield's Report, p. 63.
22 One of the most extreme instances of this sort of thing on record was the in-terruption of Judge Penfield, counsel for the United States, while making his argument in the El Triumfo Arbitration with Salvador. The report of Judge Penfield's speech reads and looks like a drama in which the nominal speaker was only one of the dramatis persona. [See Oral Argument of Judge Penfield, etc., G. P. 0., 1902.]
23 In the Casablanca arbitration the agents presented their arguments on one day, and were questioned on another day. This method is not without its advantages under some circumstances.