Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-27T18:44:56.460Z Has data issue: false hasContentIssue false
  • English
  • Français

A New Direction for the PCA: The Work of the Expert Group

Published online by Cambridge University Press:  21 July 2009

J.L. Bleich
Get access Rights & Permissions [Opens in a new window]

Extract

Until recently, the Permanent Court of Arbitration has been an institution that one reads about, if at all, principally in the background sections of international law casebooks. This article suggests, and indeed this issue of the Leiden Journal of International Law confirms, that the level of scholarly attention to the Court is changing due to recent developments in the work of the PCA. The purpose of this article is to report and reflect on an emerging effort in the international community to restore the PCA to a prominent place in international arbitration. This article describes the impetus for this effort and the actions taken to reestablish the PCA, as well as the challenges that lie ahead in that effort.

Type
Articles
Information
Leiden Journal of International Law , Volume 6 , Issue 2: Special Issue 1993: THE FLAME REKINDLED: New Hopes for International Arbitration , August 1993 , pp. 215 - 240
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See International Law 239 (1986); between 1910 and 1930, the PCA arbitrated 22 inter-state disputes, including the highly influential Island of Palmas Case, 2 U.N.R.I.A.A. 829 (1928).

2. International Bureau of the PCA, Permanent Court of Arbitration: 91st Annual Report 1991 13–17 (1992) [hereinafter Annual Report].

3. International Bureau of the Permanent Court of Arbitration, The Permanent Court of Arbitration – New Directions 21 (1992) [hereinafter New Directions].

4. The Working Group consisted of: Mr. Andres Aguilar Mawdsley, Judge of the ICJ (Venezuela); Mr. Koorosh-Hossein Ameli, Member of the Iran-United States Claims Tribunal (Iran); Mr. Carlos Arguello Gomez, Agent of Nicaragua to the International Court of Justice (Nicaragua); Mr. Mohammed Bedjaoui, Judge of the ICJ (Algeria); Mr. Borut Bohte, Ambassador of Yugoslavia to the Netherlands (Yugoslavia); Mr. Bengt Broms, Member of the Iran-United States Claims Tribunal (Finland); Mr. Achol Deng, Ambassador of the Sudan to the Netherlands (Sudan); Mr. C. Flinterman. Professor of International Law at the University of Limburg (Netherlands); Mr. V.K. Grover, Ambassador of India to the Netherlands (India); Mr. Gilbert Guillaume, Judge of the ICJ (France); Mr. W.A. Hamel, General Director of the Carnegie Foundation (Netherlands); Mr. Howard Holtzmann, Member of the Iran-United States Claims Tribunal (U.S.A.); Sir Robert Jennings, President of the ICJ (U.K.); Mr. Manfred Lachs, Judge of the ICJ (Poland); Mr. F.X. Njenga, Secretary-General of the Asian-African Legal Consultative Committee, New Delhi (India); Mr. S.A. Ordzhonikidze, Deputy Director of the International Law Dept., Ministry of Foreign Affairs, Moscow (C.I.S.); Mr. Christopher Pinto, Secretary-General of the Iran-United States Claims Tribunal (Sri Lanka); Mr. GJ. Tanja, Assistant Legal Adviser, Ministry of Foreign Affairs (Netherlands); Mr. Jorge Antonio Tapia-Valdes, Ambassador of Chile to the Netherlands (Chile); Mr. Nikolai Tarassov, Judge of the ICJ (C.I.S.); Mr. CCA. Voskuil, Director of the T.M.C Asser Instituut (Netherlands); Mr. N. Wuhler, Deputy Secretary-General of the Iran-United States Claims Tribunal (Germany).

5. New Directions, supra note 3, at 8–17.

6. See, e.g., International Centre for the Settlement of Investment Disputes (ICSID) (founded in 1965 to resolve disputes between states and nationals of other states arising in connection with investments between the national and the contracting state); the International Chamber of Commerce (ICC) (founded in 1923 to supervise commercial arbitrations, deals principally in claims between nationals of different states); the London Court of International Arbitration (LCIA) (founded in 1892, internationalized in 1985 to resolve disputes between nationals of different states); the American Arbitration Association (AAA) (founded in 1926, international arbitral component established in 1985 to resolve commercial disputes, principally among nationals of different states); the Stockholm Chamber of Commerce (founded in 1917, reorganized in 1949 to assist in the settlement of domestic and international disputes); the Asian-African Legal Consultative Committee (AALCC) (founded in 1978 to resolve disputes arising out of economic and commercial transactions in the Asian-African region); and the Chamber of Commerce and Industry of Geneva (CCIG) (created in 1875, but restructured in 1980 to resolve disputes arising from commercial dealings, focusing principally on disputes between nationals of different states).

7. New Directions, supra note 3, at 9–11.

8. Id., at9.

9. See generally, Anand, Role of International Adjudication, in Gross, II The Future of the International Court of Justice 4 (1976), noting “the vast expansion of the international society from the old ‘Hague Community’ with little or no connection left with the so-called tradition of the Hague system […]”. There are, however, some indications that this apprehension towards so-called Western institutions is abating. Recently, in fact the International Court of Justice has attracted several cases brought by developing nations. See, e.g.. Frontier Dispute (Burkino Faso v. Mali) case, 1986 I.C.J. Rep., at 554; case Concerning Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J. Rep., at 14; Border and Transborder Armed Actions (Nicaragua v. Honduras) case, The Frontier Dispute (EI Salvador v. Honduras) case, the Phosphate Lands (Nauru v. Australia) case, and the Arbitration Award of July 31, 1989 (Guinea/Bissau v. Senegal) case.

10. New Directions, supra note 3, at 9–10.

11. Id., at 10–11.

12. It should be noted that, recently, there have been some indications by international legal institutions of a renewed awareness of the PCA. For example, the Sixth Committee's Working Group on the Decade of International Law has recommended that nations take greater advantage of the PCA in resolving their international disputes. See Comprehensive List of Suggestions with Respect to the Programme for the United Nations Decade of International Law Proposed by States and International Organizations. Similarly, the Conference on Security and Cooperation in Europe (CSCE), suggested broadening the administrative role of the PCA's Secretary-General and International Bureau. Report on the Meeting of Experts on the Peaceful Settlement of Disputes (Valletta, 1991). In addition, the PCA or its offices have been selected to assist in disputes arising from the European Energy Conference, the Antarctic Treaty Conference (Annual Report, supra note 2, at 9), and the recently concluded Treaty between The Netherlands and Surinam. The PCA has already assisted in the conduct of the arbitrations between the US and the UK concerning user fees at Heathrow Airport (Annual Report, supra note 2, at 15), the Iran-US Claims Tribunal (Annual Report, supra note 2, at 13), and all arbitrations employing Arts. 6 and 7 of the UNCITRAL Arbitration Rules. These developments, although promising, offer only a glimpse of the PCA's full promise.

13. New Directions, supra note 3, at 15.

14. Id., at 11–17.

15. This brochure was published in October 1991 by the T.M.C. Asser Institute as The Permanent Court of Arbitration: What It Is, What It Does.

16. Such a book was in fact published in December 1991 by the T.M.C. Asser Institute, see supra note 3, The Permanent Court of Arbitration – New Directions.

17. The Secretary-General did, in fact, pursue the Working Group's recommendation that he attend Sixth Committee sessions, and he has proposed that the PCA receive observer status at Sixth Committee Sessions. U.N. Doc. A/C6/46/SR37 1991.

18. See Convention for the Pacific Settlement of International Disputes of 1899 [hereinafter Hague Convention of 1899], and Convention for the Pacific Settlement of International Disputes concluded at The Hague on October 18, 1907 [hereinafter Hague Convention of 1907].

19. New Directions, supra note 3, at 17.

20. Formally titled the Arbitration Rules of the United Nations Commission on International Trade Law. These rules were developed by the United Nations Commission on International Trade Law to assist in the arbitration of international commercial disputes. The Rules were first adopted by UNCITRAL at its ninth session. U.N. GAOR, Thirty-First Session, Supplement No. 17 (A/31/17), Chap. V, Sect. C. The Rules were subsequently recommended for use by the General Assembly by virtue of U.N. Res. 31/98 adopted December 15, 1976. Although the Rules were originally developed to assist in the arbitration of international commercial disputes, they have proved to be readily adaptable for governing arbitrations involving states. They have, for example, been employed successfully by the Iran-U.S. Claims Tribunal in The Hague since its inception in 1983. Because of the wide acceptance of the UNCITRAL Rules by states and their adaptability, the Working Group concluded that these Rules would be an appropriate starting point for drafting the PCA's Optional Rules.

21. New Directions, supra note 3, at 17.

22. One member of the Expert Group pointed out that the strictness of this provision is open to debate. He noted that the English text of the Hague Conventions uses the term ‘must’, which suggests that reference to the list is mandatory. By contrast the French text uses the term ‘doit’ which would indicate that reference to the list is permissive. For present purposes, it is not necessary to determine here which text is controlling, because the Working Group and the Expert Groups do not rely upon this provision to support their recommendation that parties be allowed to draw arbitrators from outside of the list. However, it is worth noting that at the time the 1899 and 1907 Conventions were ratified, the official text of both Treaties was in French. Accordingly, under customary international law (as codified in The Vienna Convention on the Law of Treaties, Arts. 31 and 32), it appears that the, less restrictive, French definition would apply.

23. See 1899 Hague Convention, supra note 18, Art. 21; 1907 Hague Convention, supra note 18, Art. 42.

24. See 1899 Convention, supra note 18, Arts. 31 and 32:1907 Convention, supra note 18, Arts. 52 and 55.

25. New Directions, supra note 3, at 14.

26. Id., at 15.

27. This initiative was largely abandoned in response to a later development by the Expert Group. See infra note 33 and accompanying text. As noted therein. Art. 8 of the Expert Group's Draft of the Optional Rules provides that parties may draw arbitrators from outside of the PCA list. Accordingly, the Expert Group concluded that it was not necessary to alter the criteria for the selection of PCA members, as parties would be free to select members from the PCA or non-members as they see fit.

28. The Expert Group is composed of 25 members representing 22 countries. The Expert Group's membership is as follows: Mr. Ion M. Anghel, Ambassador of Romania (Romania); Mr. Andres Aguilar Mawdsley, Judge of the ICJ (Venezuela); Mr. Abdel Meguid, Counsellorof the Embassy of Egypt (Egypt); Mr. Koorosh-Hossein Ameli, Member of the Iran-United States Claims Tribunal (Iran); Mr. Carlos Arguello Gomez, Agent of Nicaragua to the ICJ (Nicaragua); Mr. Mohammed Bedjaoui, Judge of the ICJ (Algeria); Mr. A. Bos, Dutch Ministry of Foreign Affairs (Netherlands); Mr. Bengt Broms, Member of the Iran-United States Claims Tribunal (Finland); Mr. Hans Corell, Under-Secretary for Legal and Consular Affairs, Ministry of Foreign Affairs, Stockholm (Sweden); Mr. Achol Deng, Ambassador of the Sudan (Sudan); Dr. Luigi Ferrari-Bravo, Chef du Service du Contentieux Diplomatique des Traiteset des Affaires Legislatives, Ministry of Foreign Affairs, Rome (Italy); Mr. L. Hardenberg, Lawyer (Netherlands); Mr. Reinhard Hilger, Head of Section on General International Law of the Ministry of Foreign Affairs, Bonn (Germany); Mr. Howard Holtzmann, Member of the Iran-United States Claims Tribunal (U.S.A.); Mr. Manfred Lachs, Judge of the ICJ (Poland); M. Jean-Pierre Puissochet, Le Directeur Des Affaires Juridiques, Ministry of Foreign Affairs, Paris (France); Mr. Shigeru Oda, Vice-President of the ICJ (Japan); Professor Pierre Pescatore, Former Judge at the Court of Justice of the European Community (Luxembourg); Mr. Christopher Pinto, Secretary-General of the Iran-United States Claims Tribunal (Sri Lanka); Mr. P.M.A.L. Plompen, Legal Adviser of Philips, Inc. (Netherlands); Dr. P.S. Rao, Ministry of External Affairs, New Delhi (India); Mr. Jacques H. Schraven, Legal Adviser of Shell Oil Company (Netherlands); Mr. Stephen Schwebel, Judge of the ICJ (U.S.A.); Mr. L. Skotnikov, Legal Adviser, Ministry of Foreign Affairs, Moscow (C.I.S.); Mr. Jorge Antonio Tapia-Valdes, Ambassador of Chile (Chile); Mr. C.A. Whomersley, Foreign Office, London (U.K.). In addition, the Secretary General contacted the following eminent international law figures and consulted them on the Rules before transmitting those Rules to the Administrative Council for final approval. Mr. Bola Ajibola, Judge of the ICJ (Nigeria); Mr. Eduardo Valencia-Ospina, Registrar of the ICJ (Columbia); Mr. Kenneth Keith, President of the International Law Commission of New Zealand (New Zealand).

29. New Directions, supra note 3, at 15.

30. Id..

31. See supra note 18 and accompanying text.

32. See supra note 20 and accompanying text.

33. The Experts agreed that it was best to publish a full set of rules rather than merely adopt the UNCITRAL Rules with modification by renvoi. The Experts decided that the Court, as an independent institution, must publish a free-standing set of rules. However, noting that some States might be reluctant to adopt what appear to be untested rules, the Expert Group agreed that the PCA would be aided by a document that revealed at a glance the fundamental similarity between the PCA Rules and the UNCITRAL Rules.

34. Specifically, the following changes were made throughout: (1) all references to parties as ‘he’ or ‘his’ were changed to ‘it’ or ‘its’, respectively, to reflect that these Rules relate solely to disputes between state parties (see Arts. 6, 7, 11, 18, 19, 20, 24, 25, 28, and 30); (2) the term ‘contract’ was replaced by the term ‘treaty or other agreement’, to reflect that only public law disputes are subject to these Rules (see Arts. 1, 3, 8, 18, 19, and 21); (3) all time limits placed upon parties were doubled, in deference to the parties’ sovereign status (see Arts. 5, 6, 7, 11, 25, 35, 36, and 37) and tribunals were granted authority to extend certain time limits at the sovereign's request (see Arts. 23 and 25); (4) in all provisions relating to administrative duties of a tribunal, references to the ‘International Bureau’ have been added where appropriate to reflect the structure of responsibilities within the PCA (see Arts. 4, 15, 25, 32, 33, 38, and 41); (5) all references to ‘goods’ or ‘business days’ have been omitted to reflect the exclusively publiclaw character of disputes arising under these Rules (see Arts. 2, 16, 26); (6) Art. 2 was modified to provide that notice shall be delivered through diplomatic channels, since States or the relevant agents may not have a ‘residence’ per se; and (7) in Art. 4 the term ‘agent’ was introduced instead of ‘representative’ in keeping with public law practice.

35. See supra note 27 and accompanying text.

36. See supra notes 19–20 and accompanying text.

37. See 5.1 Preventing Delay and Disruption of Arbitration ICCA Congress Series 242–67 (1991).

38. Rules of the Court of the International Court of Justice, Art. 53.

39. See corresponding changes in Art. 34, Para. 3, Art. 35 Para. 2, Art. 36, Para. 2, and An. 37, Para. 3.

40. That Statute provides that the Court is to apply: (a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; (b) international customs, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

41. Two less significant changes were made as well. In Art. 38, the Expert Group deleted a provision requiring an arbitral tribunal to fix its fees in accordance with Art. 39 and to state the fees of each arbitrator separately. The Experts noted that the first requirement was no longer applicable in light of modifications made in Art. 39. The Experts also eliminated the requirement that arbitrators state their fees separately as an unnecessary precaution because the Secretary-General is available to consult on all fees and because the tribunal is bound by Art. 39 to set reasonable fees. Second, in Art. 39, the Experts modified the language of the UNCITRAL Rules slightly to clarify that disputes arising before the PCA need not concern claims for monetary compensation.

42. It is useful to note that in this Clause the Experts use the words ‘treaty or other agreement’ in place of the term ‘contract’. This was done to confirm that these Rules apply in state-to-state disputes, and that the Rules may extend to ‘less formal arrangements’ between states – as contrasted with ‘agreements’ which are of course always treaties under the terms of the Vienna Convention on the Law of Treaties, Art. 1.

43. E.g., the Expert Group participants agreed in principle that the International Bureau should publish a schedule of fees and expenses to be charged in each case, but concluded that it was not necessary to determine the content of that schedule at this point. It was deemed that this was an administrative matter best left in the hands of the Secretary-General. The Expert Group also considered proposals that the UNCITRAL Rules be modified to permit revision or appeal of awards, and/or to require that challenges of arbitrators be submitted to outside authorities. Participants noted that these changes are relatively controversial, and thus promulgating them would deviate from its general policy of basing the PCA Rules on the UNCITRAL Arbitration Rules with only necessary modifications.

44. Annual Report, supra note 2, at 9.

45. Id., Para. 24, at 17.

46. The International Bureau could begin this effort immediately by offering administrative assistance to developing countries in the early stages of forming agreements – such as printing, translating, and distributing treaties. This would reduce the cost of preparing arbitration agreements and, by ensuring that they are professionally prepared, greatly reduce the risk of expensive or time-consuming delays later in the application of those agreements.