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Structure, Process, Outcome: Thoughts on the ‘Essence’ of International Arbitration

Published online by Cambridge University Press:  21 July 2009

M.C.W. Pinto
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Extract

The Hague Peace Conference of 1899 was attended by 27 states, the Conference of 1907 by 43, the overwhelming majority being from Europe and America. Among the participants were four from Asia: China, Japan, Persia and Siam. Their delegates, trained in the best European legal and diplomatic traditions, were assisted by European experts in explaining their positions on ‘projects’ (or drafts) of European or American origin.

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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. 241 - 264
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1993

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References

1. H. Lauterpacht, The Function of Law in the International Community 379 (1933). See also J.H. Ralston, International Arbitration from Athens to Locarno 22 et seq. (1929) and the authorities cited in these works.

2. H. Lauterpacht, supra note 1 at 381, n. 2.

3. H. Lauterpacht, supra note 2 at 381.

4. J.B. Scott, The Proceedings of the Hague Peace Conferences, trans, of the Official Texts, II The Conference of 1907, Meetings of the First Commission 49–50 (1921).

5. Statute of the International Court of Justice, Article 26, Para. 2.

6. Supra note 4, at 660.

7. Supra note 4, at 319.

8. Supra note 4, at 234.

9. Supra note 4, at 2. In similar vein, Mr. Carlin (Switzerland) at 144–5; Mr. Brun (Denmark), at 147, and many others.

10. Supra note 4, at 14.

11. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), 1950 I.C J. Rep. 227, at 228–9. In its Advisory Opinion the Court held that where provisions on the constitution of a commission require that each party first appoint a member, and thereafter agree upon a third-country member, a power of appointment arising on default of agreement on the latter, conferred on the Secretary- General of the United Nations, could only be exercised after the party-appointed members were in place and had attempted to reach agreement. Failure by a party to appoint its ‘national’ member could thus, in the absence of express provision in the compromis governing the situation, halt constitution of the commission and frustrate the entire settlement process.

12. Discussed in text infra 5.

13. H. Fox, Arbitration, in International Disputes: the Legal Aspects, Report of a Study Group of the David Davies Memorial Institute of International Studies, at 102.

14. J.H.W. Verzijl, VIII International Law in Historical Perspective 106.

15. Of this power, conferred on the International Court of Justice by Article 41 of its Statute, Verzijl could write in 1976: “It is incontestable that the authors of the Statute have by this provision vested the court with a considerable power which surpasses by far the normal attributions of arbitrators”; id., 150.

16. These exceptions generated extensive, but hardly conclusive, academic discussion. See, e.g., id., 90 et seq.

17. Supra note 4, at 50.

18. A. Mérignac, Traité theorique et pratique de l‘arbitrage international 290. Quoted in L.B. Sohn, The Function of International Arbitration Today, I Hague Recueil (1963), at 9, 42, in his discussion of the nature of decisions ex aequo et bono.

19. U.N. G.A. Res. 1262 (XIII).

20. 9(II)Y.B.I.L.C., at 2 (1957).

21. See H. Fox, supra note 13, at 101.

22. T. Barclay, New Methods of Adjusting International Disputes and The Future 67 (1917), at 68.

23. 5 (II) Y.B.I.L.C. 235 (1953). Julius Stone expressed a similar opinion: “The features of arbitration law which offer so many avenues of escape and which serve in the Commission's eyes as excuses for ‘shirking’ international undertakings, may be the very features which attract states to enter into social undertakings”. J. Stone, Legal Controls of International Conflicts 736 (1954).

24. Carlston, K.S., International Arbitration Procedure, 19 The Arbitration Journal 84 (1957), at 85.Google Scholar

25. Charles de Visscher, Reflections on the Present Prospects for International Adjudication, 50 AJIL 469–470 (1956).

26. H. Grotius, De jure belli ac pacis. Book III, Chapter XX.47, trans, by A.C. Campbell (1901) at 398, quoting Aristotle, Rhetoric 1, 13.

27. J. Frank, Courts on Trial: Myth and Reality in American Justice 378–379 (paperback ed. 1973).

28. Gallatin, United States Minister to the Court of St. James, in a letter to Secretary of State Henry Clay, October 30,1826, quoted in P.E. Corbett, Law in Diplomacy 146–147 (1959).

29. H. Wehberg, The Problem of an International Court of Justice 14(1918), quoting Pohl. The Secretary-General of the Permanent Court of Arbitration, in a Note to Member States dated March 3, 1960, reproduced in 54 AJIL 933 (1960), urged that “in cases where parties agreed to settle their differences ex aequo et bono, the arbitral tribunal is definitely a more appropriate organism” than the International Court of Justice; and that “the decision ex aequo et bono can be of value in cases where the settlement of nonjuridical differences is concerned”. In doing so, the Secretary-General found support in the opinion of Charles de Visscher that “Settlement ex aequo et bono definitely fits the arbitral function better than the properly judicial one”.

30. Quoted by J.B. Scott, supra note 4 at 317.

31. E. Borel and N. Politis, L'Extension de l'Arbitrage Obligatoire et la Competence Obligatoire de la Cour Permanente de Justice Internationale, II Annuaire de l'lnstitut de Droit International 669 et seq. and 681 (1927)

32. T. Barclay, supra note 22, at 85, 86, 91.

33. L. Oppenheim, The Future of International Law 46–47 (1921).

34. The outcome of one of the most important of arbitrations has been similarly characterized. According to one author “[…] the jurisprudential value of the awards of the Iran-U.S. Claims Tribunal are open to doubt on the ground that they were based on an agreement settling a political dispute and that there was an effort made by the Tribunal to approach issues in a manner favouring compromise rather than provoking contention”. M. Somarajah, The Pursuit of Nationalized Property 200 (1986). While the ‘jurisprudential value’ of the tribunal's awards has been otherwise widely acclaimed and requires no comment here, one may recall Garner's observation that“[…] the principal function of arbitration is to settle international differences and not to develop a body of international law”. J.W. Garner, Recent Developments in International Law 524 (1922).

35. As to the theoretical basis for the view that a just outcome of an arbitration, interpreted as an outcome that is of mutual advantage to arbitrating parties, will reflect their relative bargaining strengths, see B. Barry, Theories of Justice 9 et seq. (1989).

36. As Charles de Visscherobserved, “It is better to recognize [the reality that political tensions make states reluctant to submit disputes to arbitration] clearly than to wander afield in the search for procedural reforms which remedy nothing”. See supra note 25, at 474. See also the conclusions of one of the few Asian scholars to address the subject: “The road to progress lies not in framing rigid rules of procedure to make arbitration effective, but in creating conditions which may prove congenial for resolving disputes”. M.A. Chaudhri (ed.). The Prospects of International Arbitration 19 (1966).

37. L.B. Sohn, supra note 18, at 98.

38. Id., at 99.

39. Id., at 100.

40. Study of the role of arbitrator would be of central importance in a study of arbitration as an institution. Simon Roberts concludes a discussion of dispute settlement in a range of societies with this description of differences between the roles of ‘arbitrator’ and ‘adjudicator’ which appears equally applicable in the international sphere: “Because the arbitrator depends for his authority to make a decision upon the disputants' agreement that he should do so, he must be sensitive towards their opinions as to what an acceptable decision might be; otherwise the chances of his decision being complied with, and of his being approached to deal with subsequent quarrels, will be small. Such considerations are not present in the case of the adjudicator who hears and decides a dispute by virtue of his office in the community. Not only is he entitled to hear the dispute but he is also likely to have force at his disposal to ensure compliance with his decision if the parties do not like it. Only in the much longer term can unpopular decisions affect his legitimacy”; S. Roberts, Order and Dispute: An Introduction to Legal Anthropology 78 (1979). For a criticism of the ‘anthropological approach’, see J. Frank, supra note 27.

41. Not only should the study cover aspects of the structures, processes and outcomes associated with international arbitration, such as those discussed or referred to above, but it might also usefully address the cultural dimensions of a state's approach to international arbitration as part of the effort to arrive at a common perception of the nature of the arbitral process. It cannot be denied that arbitration, as a process established and intended to function in accordance with the agreement of disputing parties, and distinct from determination of a dispute by a court as the organ established by the community, has existed in some form in all cultures. It seems likely therefore that attitudes to international arbitration in different countries would be influenced by a culturally distinct view of the essence of arbitration. Such views ought to be heard and taken into account before a common understanding is reached regarding the implications of recourse to ‘arbitration’. However, some scholars have tended to discount the relevance of culture to the development of international law in general; see W. Friedmann, The Changing Structure of International Law 313–314 (1964), and dispute settlement in particular; see R.P. Anand, International Courts and Contemporary Conflicts 315 (1974).

42. See supra note 4, at 662.