Arbitration Academy
State-to-State Arbitration
10 July 2012
Historic Trends: Inter-State Arbitrations
(1801-1980)
Source: A.M. Stuyt, Survey of International Arbitrations 1974-1989
Historic Trends: Inter-State Arbitrations
•
178 arbitrations 1900-1945 (45 years)
•
43 arbitrations 1946-1989 (43 years)
Most common issues for arbitration:
•
State Responsibility
•
Territorial Claims
•
Treaty Interpretation
Early General Arbitration Treaties
Treaty of Amity, Commerce and Navigation
between the Kingdom of Hawaii and Italy
July 22, 1863
ARTICLE XXVI.
If […] differences between the contracting parties should cause an interruption of
the relations of friendship between them, […] the arbitration of a third power,
equally the friend of both, shall by a common accord be appealed to.
Early General Arbitration Treaties (Reservations)
Arbitration Treaty between Greece and Spain
March 11/24, 1910
Article 1
The high contracting parties engage themselves to submit to [arbitration], the
differences which might arise between them, . . . Provided they concern neither
the honor nor vital interests, the independence nor the sovereignty of the
contracting countries.
The 1899 Hague Peace Conference
Bronze statue by
Professor A.W.M. Odé
1921
The 1899 Peace Conference
The Third Commission: Arbitration
The Netherlands Delegation
Article 35 of the 1899 Hague Convention
In case of death, retirement, or disability from any cause of one of the
Arbitrators, his place shall be filled in accordance with the method of
his appointment.
Article 52 of the 1899 Hague Convention
The Award, given by a majority of votes, is accompanied by a
statement of reasons […].
Article 55 of the 1899 Hague Convention
The Parties can reserve in the ‘Compromis’ the right to demand the
revision of the Award.
It can only be made on the ground of the discovery of some new fact
calculated to exercise a decisive influence on the Award […].
Article 10 of the Russian draft Convention
Arbitration will be obligatory in the following cases, so far as they do
not concern the vital interests nor national honor of the contracting
States […].
United States of America/Republic of Mexico
The Pious Funds Case
The Nobel Peace Prize of 1911
“Tobias Asser received the Nobel Peace Prize in 1911, for his
devoted work in establishing the Permanent Court of Arbitration
during the first Hague Peace Conference of 1899.”
T.M.C. Asser Instituut
1899 CONVENTION FOR THE PACIFIC SETTLEMENT OF
INTERNATIONAL DISPUTES
Article 16
In questions of a legal nature, and especially in the interpretation or
application of International Conventions, arbitration is recognized by the
Signatory Powers as the most effective, and at the same time the most
equitable, means of settling disputes which diplomacy has failed to
settle.
.
1899 CONVENTION FOR THE PACIFIC SETTLEMENT OF
INTERNATIONAL DISPUTES
Chapter II. On the Permanent Court of Arbitration
Article 20
With the object of facilitating an immediate recourse to arbitration for
international differences…, the Signatory Powers undertake to organize
a Permanent Court of Arbitration, accessible at all times.
Structure of the PCA
Composed of three parts:
 Administrative Council (Member States)
 Members of the Court (Panel of Arbitrators)
 International Bureau (Secretariat)
www.pca-cpa.org
PCA ADMINISTRATIVE COUNCIL: 115 Member States
MEMBERS OF THE COURT
Article 23
…Each Signatory Power shall select four persons at the most, of known
competency in questions of international law, of the highest moral
reputation, and disposed to accept the duties of Arbitrators.
MEMBERS OF THE COURT
France
• Son Excellence M. Gilbert GUILLAUME
Ancien juge de la Cour internationale de Justice
• M. Jean-Pierre PUISSOCHET
Conseiller d’État
• M. Prosper WEIL
Professeur émérite à l’Université de droit, d’économie et de
sciences sociales de Paris
• M. Marc PERRIN DE BRICHAMBAUT
Conseiller d’État
MEMBERS OF THE COURT
Nigeria
•
The Honorable Prince BOLA AJIBOLA
Former Member of the International Law Commission of the United Nations
•
The Honorable Mr. ALHAJI ABDULLAHI IBRAHIM
Former Federal Minister of Education
•
Chief Christopher BAYO OJO
Member, United National International Law Commission
•
Ms. ADEDOYIN OYINKAN RHODES-VIVOUR
Chartered Arbitrator; CEDR Accredited Member
International Bureau
•
34 Experienced legal and administrative staff
•
Multinational and multilingual
•
Provide support to participants and tribunals in international
arbitral proceedings
THE PEACE PALACE
Small Hall of Justice
Unfinished tapestry of
“The Glorification of Peace”
donated by France
The Great Hall of
Justice
PCA as Failure
Instead of a permanent court, the Convention of
1899 gave but the phantom of a court, an
impalpable specter, or to be more precise yet, it
gave us a recorder with a list. […] What, may I
ask, has resulted in practice from that beautiful
creation of 1899?
- Tobias Asser
PCA as Failure
The Court should be able to assure the continuity of
jurisprudence. The present Court has not gone far in the
direction of establishing and developing international law.
Each case is isolated, lacking both continuity and
connection with the other.
A permanent tribunal, deciding cases in relation with each
other, would evidently be a means of unifying the law.
-Joseph Choate 1907
Déjà vu?
States may be tempted to consider
replacing the system of ad hoc
tribunals with a standing one that is
perhaps capable of producing more
consistent and coherent results.
- B. Legum
Pending cases by year
2000 - 2011
75
69
70
64
65
60
55
Number of cases
55
50
45
40
34
35
30
23
25
20
15
10
19
19
2005
2006
16
11
8
8
2001
2002
5
5
0
2000
2003
2004
Year
2007
2008
2009
2010
2011
Current PCA Docket
• 6 state-state arbitrations
• 37 investor-state arbitrations
• 21 arbitrations under contracts
www.pca-cpa.org
PCA State-State Cases
PCA’s State-State disputes 2001-2011
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2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Eritrea-Ethiopia Boundary Commission (2001)
Eritrea-Ethiopia Claims Commission (2001)
Ireland/UK (OSPAR Arbitration, 2001)
Ireland/UK (MOX Plant Case, 2002)
Belgium/Netherlands (Iron Rhine Arbitration, 2003)
Barbados/Trinidad and Tobago (2004)
Guyana/Suriname (2004)
Malaysia/Singapore (2004)
[The Government of Sudan/The Sudan People’s Liberation Movement/Army (Abyei
Arbitration, 2008)]
[Confidential Case] (2009)
Bangladesh/India (2010)
Pakistan/India (2011)
Mauritius/UK (2011)
Pending State-State Arbitrations
•
Bangladesh v. India (2010)
•
Pakistan v. India (2011)
•
Mauritius v. United Kingdom (2011)
•
Croatia/Slovenia (2012)
•
[Confidential Case] (2012)
•
[Confidential Case] (2012)