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

35 30 25 20 15 10 5 0 75 70 65 60 55 50 45 40 5 8 8 11 16 19 19 23 34 55 64 69 2000 2001 2002 2003 2004 2005

Year

2006 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

1. 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)