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See also:ARBITRATION, See also:INTERNATIONAL . International arbitration is a proceeding in which two nations refer their See also:differences to one or more selected persons, who, after affording to each party an opportunity of being heard, pronounce See also:judgment on the matters at issue. It is understood, unless otherwise expressed, that the judgment shall be in accordance with the See also:law by which civilized nations have agreed to be See also:bound, whenever such law is applicable. Some authorities, notably the eminent Swiss jurist, J. K. See also:Bluntschli, consider that unless this tacit See also:condition is complied with, the See also:award may be set aside. This would, however, be highly inconvenient since international law has never been codified. A fresh arbitration might have to be entered on to decide (I) what the law was, (2) whether it applied to the See also:matter in See also:hand. Arbitration differs from See also:Mediation (q.v.) in so far as it is a judicial See also:act, whereas Mediation involves no decision, but merely See also:advice and suggestions to those who invoke its aid.
Arbitral Tribunals.—An international arbitrator may be the See also:chief of a friendly See also:power, or he may be a private individual. When he is an See also:emperor, a See also: The See also:analogy between the two fails to hold See also:good in another respect also. In civil arbitration, the decision or award may be made a See also:rule of See also:court, after which it becomes enforceable by See also:writ of See also:execution against See also:person or See also:property. An international award cannot be enforced directly; in other words it has no legal See also:sanction behind it. Its See also:obligation rests on the good faith of the parties to the reference, and on the fact that, with the help of a See also:world-wide See also:press, public See also:opinion can always be brought to See also:bear on any See also:state that seeks to evade its moral See also:duty. The obligation of an See also:ordinary treaty rests on precisely the same See also:foundations. Where there are two or any other even number of arbitrators, See also:provision is usually made for an See also:umpire (See also:French sur-arbitre). The umpire may be chosen by the arbitrators themselves or nominated by a neutral power. In the " See also:Alabama " arbitration five arbitrators were nominated by the president of the See also:United States, the See also:queen of See also:England, the king of See also:Italy, the president of the Swiss See also:Confederation, and the emperor of See also:Brazil respectively. In the See also:Bering See also:Sea arbitration there were seven arbitrators, two nominated by See also:Great See also:Britain, two by the United States, and the remaining three by the president of the French Republic, the king of Italy, and the king of See also:Sweden and See also:Norway respectively. In neither of these cases was there an umpire; nor was any necessary, since the decision, if not unanimous, See also:lay with the See also:majority. (See See also:separate articles on BERING SEA ARBITRATION and "ALABAMA" ARBITRATION.) Arbitral tribunals may have to See also:deal with questions either of law or fact, or of both combined. When they have to deal with law only, that is to say, to lay down a principle or decide a question of liability, their functions are judicial or quasi-judicial, and the result is arbitration proper. Where they have to deal with facts only, e.g. the evaluation of pecuniary claims, their functions are administrative rather than judicial, and the See also:term See also:commission is applied to them. " Mixed commissions," so called because they are composed of representatives of the parties in difference, have been frequently resorted to for delimitation of frontiers, and for settling the indemnities to be paid to the subjects of neutral See also:powers in respect of losses sustained by non-combatants in times of See also:war or civil insurrection. The two earliest of these were nominated in 1794 under the treaty negotiated by See also:Lord See also:Grenville with Mr See also: The rapid growth of international arbitration in See also:recent times may be gathered from the following figures. Between 1820 and 1840, there were eight such instances; between 1840 and x86o, there were See also:thirty; between i86o and 188o, See also:forty-four; between 188o and 1900, ninety. Of the governments which were parties in these several cases Great Britain heads the See also:list in point of See also:numbers, the United States of See also:America being a good second. See also:France, See also:Portugal, See also:Spain and the Netherlands are the See also:European states next in See also:order. The See also:present article is concerned exclusively with arbitration in regard to such existing differences as are capable of precise statement and of prompt See also:adjustment. These differences may be arranged in two See also:main See also:groups: (a) Those which have arisen between state and state in their See also:sovereign capacities; (b) Those in which one state has made a demand upon another state, ostensibly in its sovereign capacity, but really on behalf of some individual, or set of individuals, whose interests it was bound to protect. To See also:group (a) belong territorial differences in regard to ownership of See also:land and rights of fishing at sea; to group (b) belong pecuniary claims in respect of acts wrongfully done to one or more subjects of one state by, or with the authority of, another state. To enumerate even a tenth See also:part of the successful arbitrations in recent times' would occupy too much space. Some prominent examples (dealt with elsewhere under their appropriate titles) are the dispute between the United States and Great Britain respecting the " Alabama " and other vessels employed by the Confederate See also:government during the American Civil War (award in 1872); that between the same powers respecting the See also:fur-See also:seal See also:fishery in Bering Sea (award in 1893); that between Great Britain and See also:Venezuela respecting the boundary of See also:British See also:Guiana (award in 1899) ; that between Great Britain, the United States and Portugal respecting the Delagoa railway (award in 1900); that between Great Britain and the United States respecting the boundary of See also:Alaska (award in 1903). The See also:long-See also:standing See also:Newfoundland fishery dispute with France (finally settled in 1904) is dealt with under Newfoundland. Other examples are shortly noticed in the tables on p. 329, which although by no means exhaustive, sufficiently indicate the See also:scope and trend of arbitration during the years covered. The cases decided by the permanent tribunal at the See also:Hague established in 1900 are not included in these tables. They are separately discussed later.
The Hague Tribunal.—The See also:establishment of a permanent tribunal at the Hague, pursuant to the Peace See also:convention of 1899, marks a momentous See also:epoch in the history of international arbitration. This tribunal realized an See also:idea put forward by See also:Jeremy See also:Bentham towards the See also:close of the 18th See also:century, advocated by See also: 25). The signatory powers desiring to apply to the tribunal for the settlement of a difference between them are to notify the same to the arbitrators. The arbitrators who are to determine this difference are, unless otherwise specially agreed, to be chosen from the general list of members in the following manner:—each party is to name two arbitrators, and these are to choose a chief arbitrator or umpire (sur-arbitre). If the votes are equally divided the selection of the chief arbitrator is to be entrusted to a third power to be named by the parties. (Art. 26). The tribunal is to sit at the Hague when practicable, unless the parties otherwise agree. (Art. 27). " The signatory powers consider it a duty in the event of an acute conflict threatening to break out between two or more of them to remind these latter that the permanent court is open to them. This See also:action is only to be considered as an exercise of good offices." Several of the powers nominated members of the permanent court pursuant to Art. 25, quoted above, those nominated on behalf of Great Britain being Lord Pauncefote, Sir See also:Edward See also:Malet, Sir Edward See also:Fry and See also:Professor Westlake. On the See also:death of Lord Pauncefote, See also:Major-General Sir John C. Ardagh was appointed in his place. Hague Cases.—(1) The first case decided by the Hague court was concerned with the " Pious Fund of the Californias." A fund bearing this name was formed in the 18th century for the purpose The pious of converting to the See also:Catholic faith the native See also:Indians of fund of Upper and See also:Lower See also:California, both of which then belonged the See also:Call-to See also:Mexico, and of maintaining a Catholic priesthood there. fernlas. By a See also:decree of 1842 this fund was transferred to the public See also:treasury of Mexico, the Mexican government undertaking to pay See also:interest thereon in See also:perpetuity in furtherance of the See also:design of the See also:original donors. After the See also:sale of Upper California to the United States, effected by the treaty of Guadalupe See also:Hidalgo (1848), the Mexican government refused to pay the proportion of the interest to which Upper California was entitled. The question of liability was then referred to commissioners appointed by each state, and, on their failing to agree, to Sir Edward See also:Thornton, British See also:minister at Washington, who by his award, in 1875, found there was due from Mexico to Upper California, or rather to the bishops there as administrators of the fund, an arrear of interest amounting to nearly $See also:ioo,000, which was directed to be paid in See also:gold. This award was carried out, but See also:payment of the current interest was again withheld as from the 24th of See also:October 1868. Claim was thereupon made on Mexico by the United States on behalf of the bishops, but without success. Ultimately, in May 1902, an agreement was come to between the two governments which provided for the settlement of the dispute by the Hague tribunal. The points to be determined were (I) whether the matter was res judicata by reason of Sir E. Thornton's award; (2) whether, if not, the claim for the interest was just. The arbitrators selected by the United States were Sir E. Fry and Professor F. de See also:Martens, and by Mexico, Professor See also:Asser and Professor de Savornin Lohman, both of See also:Amsterdam. These four (none of whom, it will be observed, was of the See also:nationality of either party in difference) See also:chose for their umpire Professor Matzen, of See also:Copenhagen, president of the Landsthing there. In October 1902, the court decided both questions in the affirmative, awarding the payment by Mexico of the See also:annual sum claimed, not in gold, but en monnaie ayant See also:tours legal au Mexique. The direction to pay in gold made by Sir E. Thornton was held to be referable only to the mode of the execution of the award, and therefore not to be chose jugee. (2) The second arbitration before the Hague court was more important than the first, not only because so many of the great powers were concerned in it, but also because it brought Great about the discontinuance of acts of war. The facts may Britain, be stated shortly thus. By three several protocols signed Germany at Washington in See also:February 1903, it was agreed that and Italy certain claims by Great Britain, Germany and Italy, on versus behalf of their respective subjects against the Venezuelan Venezuela, government should be referred to three mixed commissions, and that for the purpose of securing the payment of these claims 30 % of the customs revenues at the ports of La Guayra and Puerto Caballo should be remitted in monthly instalments to the representative of the See also:Bank of England at See also:Caracas. See also:Prior to the date of these protocols, an See also:attempt had been made by Great Britain, Germany and Italy to enforce their claims by See also:blockade, and a further question arose as between these three powers on the one hand, and the United States of America, France, Spain, See also:Belgium, the Netherlands, Sweden and Norway, and Mexico (all of whom had claims against Venezuela, but had abstained from hostile action) on the other hand, as to whether the blockading powers were entitled to preferential treatment. By three several protocols signed in May 1903 this question was agreed to be submitted to the Hague court, three members of which were to be named as arbitrators by the tsar of Russia, but no arbitrator was to be a subject or See also:citizen of any of the signatory or creditor powers. The arbitrators named by the tsar were M. See also:Muraviev, minister of See also:justice and See also:attorney-general of the See also:Russian See also:empire; Professor Lammasch, member of the Upper See also:House of the See also:Austrian See also:parliament; and M. de Martens, then member of the See also:council of the See also:ministry of See also:foreign affairs at St See also:Petersburg. The arbitrators by their award in February 1904 decided unanimously in favour of the blockading powers and ordered payment of their claims out of the 30 % of the receipts at the two Venezuelan ports which had been set apart to meet them. (3) The third case before the Hague court was heard in 1904-1905. A controversy not amenable to ordinary See also:diplomatic met hods arose between Great Britain, France and Germany on (treat the one hand and See also:Japan Britaln, on the other hand as to Prance the legality of a house- and tax imposed by Japan on Qermany certain subjects of those Yere"s powers who held leases in Japan. perpetuity. The question turned upon the true construction of certain treaties between theEuropean powers and Japan which had been made a few years previously. By three protocols signed at See also:Tokyo in See also:August 1902 this question was agreed to be submitted to arbitrators, members of the court at the Hague, one .to be chosen by each party with power to name an umpire. The arbitrators chosen were M. Renault, professor of the law See also:faculty in Paris, and M. Montono, the See also:Japanese See also:envoy to the French See also:capital. They named as their umpire and president M. See also:Gram, ex-minister of the state of Norway. In May 1905, an award was pronounced by the majority (M. Gram and M. Renault) in favour of the European contention, M. Montono dissenting both from the conclusion of his colleagues and from the reasons on which it was based.
(4) Barely two months had elapsed since the date of the last award when the Hague Qreaf
court was again called into Britain
requisition. The See also:scene of and the
dispute this See also:time was on French
the S.E. See also:coast of See also:Arabia. See also:flag at See also:Muscat, the capital of the muscat. See also:kingdom of See also:Oman on that
coast, is ruled by a See also:sultan, whose See also:independence both Great Britain and France had, in See also: It was held that
although generally speaking every
sovereign may decide to whom he will See also:accord the right to fly his flag,
yet in this case such right was limited by the general act of the See also:Brussels
conference of July 1890 relative to the See also:African slave trade, an act which
was ratified by France on the 2nd of See also:June 1892 ; that accordingly the
owners and See also:master of dhows who had been authorized by France to fly
the French flag before the last-named date retained this authorization
Territorial Disputes (Ownership).
See also: Melville See also: Such exemption would be contrary to the engagement to respect the independence of the sultan solemnly made in 1862. Arbitral See also:Procedure.—Not the least of the benefits of the Hague convention of 1899 (strengthened by that of 1907) is that it contains rules of procedure which furnish a See also:guide for all arbitrations whether conducted before the Hague court or not. These may be summarized as follows:—The initial step is the making by the parties of a See also:special agreement clearly defining the subject of the dispute. The next is the choice of the arbitrators and of an umpire if the number of arbitrators is even. Each party then by its agents prepares and presents its case in a narrative or argumentative See also:form, annexing thereto all relevant documents. The cases so presented are interchanged by transmission to the opposite party. The See also:hearing consists in the discussion of the matters contained in the several cases, and is conducted under the direction of the president who is either the umpire, or, if there is no umpire, one of the arbitrators. The members of the tribunal have the right of putting questions to the counsel and agents of the parties and to demand from them explanation of doubtful points. The arbitral judgment is read out at a public sitting of the tribunal, the counsel and agents having been duly summoned to hear it. Any application for a revision of the award must be based on the See also:discovery of new See also:evidence of such a nature as to exercise a decisive See also:influence on the judgment and unknown up to the time when the hearing was closed, both to the tribunal itself and to the party asking for the revision. These general rules are universally applicable, but each case may require that special rules should be added to them. These each tribunal must make for itself. One special and necessary rule is in regard to the See also:language to be employed. This rule must vary according to convenience and is therefore made ad hoc. In case No. 1 noted above, the court allowed See also:English or French to be spoken according to the nationality of the counsel engaged. The judgment was delivered in French only. In case No. 2 it was agreed that the written and printed memoranda should be in English but might be accompanied by a See also:translation into the language of the power on whose behalf they were put in. The oral discussion was either in English or French as happened to be convenient. The judgment was drawn up in both See also:languages. In case No. 3 French was the See also:official language throughout, but the parties were allowed to make any communication to the tribunal, in French, English, German or Japanese. In case No. 4 French was again the official language, but the counsel and agents of both parties were allowed to address the tribunal in English. The protocols and the judgment were drawn up in French accompanied by an official English translation. Limits of International Arbitration.—Of the numerous treaties for general arbitration which have been made during the loth century that between Great Britain and France (79o3) is a type. This treaty contains reservations of all questions involving the vital interests, the independence or the See also:honour of the contracting parties. The language of the See also:reservation is open to more interpretations than one. What, for instance, is meant by the phrase "See also:national independence" in this connexion? If it be taken in its strict acceptation of autonomous state sovereignty, the exception is somewhat of a truism. No self-respecting power would, of course, consent to submit to arbitration a question of See also:life or death. This would be as if two men were to agree to draw lots as to which should commit See also:suicide in order to avoid fighting a See also:duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a See also:restraint on its freedom of action, then the exception would seem to exclude such a question as the true See also:interpretation of an ambiguous treaty, a subject with which experience showsinternational arbitration is well fitted to deal. Again, we may ask, what is meant by the phrase " national honour "? It was thought at one time that the honour of a nation could only be vindicated by war, though all that had happened was the slighting of its flag, or of its accredited representative, during some sudden ebullition of See also:local feeling. France once nearly See also:broke off peaceful relations with Spain because her ambassador at See also:London was assigned a place below the See also:Spanish ambassador, and on another occasion she despatched troops into Italy because her ambassador at Rome had been insulted by the See also:friends and partisans of the See also:pope. The truth is that the extent to which national honour is involved depends on factors which have nothing to do with the immediate subject of complaint. So long as general good feeling subsists between two nations, neither will easily take offence at any discourteous act of the other. But when a deep-seated antagonism is concealed beneath an unruffled See also:surface, the most trivial incident will bring it to the See also:light of See also:day, " Outraged national honour " is a highly elastic phrase. It may serve as a pretext for a serious See also:quarrel whether the alleged " See also:outrage " be great or small. The prospects of the expansion of international arbitration will be more clearly perceived if we classify afresh all state differences under two heads:—(r) those which have a legal See also:character, (2) those which have a See also:political character. Under " legal differences" may be ranged such as are capable of being decided, when once the facts are ascertained, by settled, recognized rules, or by rules not settled nor recognized. but (as in. the " Alabama " case) taken so to be for the purpose in hand. Boundary cases and cases of See also:indemnity for losses sustained by non-combatants in time of war, of which several instances have already been mentioned, belong to this class. To the same class belong those cases in which the arbitrators have to adapt the provisions of an old treaty to new and altered circumstances, somewhat in the way in which English courts of justice apply the See also:doctrine of cy-pres." " Political differences " on the other hand, are such as affect states in their,See also:external relations, or in relation to their subjects or dependants who may be in revolt against them. Some of these differences may be slight, while others may be vital, or (which amounts to the same thing) may seem to the parties to be so. All differences failing under the first of these two general heads appear to be suitable for international arbitration. Differences falling under the second general head are, for the most part, unsuitable, and may only be adjusted (if at all) through the mediation of a friendly power. The interesting problem of the future is—are we to regard this See also:classification as fixed or as merely transitory? The See also:answer depends on several considerations which can only be glanced at here. It may be that, just as the usages of civilized nations have slowly crystallized into international law, so there may come a time when the political principles that govern states in relation to each other will be so clearly defined and so generally accepted as to acquire something of a legal or quasi-legal character. If they do, they will pass the line which at present separates arbitrable from non-arbitrable matter. This is the juridical aspect of the problem. But there is also an economic See also:side to it by reason of the conditions of See also:modern warfare. Already the nations are groaning under the burdens of militarism, and are for ever diverting energies that might be employed in the furtherance of useful productive See also:work to purposes of an opposite character. The interruption of maritime intercourse, the stagnation of See also:industry and trade, the rise in the See also:price of the necessaries of life, the impossibility of adequately providing for the families of those—call them reservists, " See also:landwehr," or what you will—who are torn away from their daily toil to serve in the tented field,—these are considerations that may well make us pause before we abandon a peaceful See also:solution and appeal to See also:brute force. Lastly, there is the moral aspect of the problem. In order that inter-national arbitration may do its perfect work, it is not enough to set up a standing tribunal, whether at the Hague or elsewhere, and to equip it with elaborate rules of procedure. Tribunals and rules are, after all, only machinery. If this machinery is to act smoothly we must improve our See also:motive power, the source of which is human See also:passion and sentiment. Although religious animosities between See also:Christian nations have died out, although dynasties may now rise and fall without raising See also:half See also:Europe to arms, the springs of warlike enterprise are still to be found in commercial jealousies, in imperialistic ambitions and in the doctrine of the survival of the fittest which lends scientific support to both. These must one and all be cleared away before we can enter on that era of universal peace towards the attainment of which the tsar of Russia declared, in his famous circular of 1898, the efforts of all governments should be directed. Meanwhile it is legitimate to See also:share the See also:hope expressed by President See also:Roosevelt in his See also:message to See also:Congress of See also:December 1905 that some future Hague conference may succeed in making arbitration the customary method of settling international disputes in all See also:save the few classes of cases indicated above, and that—to quote Mr Roosevelt's words—" these classes may themselves be as sharply defined and rigidly limited as the governmental and social development of the world will for the time being permit."
AuTxoarrIES.—Among special See also:treatises are: Kamarowsky, Le Tribunal international (traduit See also:par Serge de Westman) (Paris, 1887) ; Rouard cle Card, See also:Les Destinees de l'See also:arbitrage international, depuis la See also:sentence rendue par le tribunal de Geneve (Paris, 1892) ; See also:Michel Revon, L'Arbitrage international (Paris, 1892) ; See also: Arbitration and mediation will be found briefly noticed in See also:Phillimore's International Law; in Sir See also: Additional information and CommentsThere are no comments yet for this article.
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