whatever to the national existence, independence, dignity, and prosperity of the States concerned. Already before the World War, a net of so-called peace societies had spread over the whole world, and their members unceasingly worked for the promotion of arbitration. The parliaments of several countries had repeatedly given their vote in its favour; and the Hague Peace Conference of 1899 created a Permanent Court of Arbitration, a step by which a new epoch in the development of International Law was inaugurated. It was certain that arbitration would gradually increase its range, although the time was not then, and is not now, in sight when all international differences will find their settlement by arbitration.

But

The institution of the Permanent Court of Arbitration at the Hague stood before the World War between a cross-fire of impatient pacifists and cynical pessimists. Because a number of wars had been fought since the establishment of the Permanent Court, impatient pacifists were in despair and considered the institution. of the Court of Arbitration a failure, whereas cynical pessimists triumphantly pointed to the fact that the millennium seemed to be as far distant as ever. the calm observer of the facts who possessed insight into the process of historical development, had no cause to despair, for, compared with some generations before, arbitration was an established force which daily gained more power and influence. So it was to be expected that the close of the World War would witness a strong movement of opinion in favour of arbitration, and this expectation was justified. The Covenant of the League of Nations sets arbitration in the forefront of its plans for averting war, and existing arbitration treaties gain a new importance. It is therefore desirable to discuss in some detail arbitration according to Hague Convention I.

Arbitral

Justice in general.

V

ARBITRATION ACCORDING TO THE HAGUE CONVENTION

Hershey, Nos. 314-320— Ullmann, §§ 155-156 - Bonfils, Nos. 9531-9551— Nys, ii. pp. 568-572-Despagnet, Nos. 742-746 bis-Mérignhac, i. pp. 486-540-Holls, The Peace Conference at the Hague (1900)-Martens, La Conférence de la Paix à la Haye (1900)—Mérignhac, La Conférence internationale de la Paix (1900)-Fried, Die zweite Haager Konferenz (1908) — Meurer, i. pp. 299-372-Scott, Conferences, pp. 286-385Higgins, pp. 164-179-Lémonon, pp. 188-219-Nippold, i. pp. 36-231— Wehberg, Kommentar, pp. 46-164 - Lammasch, Die Lehre von der Schiedsgerichtsbarkeit (1914)-Strupp, Die internationale Schiedsgerichtsbarkeit (1914).

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§ 19. Of the ninety-seven articles of the Hague Convention for the Pacific Settlement of International Disputes, no fewer than fifty-four-namely, Articles 37-90-deal with arbitration in four chapters, headed 'On Arbitral Justice,' 'On the Permanent Court of Arbitration,'' On Arbitral Procedure,' and 'On Arbitration by Summary Procedure.' The first chapter, Articles 37-40, contains rules on arbitral justice in general, which, however, with one exception, are not of a legal but of a merely doctrinal character. Thus the definition in Article 37, 'international arbitration has for its object the determination of controversies between States by judges of their own choice and upon the basis of respect for law,' is as doctrinal as the assertion of Article 38: 'In questions of a judicial character, and especially in questions regarding the interpretation or application of international treaties or conventions, arbitration is recognised by the contracting Powers as the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods. Consequently it would be desirable that, in disputes regarding the above-mentioned questions, the contracting Powers should, if the case arise, have recourse

to arbitration, in so far as circumstances permit.' And the provision of Article 39, that an agreement of arbitration may be made respecting disputes already in existence, or arising in the future, and may relate to every kind of controversy, or solely to controversies of a particular character, is as doctrinal as the reservation of Article 40, which runs: Independently of general -or special treaties imposing expressly the obligation to have recourse to arbitration on the part of any of the contracting Powers, these Powers reserve to themselves the right to conclude new general or special agreements with a view to extending obligatory arbitration to all cases which they consider possible to submit to it.' The only rule of legal character is that of Article 37 (second paragraph), enacting the already existing customary rule of International Law, that the agreement of arbitration implies the obligation to submit in good faith to the arbitral sentence.'

On the signatory Powers no obligation to submit any difference to arbitration was imposed. Even differences of a judicial character, and especially those regarding the interpretation or application of treaties (for the settlement of which the signatory Powers, in Article 38, acknowledged arbitration to be the most efficacious and at the same time the most equitable method), had not necessarily to be submitted to arbitration. Yet the principle of compulsory arbitration for a limited number of international differences was by no means negatived by the Hague Peace Conferences, especially not by the Second Conference.

The principle found indirect recognition in the Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts.1 In Article 1 of this convention, which stipulates that

See above, vol. i. § 135, where the so-called Drago Doctrine is likewise discussed.

Arbitration Treaty

and Ap

pointment

of Arbi

trators.

recourse to the employment of force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals is not allowed unless the debtor State refuses arbitration, compulsory arbitration has been victorious.

Moreover, although it was not possible to agree upon the inclusion in Convention I. of any stipulation embodying compulsory arbitration for a number of differences, the principle itself was fully recognised, and the Final Act of the Second Peace Conference included, therefore, a declaration that the conference is unanimous (1) in admitting the principle of compulsory arbitration; (2) in declaring that certain disputes, in particular those relating to the interpretation and application of international agreements, may be submitted to compulsory arbitration without any restriction.'

There were, therefore, reasonable grounds for the hope and expectation that one of the future Peace Conferences would find a way out of the difficulty, and come to an agreement upon compulsory arbitration for a limited number of international differences.1

§ 20. According to Article 52, the conflicting States which resort to arbitration sign a special Act, the compromis, which clearly defines: the subject of the dispute; the time allowed for appointing the arbitrators; the form, order, and time in which the communications referred to in Article 63 must be made; the sum which each party must deposit in advance to defray expenses; the manner of appointing arbitrators (if there be occasion); any special powers which may eventually belong to the tribunal, where it shall meet, the languages to be used, and any special conditions upon which the

1 See Scott, Conferences, pp. 319385, where the proceedings of both the First and Second Peace Confer

ences concerning compulsory arbitration are sketched in a masterly and very lucid style.

parties may agree. Should, however, the conflicting States prefer it, the Permanent Court at the Hague is competent to draw up and settle the compromis, and the court is likewise in some other cases competent to settle the compromis (Articles 53-54). The parties may agree to have recourse to the Permanent Court of Arbitration which was instituted by the convention; 1 but they may also assign the arbitration to one or several arbitrators chosen by them, either from the members of the Permanent Court of Arbitration, or otherwise (Article 55). If they choose a head of a State as arbitrator, the whole of the arbitral procedure is to be determined by him (Article 56). If they choose several arbitrators, an umpire is to preside, but in case they have not chosen an umpire, the arbitrators are to elect one of their own number as president (Article 57). If the compromis is settled by a commission, as contemplated by Article 54, in default of an agreement to the contrary, the commission itself shall form the arbitration tribunal (Article 58). In case of death, resignation, or disability of one of the arbitrators from any cause, his place is to be filled in accordance with the method of his appointment (Article 59). The place of session of the arbitrators is to be determined by the parties; and failing this, is to be the Hague. It may not be changed by the arbitrators without the consent of the parties; and may only be on the territory of a third State with the latter's consent (Article 60). The International Bureau of the Court at the Hague is authorised to put its offices and its staff at the disposal of parties which have preferred to bring their dispute before arbitrators other than the Permanent Court of Arbitration (Article 47).

§ 21. The parties may agree upon such rules of arbitral procedure as they like. If they fail to stipulate 1 Details have been given above, vol. i. §§ 472-476.