Value tion. § 18. There can be no doubt that arbitration is, of Arbitra- and with every day becomes more and more, of great importance. History proves that already in antiquity and during the Middle Ages arbitration was occasionally made use of as a peaceable means of settling international differences. But, although an International Law made its appearance in modern times, during the sixteenth, seventeenth, and eighteenth centuries very few cases of arbitration occurred. It was not before the end of the eighteenth century that arbitration was frequently made use of. There are 177 cases from 1794 to the end of 1900.2 This number shows that the inclination of States to agree to arbitration has increased, and there can be no doubt that arbitration has a great future. States and the public opinion of the whole world become more and more convinced that there are a good many international differences which may well be determined by arbitration without any danger whatever to the national existence, independence, dignity, and prosperity of the States concerned. A net of so-called Peace Societies has spread over the whole world, and their members unceasingly work for the promotion of arbitration. The Parliaments of several countries have repeatedly given their vote in favour of arbitration; and the Hague Peace Conference of 1899 created a permanent Court of Arbitration, a step by which a new epoch of the development of International Law was inaugurated. according to which all differences 1 See examples in Calvo, III. origines du droit international (1894), pp. 52–61. 2 See La Fontaine's Histoire sommaire et chronologique des arbitrages internationaux in R.I., 2nd ser. IV. pp. 349, 558, 623. V ARBITRATION ACCORDING TO THE HAGUE CONVENTION 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). Justice in 19. Of the 61 articles of the Hague Convention Arbitral for the peaceful adjustment of international differences, general. not fewer than 43-namély, articles 15-57-deal with arbitration in three chapters headed "On Arbitral Justice," "On the Permanent Court of Arbitration," and "On Arbitral Procedure." The first chapter, articles 15-19, contains rules on arbitral justice in general, which are, however, with one exception, not of a legal but of a mere doctrinal character. Thus the definition of article 15, "International arbitration has for its object the determination of controversies between States by judges of their own choice, upon the basis of respect for law," is as doctrinal as the assertion of article 16: "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 signatory 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." And the provision of article 17, 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 19, which runs: "Independently of existing general or special treaties imposing the obligation to have recourse to arbitration on the part of any of the signatory Powers, these Powers reserve to themselves the right to conclude, either before the ratification of the present Convention or afterwards, 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 18, 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 whatever is imposed to submit any difference to arbitration. 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 16 acknowledge arbitration as the most efficacious and at the same time the most equitable method, need not necessarily be submitted to arbitration. It should, however, be mentioned that originally a stipulation was intended which made arbitration obligatory for several kinds of differences.1 1 According to Holls, The Peace Conference at the Hague, p. 227, this stipulation was as follows: "From and after the ratification of the present treaty by all the signatory Powers, arbitration shall be obligatory in the following cases so far as they do not affect vital interests or the national honour of the contracting States. "(I) In the case of differences or conflicts regarding pecuniary damages suffered by a State or its citizens, in consequence of illegal or negligent action on the part of any State or the citizens of the latter. treaties or conventions upon the following subjects: "1. Treaties concerning postal and telegraphic service and railways, as well as those having for their object the protection of submarine telegraphic cables; Rules concerning the means of preventing collisions on the high seas; Conventions concerning the navigation of international rivers and inter-oceanic canals. "2. Conventions concerning the protection of literary and artistic property, as well as industrial and proprietary rights (patents, trade marks, and commercial names); Conventions regarding monetary affairs, weights and measures; tion pointment trators. § 20. According to article 31 the conflicting ArbitraStates which resort to arbitration shall sign a special Treaty act, in which the object of their difference is clearly and apdefined, as well as the extent of the powers of the of Arbiarbitrators. The parties may agree to have recourse to the permanent Court of Arbitration which was instituted by the Hague Convention and regarding which details have been given above, Vol. I., §§ 472476, 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 elsewhere (article 32). If they choose a head of a State as arbitrator, the whole of the arbitral procedure is to be determined by him (article 33). 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 34). In case of death, resignation, or disability from any cause of one of the arbitrators, his place is to be filled in accordance with the method of his appointment (article 35). The place of session of the arbitrators is to be determined by the parties; but if they fail to do it, the place of session is to be the Hague, and the place of session cannot, except in case of force majeure, be changed by the arbitrators without the consent of the parties (article 36). The International Bureau of the Court at the Hague is authorised to put its offices and its staff at the disposal of the signatory Powers in case the parties have preferred to bring their dispute Conventions regarding sanitary affairs and veterinary precautions and measures against the phyl. loxera. "3. Conventions regarding inheritances, extradition, and mutual judicial assistance. "4. Boundary Conventions or Treaties, so far as they concern purely technical and not political questions." 1 See above, Vol. I. § 474. Procedure of and Arbitral Tribunal. before other arbitrators than the permanent Court of Arbitration (article 26). § 21. The parties can agree upon such rules of before the arbitral procedure as they like. If they fail to stipulate special rules of procedure, the following rules are valid, whether the parties have brought their case before the permanent Court of Arbitration or have chosen other arbitrators (article 30) : (1) The parties can appoint counsel or advocates for the defence of their rights before the tribunal. They can also appoint delegates or special agents to attend the tribunal for the purpose of serving as intermediaries between them and the tribunal (article 37). (2) The tribunal selects the language for its own use and authorised for use before it (article 38). (3) As a rule the arbitral procedure is divided into the two distinct phases of preliminary proceedings and of discussion in Court. Preliminary proceedings consist in the communication by the respec tive agents to the members of the tribunal and to the opposite party of all printed or written acts and of all documents containing the arguments invoked in the case. This communication is to be made in the form and within periods fixed by the tribunal (article 39); for the latter is authorised to issue rules of procedure for the conduct of the case, to determine the form and periods of time in which each party must conclude its arguments, and to prescribe all formalities required for dealing with the evidence (article 49). Every document produced in the preliminary proceedings by one party must be communicated to the other party (article 40). (4) Upon the conclusion of the preliminary proceedings follows the discussion in Court; it consists |