Inter-State Arbitration Since 1945: Overview and Evaluation

Inter-State Arbitration Since 1945: Overview and Evaluation

Description

Promoting and securing peaceful settlement of disputes remains one of the most important—and most difficult—objectives of the international legal system. While Article 33 of the UN Charter lists as methods of peaceful settlement negotiation, enquiry, mediation, conciliation, arbitration, and judicial settlement, this list is not exhaustive, and suggests a precision in classification which is belied by the complexity of dispute settlement practice. Arbitration as a method of inter-state dispute settlement in the modem period is often treated as having been inaugurated in proceedings under the Jay Treaty of 1794. In the subsequent evolution of practice concerning inter-state ‘arbitration’ a number of different interpretations of the term are discernible. The predominant approach is exemplified by the 1899 Hague Convention for the Pacific Settlement of International Disputes: “In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognised 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.” A comparable view was expressed by the International Law Commission in 1953, describing arbitration as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted”, and adding that “the arbitrators chosen should be either freely selected by the parties or, at least, . . . the parties should have been given the opportunity of a free choice of arbitrators.” The focus is thus on legal disputes. Arbitration is seen as an equitable means of settlement, but its object is the settlement of disputes by the application of legal rules, principles, and techniques, and not simply to reach an ‘equitable’ result. An alternative view, that arbitration is a means for settling non-legal disputes not suitable for judicial settlement, has been enshrined in a number of treaties, including the 1957 European Convention for the Peaceful Settlement of Disputes, but has received very little support in actual arbitral practice. In the post-1945 period, arbitration is best understood as a locus of activity rather than a highly precise category, recognised as distinct in practice but not separated by bright lines from adjudication on the one side and conciliation on the other. Thus, for instance, while conciliation is traditionally distinguished from arbitration on the basis that the parties are not obliged to accept the recommendations of a conciliation commission, treaty provisions occasionally provide that such recommendations are binding or at least must be considered in good faith. The United Nations Secretary-General in the 1986 Rainbow Warrior case between New Zealand and France functioned as both conciliator and arbitrator in producing a ruling which was ‘equitable and principled’, which ‘respect[ed] and reconcil[ed]’ the differing positions of the parties, which was informed by diplomatic consultations the Secretary-General had undertaken with each party separately, which did not contain explicit legal reasoning, and which the parties had agreed in advance to accept as binding. Arbitral tribunals have on several occasions been asked to produce non-binding opinions on legal disputes or to attempt to achieve friendly settlement of a dispute in the manner of a mediator or conciliator before issuing a binding ruling. 8 The substantive differences between arbitration and judicial settlement have also become less precise; the ICJ has developed the chambers procedure so as to be comparable in many respects to the procedure of an ad hoc arbitral tribunal, although institutional and other differences remain important. One area of possible difference, to be considered in a preliminary way in the final section of this chapter, concerns the relative importance of arbitral awards and of International Court judgments and opinions in the development of rules and principles of international law. Arbitration as a means of settlement offers considerable flexibility as to the legal status of the parties. The commercial arbitrations between states and non-state entities are well known, as are more unusual arbitrations such as that held in Geneva between Greenpeace and France. The France-UK Channel Tunnel Treaty of 29 July 1987 takes advantage of this flexibility in providing for the reference to arbitral tribunals of disputes between (i) states; (ii) states and concessionaires; and (iii) concessionaires. In accordance with the mandate given to the authors, this chapter will deal only with inter-state arbitration. In light of the continued importance of arbitration in the peaceful settlement of disputes, the purpose of this chapter is to examine the principal features of interstate arbitration in the period since 1945 (Section II), to assess the extent to which arbitration is distinct from conciliation and judicial settlement (Section III), and to evaluate the impact of arbitral decisions on the development of public international law (Section IV).

Source Publication

International Courts for the Twenty-First Century

Source Editors/Authors

Mark W. Janis

Publication Date

1992

Inter-State Arbitration Since 1945: Overview and Evaluation

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