Remarks by Brooks Daly.

Author:Daly, Brooks
Position:CONFRONTING COMPLEXITY IN THE HAGUE: THE VIEW FROM THE COURTS AND TRIBUNALS
 
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Thank you very much. And thank you to Mayor Van Aartsen and to the American Society for organizing this event. I'm sorry that I only joined the Hague delegation today, detained in the Hague by other responsibilities, but I'm very happy to be here.

The Permanent Court of Arbitration, a product of the 1899 Hague Peace Conference, is not a court in the sense of the other international courts represented on this panel. Rather, the PCA serves as a permanent framework designed to assist temporary arbitral tribunals with the conduct of proceedings. Seeking to facilitate recourse to peaceful resolution of disputes, the states assembled at the Peace Conference determined that a permanent arbitral institution would make it more likely that they would use arbitration to resolve disputes and thereby avoid recourse to arms.

The PCA was busy in its early years. Eighteen cases were brought before it in the first two decades of its existence. Nevertheless, the PCA was also immediately criticized. Some critics believed arbitral tribunals created on an ad hoc basis for each dispute could not contribute to the coherent development of international law. There was also a sense of disappointment with the 1899 Conference, and its successor 1907 Conference, that the delegations had been unable to agree on general compulsory jurisdiction for the PCA. Although only a small minority of delegates opposed compulsory jurisdiction for this new institution, the rules of the Peace Conferences required unanimity in all decisions, which prevented the establishment of compulsory jurisdiction for the PCA. In effect, states agreed to the creation of the PCA, but not to its use.

The institution's weakness was revealed with the two world wars that would follow its founding. After the Second World War, the PCA went into a period of dormancy, administering only three cases between 1956 and 1996. Its reemergence as an active international court is due in large part to its close relationship with the other courts and tribunals in The Hague. Today the PCA benefits from a level of activity unparalleled in its history, with fifty-eight pending cases: six inter-state, thirty-two investor-state, and twenty contract claims involving at least one state or state entity. Its broad mandate enables the institution to lend its services to a wide range of cases. The PCA's case administration services extend to all subject matters, so long as the parties consent to arbitration and so long as one party is a state, state entity, or intergovernmental organization.

The concentration of international jurists in The Hague has a lot to do with the renewed activity of the PCA. These leading jurists are the same individuals who are sought after to sit as arbitrators in the most sensitive disputes in the world. So they attract arbitration to The Hague, a fact that may have nothing to do with the presence of the PCA in The Hague. For example, I think that Sir Robert Jennings, as President of the Eritrea-Yemen arbitration, only thought of using the PCA as an afterthought. The arbitral tribunal was constituted and seeking secretarial support. I imagine Sir Robert, a former President of the International Court of Justice, saying: "Well, what about this PCA over here that doesn't have anything to do? Maybe we could use them."

Thus, since the 1990s, the PCA has witnessed increasing contact with the jurists based at other courts and tribunals in The Hague. In addition to these leading judges calling upon the PCA for assistance in the arbitrations where they are appointed, they have also been involved in modernizing the institution, particularly through the development of new procedural rules for the PCA. On eight occasions over the last fifteen years, groups have been established to draft new procedural rules for the PCA, including leading jurists from The Hague courts and tribunals. The most recent set of Optional Rules for Arbitration of Disputes Relating to Outer Space Activities was produced by an advisory group chaired by the former President of the International Criminal Tribunal for the Former Yugoslavia, showing further cooperation between the institutions.

The PCA has also benefited from the jurisprudential developments of these other courts and tribunals. Their development of a body of jurisprudence gives PCA arbitrators a list of cases to which they and counsel appearing before them can refer. It may well make parties more comfortable with arbitration than they were in 1899. In any event, PCA arbitral tribunals regularly draw upon the jurisprudence of the other courts and tribunals in The Hague. The Eritrea/Ethiopia Claims Commission, for example, referred to the precedent of the ICTY when determining how to apply the Third Geneva Convention of 1949 to Eritrea, which did not become a party to that convention until after the war with Ethiopia. The Belgium/ Netherlands Arbitration referred on many occasions to the precedent of the ICJ, including with respect to the application of interpretive principles from the 1969 Vienna Convention on the Law of Treaties to an 1839 treaty between Belgium and the Netherlands. The Bank for International Settlements Tribunal cited the Iran-U.S. Claims Tribunal in deciding the best method for the valuation of the shares of the Bank that were compulsorily recalled from its private shareholders; it applied a fair market value standard.

The PCA has not only taken from these other courts and tribunals; it has also offered support to them in a variety of ways. One way is through its small procedural role in the mechanism for the appointment of judges to some of these courts. The ICJ Statute uses the PCA's Members of the Court to nominate its judges. The PCA maintains a list of arbitrators, called the Members of the Court, selected by the PCA Member States on the basis of their expertise in international law, high moral standing, and availability to accept arbitral appointments. The ICJ Statute sorts those Members of the Court into "national groups" for purposes of nominating judges to serve at the ICJ who are then voted on within the United Nations. The same mechanism is used by the International Criminal Court as one of two options for nominating judges under that court's founding treaty, the Rome Statute.

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