The Permanent Court of Arbitration

The Permanent Court of Arbitration or PCA, established by treaty in 1899, is an intergovernmental organisation providing a variety of dispute resolution services to the international community. The PCA is an intergovernmental organisation located at The Hague in the Netherlands.

The PCA is not a court in the traditional sense but provides services of arbitral tribunal to resolve disputes that arise out of international agreements between member states, international organisations or private parties. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade.

The PCA has a three-part organisational structure consisting of an Administrative Council that oversees its policies and budgets, a panel of independent potential arbitrators known as the Members of the Court, and its Secretariat, known as the International Bureau, headed by the Secretary-General. The Permanent Court of Arbitration tribunals have jurisdiction for disputes based on the PCA founding documents (the Conventions on Pacific Settlement of International Disputes), or based on bilateral and multilateral treaties. Its Secretary-General furthermore acts as an appointing authority for arbitration.

History

The PCA was the first permanent intergovernmental organisation to provide a forum for the resolution of international disputes through arbitration and other peaceful means. The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference. The Conference had been convened at the initiative of Czar Nicholas II of Russia “with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments”.

Among the aims of the Conference had been the strengthening of systems of international dispute resolution, especially international arbitration. The delegates at the Conference were mindful that, during the previous one hundred years, there had been a number of successful international arbitrations, starting with the “Jay Treaty” Mixed Commissions at the end of the 18th century CE, and reaching a pinnacle with the Alabama arbitration in the beginning of the 1870s. In addition, the Institut de Droit International had adopted a code of procedure for arbitration in 1875.

This movement toward arbitration as a means of international dispute resolution was continued in 1899, and the most concrete achievement of the 1899 Conference was the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognised that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle”.

Accordingly, Article 20 of the 1899 Convention formally established the PCA, stating: “with the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention”. The 1899 Convention was revised at the second Hague Peace Conference in 1907. Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organisations, and private parties.

The Permanent Court of Arbitration

The Permanent Court of Arbitration is not a court in the conventional understanding of that term but an administrative organisation with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation.

The Administrative Council is a body composed of all diplomatic representatives of Member States accredited to the Netherlands. It is presided by the Minister of Foreign Affairs of the Netherlands, who is also a member. It is responsible for “direction and control” of the International Bureau, directs the organisation’s budget and reports on its activities. The International Bureau is the Secretariat of the Permanent Court of Arbitration and is headed by the Secretary-General. It provides linguistic, research, administrative support to PCA arbitration tribunals.

The judges or arbitrators that hear cases are called Members of the Court. Each member state may appoint up to four “of known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators” for a renewable 6-year term. The Permanent Court of Arbitration is not part of the UN system, although it does have observer status in the UN General Assembly since 1993.

TITLE I ON THE MAINTENANCE OF THE GENERAL PEACE of the 1899 Convention for the Pacific Settlement of International Disputes, in its Article 1, states that “With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences”.

Chapter III On Arbitral Procedure of the 1899 Convention for the Pacific Settlement of International Disputes, in its Article 30, enounces that “With a view to encourage the development of arbitration, the Signatory Powers have agreed on the following Rules which shall be applicable to arbitral procedure, unless other Rules have been agreed on by the parties”.

Article 31 of the aforementioned Convention adds that “The Powers who have recourse to arbitration sign a special Act (Compromis), in which the subject of the difference is clearly defined, as well as the extent of the Arbitrators’ powers. This Act implies the undertaking of the parties to submit loyally to the Award”.

Article 32 of the 1899 Convention for the Pacific Settlement of International Disputes point out that “The duties of Arbitrator may be conferred on one Arbitrator alone or on several Arbitrators selected by the parties as they please, or chosen by them from the Members of the Permanent Court of Arbitration established by the present Act. Failing the constitution of the Tribunal by direct agreement between the parties, the following course shall be pursued: Each party appoints two Arbitrators, and these latter together choose an Umpire. In case of equal voting, the choice of the Umpire is intrusted to a third Power, selected by the parties by common accord. If no agreement is arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected”.

In the Articles 30 to 57 of the Hague Convention of 1899, the rules of arbitration procedure are outlined. These rules are an adapted version of pre-existing treaties among the states. They were amended in 1907, the creation of a summary procedure for simple cases being the most conspicuous change, and were relevant in the 1920s development of rules for the Court of International Justice.

The decision is published as a writ, along with any dissenting opinions. The writ is read to a public session in the presence of the agents and lawyers of the parties to the case. The decision is binding on the parties, and there is no mechanism for appeal. This is what can be said on the Permanent Court of Arbitration.