The Arbitrators in the Pious Fund case called attention to the fact that the member of the arbitral tribunal chosen by his colleagues, who have been appointed directly by the Powers in litigation, is not necessarily the "Umpire" in the technical sense of the word. "He is only the member of the arbitral tribunal who, having the confidence of his colleagues, is chosen as their colleague. It might occur that this member of the arbitral tribunal, chosen by his colleagues, might absolutely refuse to take the presidency. Owing to his refusal to preside, the Court might be deprived of the services of some very distinguished jurist or statesman."

In consideration of these circumstances, the Arbitrators in the Pious Fund case suggested the following additions to the above article:

"The compromis shall leave to the members of the arbitral tribunal full powers to select from among themselves the President of the tribunal; and

"The appointment of the President of the arbitral tribunal shall take place at the first meeting of the members appointed or chosen." 1

Art. XXXV.-In case of the death, retirement, or disability from any cause of one of the Arbitrators, his place shall be filled in accordance with the method of his appointment.

Art. XXXVI.-The Tribunal's place of session is selected by the parties. Failing this selection, the Tribunal sits at The Hague.

The place thus fixed cannot, except in case of necessity, be changed by the Tribunal without the assent of the parties.

Art. XXXVII.-The parties have the right to appoint delegates or special agents to attend the Tribunal, for the purpose of serving as intermediaries between them and the Tribunal.

They are further authorised to retain, for the defence of their rights and interests before the Tribunal, counsel or advocates appointed by them for this purpose.

Art. XXXVIII.-The Tribunal decides on the choice of languages to be used by itself, and to be authorised for use before it.

It was

The Arbitrators in the Pious Fund case, while acknowledging the wisdom of this article, called attention to the necessity of arriving at an agreement beforehand with regard to the language to be used before the tribunal. "absolutely necessary that the point be determined prior to the commencement of the labours of the tribunal, in order that the selection of the agent and counsel might be made with a view to their knowledge of the language in which the arguments before the Arbitrators were to be carried on. The necessity of translating for the use of counsel the speeches made before the tribunal inevitably caused great loss of time."

They therefore suggested that future compromis should state the decision of the contracting parties on this subject.

The language question came up again in the Venezuela Indemnities case, and gave rise to the following decision, which explains itself :—

Whereas Germany, Great Britain, Italy, and Venezuela by the protocol of May 7, 1903, signed at Washington,2 declared (Art. IV.) that the English language should be used in the proceedings; and that none of the Powers

1 Why not "first meeting of the Court "?

2 See protocol, p. 32.

adhering to the protocol, except France, have made formal reservations concerning the above-mentioned stipulation; and that the reservation made by France has met with no formal opposition on the part of the interested Powers; and whereas the decision of the tribunal on the languages to be used implies no preference for any one language, but is dictated only by considerations of convenience having to do with this special case alone; and that it is impossible to expect the members of the tribunal and the representatives of the parties to use languages with which they are not familiar; and seeing that the French language is generally employed in all international meetings and transactions-the tribunal decides:

(1) The protocols, the decisions, and the sentence of the tribunal of arbitration shall be drawn up in English and in French, both having the same authoritative and judicial value;

(2) The written and printed memoranda shall be drawn up in the English language and be accompanied by a translation in the language of the Power by which they are filed.

On protest being made that this was not in accordance with the compromis, the Court reconsidered the above decision, and delivered a second one in the following terms:

(1) In accordance with the Art. IV. of the protocol of May 7, 1903, the English language is recognised as the official language of the proceedings, and in accordance with the exact meaning of the said article, arguments may be presented in another language only with the permission of the tribunal.

(2) That the tribunal, by the decision just delivered, has admitted, within the limits indicated by this decision, the French language as subsidiary, since it is familiar to the members of the tribunal and to the majority of the representatives of the parties.

One of the German counsel thereupon made the following statement: "I am personally of the opinion that the decision of the Court contains not merely an interpretation of, but a deviation from Art. IV. of the protocol signed by Germany and Venezuela on May 7, 1903. If this opinion is correct, the Court has, as I look at it personally, in its decision gone beyond the discretion granted to it by Art. XLVIII. of the Convention of July 29, 1899."

In the Japanese Perpetual Leases case (award May 22, 1905), the language question was once more raised, and the following decision given (November 21, 1904):

The Court, by virtue of the power conferred on it by Art. XXXVIII. of The Hague Convention, decides: that the French language shall be that of the Court; nevertheless, the parties shall have the right to present either in French or in English any communications they may have to make to the Court.

In the Muscat Dhows case it is notorious that the greatest confusion resulted from the counsel of the parties not being familiar with each others' languages.

Art. XXXIX.-As a general rule the arbitral procedure comprises two distinct phases: preliminary examination and discussion.

Preliminary examination consists in the communication by the respective 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 shall be made in the form and within the periods fixed by the Tribunal in accordance with Art. XLIX.

Discussion consists in the oral development before the Tribunal of the arguments of the parties.

1 See p. 33.

In reference to this article, the Arbitrators in the Pious Fund case declared their approval of the distinction between the preliminary examination and the discussion "as absolutely justified and necessary." It was not, however, practicable unless the parties in dispute observed it by producing all the records and documents prior to the commencement of the arguments. "In other words, the preliminary examination, as a rule, ought to be finished before the commencement of the arguments." Only by way of a rare exception, and after authorisation in due form, should the production of new records and documents be allowed in the course of the argument, and then only under the reserves specified in Art. XL. and following articles of the Convention.

In view of these observations, the Arbitrators recommended that the distinction between the two phases, namely, the preliminary examination and the argument, be observed as strictly as possible by the parties in dispute, and that, if necessary, a longer time be granted by the parties for communication through the International Bureau or direct to the members of the tribunal, and vice versa, of all documents and records;

That the arbitral tribunal, once assembled, should, without loss of time, proceed with the arguments; and, after the close of the arguments,-i.e. in the time intervening between the close of the arguments and the delivery of the arbitral decision,-no communication of any new records or writings should be allowed on the part of the parties in litigation.

Art. XL.-Every document produced by one party must be communicated to the other party.

In the course of the Venezuela Indemnities case one of the British counsel (Mr. Arthur Cohen, K.C.) submitted the following rule, which he requested the Court to adopt :

If in the cases or countercases submitted to the Arbitrators any party shall have specified or alluded to any report or document in its own exclusive possession without annexing a copy, such party shall be bound, if any other party thinks proper to apply for it, to furnish that party with a copy thereof, and any party may call upon any other party through the Bureau to produce the originals or certified copies of any papers adduced as evidence; and such originals or certified copies shall be thereupon produced as soon as is reasonably possible.

The President stated that the Tribunal had no objection to granting this request, provided the production of such documents should cause no delay in the arguments (sitting of Oct. 5, 1903).

The subject of communication of documents came up again in the course of the same case, on Mr. Penfield (U.S.A. and Venezuela) reading a statement made by Mr. Bowen (U.S.A. and Venezuela) which had not appeared in any of the documents lodged with the Court. At the instance of Sir R. Finlay (Great Britain) the Court decided as follows:

"Whereas, according to the rules of The Hague Convention, every document produced with whatever object by any party must be communicated to all the others;

"That the document in question not being among the documents lodged with the Tribunal; decides:

"That copies of the said document be communicated by Mr. Penfield to the other parties" (sitting of Nov. 9, 1903).

Art. XLI.-The discussions are under the direction of the President.

They are only public if it be so decided by the Tribunal, with the assent of the parties.

They are recorded in the procès-verbaux drawn up by the Secretaries appointed by the President. These procès-verbaux alone have an authentic character.

Art. XLII. When the preliminary examination is concluded, the Tribunal has the right to refuse discussion of all fresh Acts or documents which one party may desire to submit to it without the consent of the other party.

Art. XLIII.-The Tribunal is free to take into consideration fresh Acts or documents to which its attention may be drawn by the agents or counsel of the parties.

In this case, the Tribunal has the right to require the production of these Acts or documents, but is obliged to make them known to the opposite party.

Art. XLIV. The Tribunal can, besides, require from the agents of the parties the production of all Acts, and can demand all necessary explanations. In case of refusal, the Tribunal takes note of it.

Art. XLV. The agents and counsel of the parties are authorised to present orally to the Tribunal all the arguments they may think expedient in defence of their case.

Art. XLVI. They have the right to raise objections and points. The decisions of the Tribunal on these points are final, and cannot form the subject of any subsequent discussion.

Art. XLVII.-The members of the Tribunal have the right to put questions to the agents and counsel of the parties, and to demand explanations from them on doubtful points.

Neither the questions put nor the remarks made by members of the Tribunal during the discussions can be regarded as an expression of opinion by the Tribunal in general, or by its members in particular. Art. XLVIII.-The Tribunal is authorised to declare its competence in interpreting the "Compromis as well as the other Treaties which may be invoked in the case, and in applying the principles of international law.

Art. XLIX.-The Tribunal has the right to issue Rules of Procedure for the conduct of the case, to decide the forms and periods within which each party must conclude its arguments, and to arrange all the formalities required for dealing with the evidence.

In the Venezuela Indemnities case the Court exercised the rights conferred by this article in the form of an exhaustive Regulation in the following terms:

In accordance with Articles II. and IV. of the protocol of May 7, 1903, and Articles XXXIX., XL., XLII., and XLIX. of the Convention of July 29, 1899,

The Court decides :

(1) The parties shall present to the Court, and exchange with each other, in a sufficient number of copies, the printed or written acts and the documents containing the arguments of their case, not later than the 18th of October.

(2) The written or printed replies to these acts and documents can be produced by the parties under the same conditions, up to the 2nd of November, inclusive.

(3) After the expiration of these periods, but before the close of the oral discussion, the parties can present no acts or documents except with the