Chapter V

practice in certain cases.

practice before it was raised by Mr. Low of the Judges not to American Delegation, and was referred by the Third Committee to the Comité d'Examen for consideration and report. This Committee unanimously agreed to recommend that no member of a particular bench should be permitted, during the exercise of such function, to appear before another bench, on another case, in the capacity of counsel. The English rule of "once a judge always a judge," suggested by Lord Pauncefote, seemed to the Committee to be too drastic. Mr. Holls of the United States suggested that the rule be made so as to prohibit a member of the Court from appearing as counsel for any country except the country of which he was a citizen or by which he was appointed. This view received the weighty indorsement of Professor Lammasch of Austria, but the Committee finally decided upon having it merely spread upon the record in the procès verbal, and permitting the question as a whole to remain in comparative uncertainty, trusting that the good sense and propriety of the members of the Court, as well as of its bar, would finally evolve a rule without inconvenience, and with sufficient safeguards for the unsullied reputation of the bench for disinterestedness and impartiality.

Language.

Two phases of

ARTICLE 38. The Tribunal shall decide upon the choice of languages used by itself, or to be authorized for use before it.

ARTICLE 39. As a general rule the arbitral procedprocedure. ure shall comprise two distinct phases - preliminary

examination and discussion. Preliminary examina-Chapter V tion shall consist 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 to be invoked in the case. This communication shall be made in the form and within the period fixed by the Tribunal, in accordance with Article 49. The discussion shall consist in the oral argument before the Tribunal. The discussion shall consist in the oral development before the Tribunal of the argument of the parties.

This Article in effect provides for a procedure similar to that now in existence before ordinary American or English appellate tribunals. The documents in the case or the so-called "printed case on appeal" is filed with the Court, and served on the opposite side within the time limit set by the rules, and at the proper day the oral argument is heard by the Court.

ARTICLE 40. Every document produced by one Communicaparty must be communicated to the other party.

tion of

documents.

court.

ARTICLE 41. The discussions shall be under the The proceeddirection of the president. They shall be public ings in open only in case it shall be so decided by the Tribunal, with the assent of the parties. They shall be recorded in the official minutes drawn up by the secretaries appointed by the president. These official minutes alone shall have an authentic character.

There can be no doubt that publicity will be the rule, with reference to the proceedings of the international Court of Arbitration. At the same time,

Chapter V

Rules of

practice.

Powers of

exceptional cases may occur where privacy, at least for a limited period, may be of importance.

ARTICLE 42. When the preliminary examination is concluded, the Tribunal may refuse admission of all new acts or documents, which one party may desire to submit to it, without the consent of the other party.

ARTICLE 43. The Tribunal may take into considerathe Tribunal. tion such new acts or documents to which its attention may be drawn by the agents or counsel of the parties. In this case the Tribunal shall have the right to require the production of these acts or documents, but it is obliged to make them known to the opposite party.

Oral argu

ments.

ARTICLE 44. The Tribunal may also require from the agents of the party the production of all papers, and may demand all necessary explanations. In case of refusal the Tribunal shall take note of the fact.

In these three Articles the Tribunal is invested with that complete control of pleadings, practice, and procedure which now appertains to all equity courts.

No technical points or pitfalls are permitted to exist to entrap an unwary practitioner. It will not be possible to defeat a just claim or an equitable defence otherwise than by a decision squarely upon the merits of the case.

ARTICLE 45. The agents and counsel of the parties are authorized to present orally to the Tribunal all the arguments which they may think expedient in support of their cause.

ARTICLE 46. They shall have the right to raise Chapter V objections and to make incidental motions. The de-Objections cisions of the Tribunal on these points shall be final, and motions. and shall not form the subject of any subsequent

discussion.

ARTICLE 47. The members of the Tribunal shall Questions and have the right to put questions to the agents or explanations. 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 discussion or argument shall be regarded as an expression of opinion by the Tribunal in general, or by its members in particular.

determine its

ARTICLE 48. The Tribunal is authorized to deter- Tribunal to mine its own jurisdiction, by interpreting the agree- own jurisdicment of arbitration or other treaties which may be tion. quoted in point, and by the application of the principles of international law.

The powers herein conferred are necessary for the proper working of arbitration, but it must be admitted that they are liable to abuse. The penalty for any undue enlargement of the jurisdiction of the Tribunal must of course be found in the refusal of both litigants to abide by the decision, as was done in 1841 in the case of Great Britain and the United States, when the king of Holland, who had been appointed arbitrator for the northeastern boundary, exceeded his powers in drawing a boundary line which satisfied neither party. With tribunals as sensitive to their own reputations as those of the permanent

11 Moore, Arbitration, p. 137.

Chapter V

Special rules

Court are likely to be, a recurrence of similar experiences is hardly within the limits of probability.1

When France and the Netherlands, by the treaty of November 29, 1888, agreed to submit the question of the true boundary between their respective colonies of French Guiana and Surinam to the arbitration of the Emperor of Russia, the latter (Alexander III.) declined to act if he was required to adopt, without modification, the boundary line proposed by one party or the other. Accordingly, by the agreement of August 28, 1890, the litigating Powers expressly conferred upon the arbitrator the right to fix the boundary according to his own decisions upon the equities of the case.

ARTICLE 49. The Tribunal shall have the right to of procedure. make rules of procedure for the direction of the trial to determine the form and the periods in which parties must conclude the argument, and to prescribe all the formalities regulating the admission of evidence.

End of the hearing.

Deliberations

with closed doors.

ARTICLE 50. The agents and the counsel of the parties having presented all the arguments and evidence in support of their case, the President shall declare the hearing closed.

ARTICLE 51. The deliberations of the Tribunal shall take place with closed doors. Every decision shall be made by a majority of the members of the

1 Geffcken (Heffter, § 109, note 5) denies the right of a Tribunal of Arbitration to determine its own jurisdiction, but without reason. Calvo (§ 1757) distinctly affirms it, and The Hague treaty wisely settles the question, probably forever.