Chapter V Reply of M. de Martens. begin an unsuccessful arbitral litigation over again. M. Descamps, therefore, thought it was dangerous and difficult to introduce a provision like Article 55 into a general code of arbitral procedure. He hoped that even the form which was proposed by M. Asser would not be admitted, for he was formally opposed to the principle. At the same time, for the sake of making a unanimous decision, he would join in supporting the proposition of M. Asser in a spirit of conciliation. M. de Martens wished to ask some questions. What would be the position of the arbitrators during the delay of suspension of three or six months? If the Government which had not gained its cause was impelled and forced by public opinion to try to find a new fact in order to begin the procedure over again, where would it find arbitrators? The members of the arbitral tribunal will be dispersed; they may be absent, ill, or dead. What should be done then? It was necessary to distinguish clearly two points of view. From the point of view of the lawyer it was not doubtful that one ought to provide for a rehearing and even an appeal. But from the point of view of the practical man, it is the love of peace which is the most important. In order to save that, it was necessary to cut short all controversies by a radical means. The pacification of the two litigating peoples was a result so important, in the eyes of the lover of peace, that he would not wish to risk compromising or impairing it in order to protect some material interest, which might possibly be injured. This last point of view seemed to him the most Chapter V necessary and the most important, and therefore he asked that the Committee should pronounce against Article 55. Low. Mr. Seth Low spoke as follows: "In the organiza-Speech of Mr. tion of ordinary justice in almost all the countries. represented here, if not in all, a recourse for the purpose of rectifying errors has been provided. This precaution has been taken because experience has shown that such recourse, or rehearing, or revision increase the chances of doing substantial justice between men. I know that our international arbitration is not like the questions of ordinary justice. It does imply, as M. de Martens has said, the idea of ending international controversies in the interest of peace, even if the solution may be imperfect. But the necessities of excepting in such a large measure this imperfection is precisely the weakness, and not the strength of arbitration. I recognize, as some one has said, that all arbitration which has occurred up to this time has been in virtue of an agreement that has not foreseen or provided for a rehearing. But, on the other hand, the Conference will remember that in the only two treaties which contain a clause for permanent arbitration the Italian-Argentine Treaty, to which reference has already been made, and the Anglo-American Treaty, which was not ratified a provision was inserted for the purpose of permitting a rehearing under certain determined conditions. This signifies, as I suppose, that a system of permanent arbitration as distinct from special Chapter V Remarks of Adoption of arbitration in isolated cases, necessarily implies the idea of making justice just as perfect as possible, and that this idea should be balanced with the desire of terminating the controversy. I have confidence and hope that this Conference will receive and adopt the idea of a rehearing with the necessary precaution, for it is certain that arbitral procedure should admit the possibility of error, if the great number of judg ments of arbitration are to develop in the future into one grand system of international justice." M. Asser recalled the words of one of the preceding speakers, to wit: radical measures are the best. This, he said, might be in a parliament where the majority made the law, but in an assembly like this, which might be called an international parliament of man, it was necessary to endeavor to find a point of accommodation. This was the end and object of his proposition. He had taken account of the reasons which had been advanced on both sides. The friends of a rehearing would have the satisfaction of seeing an article which determined the procedure of a rehearing, and which recognized it as a practical method, and recommended it to all States. The opponents of rehearing would also be satisfied by the exclusion of the provision unless there is a special agreement in the arbitration agreement on the subject. If the latter contains nothing on the subject, then the arbitral judgment and award will be irrevocable. M. Asser's proposition was then adopted unanithe proposi- mously, both the United States and Russia acquiescing most cordially. tion. of the debates. This debate has been inserted here not only on Chapter V account of the light which it throws upon the Article, but also as a very fair sample of the kind of debate An example which took place throughout the entire Conference, in the Committee. Most unfortunately, and yet for obvious reasons, a full stenographic report was absolutely impossible. It must be admitted that the decision of the Conference in adopting the Article as it stands was the wisest possible solution of a question which, as the debate showed, was by no means free from difficulties. in the litiga ARTICLE 56. The award shall be obligatory only Joinder of upon the parties who have concluded the arbitration other Powers agreement. When there is a question of the inter- tion. pretation of an agreement entered into by other Powers besides the parties in litigation, the parties to the dispute shall notify the other Powers which have signed the agreement, of the special agreement which they have concluded. Each one of these Powers shall have the right to take part in the proceedings. If one or more among them avail themselves of this permission, the interpretation in the judgment becomes obligatory upon them also. ARTICLE 57. Each party shall bear its own ex- Expenses. penses and an equal part of the expenses of the tribunal. The term "expenses of the tribunal" is here. understood to include the pay of the arbitrators themselves. There are other expenses which can only be determined in each case by the tribunal itself. In others again the administrative council at Chapter V Ratification. Adherence by Adherence by The Hague may adopt, if necessary, a tariff and all parties will be bound thereby. ARTICLE 58. The present convention shall be ratified with as little delay as possible. The ratifications shall be deposited at The Hague. An official report of each ratification shall be made, a certified copy of which shall be sent through diplomatic channels to all the Powers re resented in the Peace Conference at The Hague. ARTICLE 59. The Powers which were represented at the International Peace Conference but which have not signed this convention may become parties to it. For this purpose they will make known to the Contracting Powers their adherence by means of a written notification addressed to all the other Contracting Powers. ARTICLE 60. The conditions under which Powers other Powers. not represented in the International Peace Conference may become adherents to the present convention shall be determined hereafter by agreement between the Contracting Powers. Withdrawal. This Article gave rise to serious and at times spirited debate in the Committee on the Final Act, to which reference will be made hereafter. As the Article stands, the unanimous assent of all the signatory Powers is necessary, either to the adhesion of any non-signatory Power or to the making of an agreement regarding all non-signatory Powers and their future adherence. ARTICLE 61. If one of the High Contracting Parties shall give notice of a determination to withdraw |