commission. The warm and long debate ended, as is almost inevitable in an international as opposed to a parliamentary assembly, in a compromise between the two extremes. The principle of revision was adopted, but not as a general rule, and only under the well-defined exceptional circumstances stated above.

The last two articles in the code of arbitral procedure provided for the scope of the award and the expenses of the arbitration, and gave rise to but little comment. The award is obligatory only upon the parties who have concluded the arbitration agreement. When there is a question of the interpretation of a treaty participated in by other powers besides the parties in litigation, the parties shall notify these other powers of the arbitration agreement which they have concluded. Each of these powers has the right to take part in the arbitration; and if one or more of them exercises this right, the interpretation of the treaty contained in the award shall be equally obligatory upon them also.

Each party shall bear its own expenses and an equal share of the expenses of the tribunal.

b. The Conference of 1907

The code of arbitral procedure adopted in 1899 was referred to a special committee of examination in 1907. Its twenty-eight articles were increased to forty-one, and a few of these additions were of considerable importance, but only a few changes were made in the original

ones.

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It was provided that the arbitration agreement, or compromise, shall define not only the question in litigation

and the powers of the arbitrators, but also the date before which the arbitrators shall be appointed; the form, order, and time of the preliminary examination and discussion; the sum of money to be deposited in advance by each party for the expenses of the arbitration; the method of appointing the arbitrators; and the place of meeting and language of the tribunal.] This extended rule in regard to the compromise was proposed by Dr. Kriege, of Germany, in order, as he said, to prevent delay and uncertainty in regard to the tribunal. But the danger lest a fulfillment of all these conditions by the parties in dispute might have the reverse of the desired result, caused the adoption of the further provision that the Permanent Court may establish the compromise if the parties agree to refer it to it. The German delegation proposed also a commission of five members (to be chosen from the Permanent Court, in the same manner as was provided for the choice of arbitrators) to establish the compromise when the parties so agree; and this proposition, too, was adopted after a long debate and considerable opposition. It was agreed that when a commission to establish the compromise is resorted to, it shall itself constitute the arbitration tribunal, unless otherwise stipulated by the parties.

The Austrian delegation, seconded by the delegation from China, renewed the proposition of Mr. Holls in 1899 to prevent members of the Permanent Court from being appointed to serve on an arbitration tribunal by their own governments, or the governments which appointed them members of the court, when the tribunal is composed of only three members; and when the tribunal is composed of five members, to permit one of them to be the citizen or appointee on the court of each of the parties.

This rule was adopted, but in the form already adopted for the formation of the tribunal.1

1

The Russian delegation proposed that the tribunal should always choose its own president, even when a sur-arbiter is one of its members; and Professor de Martens advocated this proposition for the reason that experience since 1899 has shown that a sur-arbiter may possess all the qualities valuable for casting a deciding vote on judicial questions, but may at the same time have no noteworthy qualifications of a presiding officer. But this proposition was rejected for the reasons, stated by Professor Lammasch, of Austria, that if the sur-arbiter is not given the presidency ex officio, it might be regarded as a certain lack of confidence in him; that the arbitrators may often be unknown to each other, and hence can not make a good choice; and that in the choice of a presiding officer, the tribunal might indicate a preference for his country and his cause.

The Russian delegation proposed the rule, advocated by the American delegation in 1899, that members of the Permanent Court should not be permitted to plead before the tribunal in the capacity of counsel or advocate, or to act as agents before it. The American, British, and Austrian delegations warmly supported this proposition; but it was still considered too drastic, and the conference adopted the more moderate German proposal that members of the Permanent Court may perform such services only for the power which has appointed them to the court. It was believed that this rule will not only enable each party to the dispute to be represented on the tribunal, and to utilize its best men as both arbitrators and advocates,

1 See page 384.

but will also protect the good name of a judge from the suspicion of partiality which would attach to it in consequence of undue practice as a counselor or advocate before arbitration tribunals.

A rule of 1899 prescribed that the arbitration tribunal. shall determine the period within which the parties must present their case in writing (the "preliminary examination" or instruction). Dr. Kriege, of Germany, moved to amend this rule so as to have this period determined in the compromise. The amendment was adopted for the reason that, as shown in the California Pious Funds case, the old rule required long and expensive journeys on the part of the arbitrators solely for the purpose of determining this preliminary point of procedure. It was also provided, however, on the motion of Sir Edward Fry, of Great Britain, that the period fixed by the compromise may be prolonged by common consent of the parties, or by the tribunal when the latter deems a longer time necessary for arriving at a just decision.

The German delegation proposed also the rule that the tribunal shall not meet until after the close of the instruction. But M. Fromageot, of France, showed by reference to the Behring Fisheries case that a question of procedure may suddenly assume capital importance and require the tribunal's decision before further progress can be made; also that the instruction may require the hearing of certain witnesses, the formation of a commission of inquiry, and the like. It was accordingly decided to adopt the rule that, except under special circumstances, the tribunal will not meet until after the close of the instruction.

The parties agree to furnish the tribunal, to the largest

extent they judge possible, the means necessary to decide the dispute; and when it becomes necessary for the tribunal to make investigations on the territory of a third power, it must conform to the rule adopted for International Commissions of Inquiry.1

To the rule that the deliberations of the tribunal shall take place behind closed doors were added the words "and shall remain secret.'

Dr. Kriege, of Germany, endeavored to secure a provision that when an arbitral decision requires execution, the tribunal shall determine the period within which its execution shall occur. But Sir Edward Fry and Mr. Crowe, of Great Britain, strongly opposed this rule, and it was rejected on the ground that the tribunal has no power to enforce its sentences, and since their execution depends solely on the good faith of the parties, all appearance of coercion should be carefully avoided.

The rule of 1899, which required the minority members of the tribunal to sign the award, but permitted them, in signing, to state their dissent to it, was vigorously attacked by M. Loeff, of the Netherlands. He asserted that it was in flagrant opposition to one of the great fundamental principles of arbitral procedure, the principle, namely, which requires that the award shall be final, not only in the sense that it may not be appealed to another court, but also in the other sense that it should end all further discussion, especially outside of the tribunal's chamber. "We all know," he said, "the saying, 'Rome has spoken, the thing is finished'; it seems to me of the last importance that this same saying should be applied to an arbitral award and that it might be truly said, ‘The

1 See page 295.