tribunal has spoken, the affair is ended.'" Professor de Martens said in reply that it was an old established custom in arbitral awards to permit the minority members, who may be placed in the minority solely by the deciding vote of the sur-arbiter, to state their dissent to the majority award; but that he admitted the force of M. Loeff's argument, and was quite willing to have the matter considered by the committee of examination. As a result of this consideration, it was decided that the arbitral award shall mention the names of the arbitrators, but that it shall be signed only by the president and clerk of the tribunal. The former statement that the award shall be made by a majority vote is not retained, although it is, of course, implied; but the former provision, that a statement of the reasons upon which the award is based shall accompany the award, is retained in the new rule.

The finality of the award, in the sense of the inadmissibility of an appeal to another court, was reasserted; but, on the motion of the Italian delegation, it was provided that any difference which may arise between the parties concerning the interpretation or execution of the award shall be submitted, unless otherwise stipulated, to the decision of the tribunal which rendered it.

No change was made in the much-debated rule of 1899 concerning the revision of the arbitral award. Professor de Martens moved the suppression of the rule as being opposed to the essence of arbitration; he recalled the debate of 1899, and said that he had continued a firm opponent of revision ever since, that the Arbitration Tribunal of 1902 had joined unanimously in the expression of a desire to abolish the privilege of resorting to it, and that not one of the four arbitral awards rendered by the

Hague tribunals had given rise to a demand for revision. Ambassador Choate, of the United States, and the representatives of Belgium, Brazil, Germany, the Netherlands, Persia, and Roumania all opposed Professor de Martens's motion and replied to his arguments in very much the same way that the debaters of 1899 had done, with the additional reason that, since the rule as adopted represented an accepted compromise between very pronounced opinions, it would be best not to alter it in any

way.

The code of 1899 having been discussed and amended, the French delegation proposed a series of additional rules which should regulate what it called "the summary procedure of arbitration." Professor Renault, in presenting the proposed rules, said that they were designed to be applied to the most frequent cases of arbitration — technical questions and those of secondary importance — which demand prompt solution. "We believe," he said, "that it is possible in such cases to apply the arbitral procedure adopted in 1899 in a simpler and more practical form, and our plan is inspired by the arbitral agreements already included in several treaties, notably in those between Switzerland and Germany, France, and Italy. The fundamental idea of our plan is the simplification of the arbitral tribunal's organization and its specialization." Baron von Bieberstein, of Germany, cordially indorsed the French propositions as well calculated to simplify arbitral procedure and to facilitate its use.

The five rules based upon the French propositions caused but very little discussion, and were unanimously adopted. They are prefaced by the statement that, with the object of facilitating the operation of arbitral justice

in controversies adaptable to summary procedure, the contracting powers have adopted the following rules, which will be observed in the absence of other stipulations and in subordination to the application of the foregoing rules.

Each of the parties to the dispute shall name an arbitrator. The French plan proposed that these should be chosen from among the citizens of the parties at variance, but on the motion of Sir Edward Fry this limitation was stricken out. The two arbitrators thus appointed shall elect a sur-arbiter. If they can not agree upon a surarbiter, each one shall present two candidates from the list of members of the Permanent Court, other than the appointees or citizens of the parties in dispute; the surarbiter shall then be selected by lot from the candidates. The sur-arbiter shall preside over the tribunal, which will render its decision by a majority vote. In default of previous arrangement the tribunal shall determine, as soon as it is formed, the period within which the two parties shall submit to it their respective memorials. Each party shall be represented before the tribunal by an agent to serve as an intermediary between the tribunal and the government which has appointed him.

The arbitral procedure shall comprise an examination of documents only; but each party shall have the right to demand the hearing of witnesses and experts, and the tribunal shall have the privilege of demanding oral explanations from the agents of the parties, as well as from the experts and witnesses whom it shall deem desirable to

summon.

3. THE COURT OF ARBITRAL JUSTICE

The Conference of 1907

The proposition of the United States of America for the establishment of a court of arbitral justice was subjected to a preliminary discussion in four sessions of the first subcommission of the I Commission, to a detailed examination in eight meetings of a subcommittee (Committee B), to a final discussion in three sessions of the I Commission, and to a vote in the ninth plenary session of the conference itself.

Both the Russian and the United States delegations presented plans, in the early part of the conference, for the establishment of such a court; but the American plan was taken as the basis of the discussion. This plan was presented, the delegation stated, with the object of facilitating an immediate recourse to the judicial decision of international differences which diplomatic means have been unable to settle; and the proposed court was designed to be a permanent one, accessible at all times, and conforming, unless otherwise stipulated, to the rules of procedure adopted by the two conferences.

The eminent jurisconsult of the Netherlands, M. Asser, opened the preliminary discussion of the subject by a speech in the course of which he praised highly the Permanent Court of 1899 as being the pioneer stage in the progress of international justice, but pointed out its inadequacy for changed conditions and larger demands.

“Instead of a permanent court,” M. Asser said, “the Convention of 1899 gave only the phantom of a court, an impalpable specter or, to speak more precisely, it gave a secretariat and a list. And when

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two powers, having a difference to settle, . . . demand that the doors of the court at The Hague be opened to them, the Secretary-General, thanks to the munificence of Mr. Carnegie, can show them a splendid hall, but instead of a court he can only present to them a list on which they may find a large number of names of persons 'of a recognized competence, etc.' . . . You remember, gentlemen, how a great monarch,—who was not only a famous general but a philosopher as well, trained in the French school of the Eighteenth Century, the point of committing an injustice, was struck by the exclamation of a simple miller, who reminded him that 'There are judges at Berlin!'; and how, 'Charmed that beneath his sway justice was believed in,' he submitted to the simple miller's suit. Then, gentlemen, when some day a tribunal truly permanent shall sit here . . . it will not be without practical result that the nations shall invoke the famous article inspired by France — the article of Duty 1 and shall say to a state on the point of committing an injustice, ‘There are judges at The Hague!""

1

...

Baron von Bieberstein, of Germany, in his memorable address on arbitration, followed M. Asser's indorsement of the proposed court by saying:

"The ideal of arbitration between nations will undoubtedly be advanced if we can succeed in improving and simplifying the procedure established by the Convention of 1899 for resort to the tribunal of The Hague. But the most important reform would be that which is indicated by the propositions of the United States of America and Russia, and which would consist in giving to the tribunal of The Hague the character of a really permanent tribunal. We indorse completely the praise which has been accorded to the work of the Hague tribunal; but we can not shut our eyes to its defects. I do not desire to criticise it, but quite the contrary. It is the great merit of the first conference to have pointed out the road for us to follow. A veritable permanent court, composed of judges who by their character and competence will enjoy universal confidence, will exert an attraction, automatic, so to speak, on judicial differences of every kind. And such an institution will secure for arbitration a more frequent

1 Article 27; see page 304.