that it was thought not advisable to adopt it, in the belief that the optional tendency of the article was sufficiently plain from the text.

Mr. Veljkovitch states that the delegation of Serbia recommended to its [63] Government adoption of the text proposed by the committee of examination. That is the text which he is now authorized to accept. Besides, he does not think that the modifications which Mr. BELDIMAN suggests be made in the text are as palliative as they seem to be considered.

From the point of view in which we are placed, says he, it would seem to be evident that the fewer the clauses capable of provoking discussion that are contained in a provision, the more favorable will the provision be to the smaller Powers, which are not in so advantageous a position as the great Powers to make their opinions tell. In so far as Article 9 is concerned, we find that its optional character is sufficiently indicated in the wording proposed by the committee of examination. If new stipulations are introduced therein, we run the risk of smothering the fundamental idea, that is to say, this optional character. In effect, we can foresee that there will be discussions as to whether national honor and vital interests actually are involved. In these discussions the smaller States will find themselves in a position of inferiority as pared with the great Powers. The same is true of the clause "so far as circumstances allow." Here again it is not the small Powers who will have the advantage. Now, these situations of inequality are the very things we wish to avoid as far as possible. In an international convention, where all the contracting parties should be placed on a footing of equality, we must not, by the use of vague clauses, create situations which would be the very negation of the principle recently proclaimed by Count NIGRA, namely, that there are neither great nor small Powers; there are only equal and independent Powers.

We therefore prefer to retain the text of Article 9 in the form proposed by the committee of examination, which excludes, or at least diminishes, the objectionable features I have pointed out.

Mr. Rolin strongly insists that Mr. BELDIMAN's proposal be adopted. He recognizes that the reporter's explanations affirm to a certain extent the optional nature of Article 9; but it is essential, in his opinion, that this optional nature should appear from the text itself, not from the report.

Count de Macedo states that he was disposed to accept the original text of the article, with the two phrases which have been stricken out. Since the formula proposed by Mr. BELDI MAN restores them, the delegation of Portugal is ready to support it in a spirit of compromise.

Mr. Delyanni says that he will vote for Mr. BELDI MAN'S proposal, if it can secure a unanimous vote.

The President puts Article 9 to vote by division.

He asks the Commission to pass, first of all, on the question whether, in its opinion, the two phrases which Mr. BELDI MAN desires restored, should be added to the committee's text. The Commission decides almost unanimously - there being only one negative vote (that of Serbia) and one abstention (that of Turkey) — to restore the two phrases in the form desired by Mr. BELDIMAN. Mr. Veljkovitch: We were invited to attend the meeting of the committee of examination, so that we might know at once the text to be submitted to our Government. We accepted the committee's invitation, we communicated to our Government the text adopted by the committee of examination, with

a favorable recommendation, and our Government hastened to accept the proposed reading. Now the text of the committee of examination is modified by the Commission, and no one has defended this text before the Commission. I desire that it be expressly stated that it is the text of its own committee of examination against which the Commission has voted.

The President confirms the fact that it is indeed the text of the committee of examination against which the vote has been cast.

Mr. Miyatovitch states that he was obliged to vote against the proposal of the delegate of Roumania by virtue of instructions previously transmitted to him. He has no doubt that his Government will permit him to join in the unanimity which has just been manifested.

The President thanks the delegate of Serbia for his declaration and puts Article 9 as a whole to vote in the following definitive form:

In disputes of an international nature involving neither honor nor essential interests, and arising from a difference of opinion on points of fact, the signatory Powers deem it expedient that the parties who have not been able to come to an agreement by means of diplomacy, should, as far as circumstances allow, institute an international commission of inquiry, to facilitate a solution of these disputes by elucidating the facts by means of an impartial and conscientious investigation.

[64] Baron Bildt requests an explanation of the omission of the expression on the spot," which appeared in the original text.

66

Mr. Asser explains that the omission of the words "on the spot" is the necessary consequence of the omission of the passage "which may form the object of local determination," voted at his suggestion by the committee of examination, in order to give the institution a more general scope by extending it to all questions concerning points of fact. This can be done without difficulty when recourse to these commissions is freed from its obligatory character.

The President adds that the committee was of the opinion that the original reading unduly restricted the scope of Article 9 by excluding, for instance, cases of maritime disputes in which it is evident that investigation on the spot would not correspond with reality.

After these explanations Article 9 is adopted without a vote in the form proposed by Mr. BELDIMAN.

The Commission passes to Article 10.

Chevalier Descamps states that the text of this article is brand new. It was adopted by the committee in deference to the desire expressed by his Excellency Mr. EYSCHEN that the conditions under which commissions of inquiry would be called upon to undertake their investigations be determined. It is therefore proposed that Article 10 read as follows:

The international commissions of inquiry are constituted by special agreement between the parties in dispute.

The inquiry convention defines the facts to be examined and the extent of the powers of the commissioners.

It settles the procedure.

At the inquiry both sides must be heard.

The form and the periods to be observed, if not stated in the inquiry convention, are decided by the commission itself.

Chevalier DESCAMPS says that in wording this article, the committee borrowed certain provisions from arbitration procedure. Thus the necessity of

a special convention, as stated in the first paragraph, is similar to the stipulation in Article 30 relative to the arbitration compromis.

The two provisions that follow are also borrowed from arbitration procedure.

The committee wished to state in a formal manner that both sides must be heard in the investigation.

Finally, as regards the form and periods to be observed, it was decided that they should be determined by the convention, but that the commission itself should settle these matters, as is provided in Article 48, in case the convention itself should not settle them.

Article 10 is adopted.

Article 11 is read:

The Powers in dispute undertake to supply the international comutssion of inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to become completely acquainted with and to accurately understand the facts in question.

His Excellency Sir Julian Pauncefote asks why the expression "the interested Powers" has been replaced by "in dispute."

The President replies that it was desired to limit within narrow bounds the scope of the article and to prevent Powers that are strangers to the dispute, although interested in its settlement, from unwarranted intervention in the controversy.

His Excellency Sir Julian Pauncefote states that he is satisfied with this explanation.

Article 11 is adopted.

Article 12 is read:

The international commission of inquiry communicates its report to the interested Powers, signed by all the members of the commission.

Article 12 is adopted.

Article 13 is read:

The report of the international commission of inquiry has in no way the character of an arbitral award. It leaves to the Powers in dispute the option either of concluding a friendly arrangement on the basis of this report or of having recourse subsequently to mediation or arbitration.

Article 13 is adopted.

[65] Section 3, which had been reserved, having thus been adopted, the President proposes that the Commission resume the examination on second reading of the articles on arbitration at the point where it left off.

His Excellency Sir Julian Pauncefote asks that the Commission take up first Article 26, in which he would like to make two slight changes.

In the first place, he would like to have it stated in the second paragraph, near the end, that "Even non-signatory Powers . . . may have recourse to the jurisdiction of the Court within the conditions laid down in the regulations," and not in the Convention, which, as a matter of fact, does not contain any prescription of this kind.

This modification is adopted.

His Excellency Sir JULIAN PAUNCEFOTE proposes, in the second place, that the benefit of paragraph 1 relative to the assistance given by the International

Bureau at The Hague to the functioning of courts of arbitration be extended to commissions of inquiry.

Dr. Zorn would have serious objections to laying down a provision common to commissions of inquiry and courts of arbitration.

His Excellency Sir Julian Pauncefote does not insist upon his proposal. The President recalls that toward the close of the last meeting the discussion of Article 36 had commenced and that Mr. SETH Low had expressed a desire for enlightenment on the incompatibility between the duties of members of the Permanent Court and those of delegates, special agents, counsel, or advocates before that Court.

Chevalier Descamps makes known the result of the study of this question by the committee of examination.

He says that the committee has decided to meet Mr. SETH Low's wishes by inserting the following remark in the report: "No member of the Court may during the exercise of his functions as a member of an arbitral tribunal accept a designation as special agent or advocate before another arbitral tribunal." Mr. DESCAMPS says that this provision was dictated by reasons of propriety which the Commission will appreciate.

Mr. Asser says that he well understands the reasons which have led the committee to impose this incompatibility upon the members of the Court, but he would like to have it stated that the expression "arbitral tribunal" here means any tribunal formed within the Permanent Court of Arbitration.

Mr. Holls presents the following observations, which are translated by Baron D'ESTOURNELLES:

Far from wishing, like Mr. ASSER, to restrict this incompatibility, Mr. HOLLS is, on the contrary, of the opinion that it should be extended still further. He thinks that, if there is a sound reason from the point of view of the independence and authority of the arbitrator for this arbitrator to be subjected in his own country to the incompatibility pointed out by Mr. SETH Low, it is just as important that he should be subject to the same disqualification in all countries that have recourse to arbitration. That is the rule followed in England and in America: once a judge always a judge."

Mr. HOLLS considers that this rule would be perhaps the only safe one to follow. He would like to propose to the Commission, as he did as a matter of fact propose to the committee of examination, that the members of the Court should have the right to accept designations from their own Government or from the Government which may have appointed them, but from no other. It seems to him that the Conference ought not to overstep these bounds, either expressly or by implication. The relations between the judges and the Governments appointing them are, it is true, of a private nature, concern only them, and would probably vary according to circumstances, especially in so far as the question of personal obligations or remuneration is concerned. The question which has just been discussed is of equal interest to all countries, since it is of importance to all that the judges be not only independent but above all suspicion.

It has been contended that, if this principle were to be admitted, the list of arbitrators would be diminished. Mr. HOLLS replies that the rule prohibiting merely temporary plurality of office would be too limited in scope, for it would permit plurality of office in the case of an arbitrator who, having formerly sat in an arbitration court, might reappear as an advocate before his erstwhile col

leagues, with an added authority acquired as the result of his previous functions. Summing up, Mr. HOLLS believes that an arbitrator should never be exposed to the danger of compromising or of diminishing his authority. The prestige of arbitration must therefore be preserved by prescribing an incompatibility which is of interest to all the States.

Chevalier Descamps replies, first to Mr. ASSER, that the committee had in mind only an arbitration tribunal formed within the Court. He asks the delegate of the Netherlands whether he desires to submit a formal proposal, or whether the insertion of the explanation in the report will suffice.

Mr. Asser states that he will be satisfied with the insertion in the report. Chevalier Descamps then replies to Mr. HOLLS that the States remain free to lay down such conditions and to establish such incompatibilities as they deem advisable. They have the right to forbid their arbitrators to accept the [66] functions of advocate in any arbitral tribunal in the world; but it is not for the general Convention to make such a provision.

Mr. Lammasch remarks that, if it were felt that all the States would apply the restriction that Mr. HOLLS asks for, there would be no reason for his proposal, but since there is no certainty on this point, the Commission should take under consideration the suggestion of the delegate of the United States, which attempts to surround the authority and impartiality of the umpire with further guaranties.

Chevalier Descamps observes that it is desired to establish incompatibility with regard to persons who perhaps will never have an opportunity of becoming arbitrators and who would be disqualified by the mere fact of having their names inscribed upon a list. That would be an exorbitant provision, which would stand in the way of recruiting the Court. He therefore believes that it is sufficient to have settled the question with regard to one point, leaving the States free with respect to the rest.

Mr. Holls says that in this matter the question at issue does not involve a Convention, but rather propriety, tact, and good taste. He had no other intention than that of calling forth the opinions of the Conference on the rule to be followed. He thanks the Commission for the explanations which have been presented and he does not ask for a vote.

Sir Julian Pauncefote states that he concurs likewise in the formula submitted by Mr. HOLLS and the reporter.

Article 36 is adopted.
Article 37 is read:

The tribunal decides on the choice of languages to be used by itself, and to be authorized for use before it.

The President says that Article 37 has been modified from its original form to comply with a request of his Excellency Count NIGRA relative to the languages to be employed by the Court itself in its deliberations.

Article 37 is adopted.

Articles 38 to 50 are read and adopted without discussion in the following

form:

ARTICLE 38

As a general rule arbitration procedure comprises two distinct phases: pleadings and oral discussions.