(A. W. R.)
ARBITRATION, INTERNATIONAL. International arbitration is a proceeding in which two nations refer their differences to one or more selected persons, who, after affording to each party an opportunity of being heard, pronounce judgment on the matters at issue. It is understood, unless otherwise expressed, that the judgment shall be in accordance with the law by which civilized nations have agreed to be bound, whenever such law is applicable. Some authorities, notably the eminent Swiss jurist, J. K. Bluntschli, consider that unless this tacit condition is complied with, the award may be set aside. This would, however, be highly inconvenient since international law has never been codified. A fresh arbitration might have to be entered on to decide (1) what the law was, (2) whether it applied to the matter in hand. Arbitration differs from Mediation (q.v.) in so far as it is a judicial act, whereas Mediation involves no decision, but merely advice and suggestions to those who invoke its aid.
Arbitral Tribunals.—An international arbitrator may be the chief of a friendly power, or he may be a private individual. When he is an emperor, a king, or a president of a republic, it is not expected that he will act personally; he may appoint a delegate or delegates to act on his behalf, and avail himself of their labours and views, the ultimate decision being his only in name. In this respect international arbitration differs from civil arbitration, since a private arbitrator cannot delegate his office without express authority. The analogy between the two fails to hold good in another respect also. In civil arbitration, the decision or award may be made a rule of court, after which it becomes enforceable by writ of execution against person or property. An international award cannot be enforced directly; in other words it has no legal sanction behind it. Its obligation rests on the good faith of the parties to the reference, and on the fact that, with the help of a world-wide press, public opinion can always be brought to bear on any state that seeks to evade its moral duty. The obligation of an ordinary treaty rests on precisely the same foundations. Where there are two or any other even number of arbitrators, provision is usually made for an umpire (French sur-arbitre). The umpire may be chosen by the arbitrators themselves or nominated by a neutral power. In the “Alabama” arbitration five arbitrators were nominated by the president of the United States, the queen of England, the king of Italy, the president of the Swiss Confederation, and the emperor of Brazil respectively. In the Bering Sea arbitration there were seven arbitrators, two nominated by Great Britain, two by the United States, and the remaining three by the president of the French Republic, the king of Italy, and the king of Sweden and Norway respectively. In neither of these cases was there an umpire; nor was any necessary, since the decision, if not unanimous, lay with the majority. (See separate articles on Bering Sea Arbitration and "Alabama" Arbitration.)
Arbitral tribunals may have to deal with questions either of law or fact, or of both combined. When they have to deal with law only, that is to say, to lay down a principle or decide a question of liability, their functions are judicial or quasi-judicial, and the result is arbitration proper. Where they have to deal with facts only, e.g. the evaluation of pecuniary claims, their functions are administrative rather than judicial, and the term commission is applied to them. “Mixed commissions,” so called because they are composed of representatives of the parties in difference, have been frequently resorted to for delimitation of frontiers, and for settling the indemnities to be paid to the subjects of neutral powers in respect of losses sustained by non-combatants in times of war or civil insurrection. The two earliest of these were nominated in 1794 under the treaty negotiated by Lord Grenville with Mr John Jay, commonly called the “Jay Treaty,” their tasks being (1) to define the boundary between Canada and the United States which had been agreed to by the treaty signed at Paris in 1783; (2) to estimate the amount to be paid by Great Britain and the United States to each other in respect of illegal captures or condemnation of vessels during the war of the American Revolution.
Although arbitrations proper may be thus distinguished from “mixed commissions,” it must not be supposed that any hard or fast theoretical line can be drawn between them. Arbitrators strictly so called may (as in the “Alabama” case) proceed to award damages after they have decided the question of liability; whilst “mixed commissions,” before awarding damages, usually have to decide whether the pecuniary claims made are or are not well founded.
Awards.—International awards, as already pointed out, differ from civil awards in having no legal sanction by which they can be enforced. On the other hand, they resemble civil awards in that they may be set aside, i.e. ignored, for sufficient reason, as, for example, if the tribunal has not acted in good faith, or has not given to each party an opportunity of being heard, or has exceeded its jurisdiction. An instance under the last head occurred in 1831, when it was referred to the king of the Netherlands as sole arbitrator to fix the north-eastern boundary of the state of Maine. The king’s representatives