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ARBITRATION, INTERNATIONAL


so long as France chose to renew it, but that after that date such authorization was improper unless the guarantees could establish that they had been treated by France as her protégés within the meaning of that term as explained in a treaty of 1863 between France and Morocco. A further point decided was that the owners or master of dhows duly authorized to fly the French flag within the ruling of the first point, did not enjoy, in consequence of that fact, any such right of extra-territoriality as would exempt them from the sovereignty and jurisdiction of the sultan. Such exemption would be contrary to the engagement to respect the independence of the sultan solemnly made in 1862.

Arbitral Procedure.—Not the least of the benefits of the Hague convention of 1899 (strengthened by that of 1907) is that it contains rules of procedure which furnish a guide for all arbitrations whether conducted before the Hague court or not. These may be summarized as follows:—The initial step is the making by the parties of a special agreement clearly defining the subject of the dispute. The next is the choice of the arbitrators and of an umpire if the number of arbitrators is even. Each party then by its agents prepares and presents its case in a narrative or argumentative form, annexing thereto all relevant documents. The cases so presented are interchanged by transmission to the opposite party. The hearing consists in the discussion of the matters contained in the several cases, and is conducted under the direction of the president who is either the umpire, or, if there is no umpire, one of the arbitrators. The members of the tribunal have the right of putting questions to the counsel and agents of the parties and to demand from them explanation of doubtful points. The arbitral judgment is read out at a public sitting of the tribunal, the counsel and agents having been duly summoned to hear it. Any application for a revision of the award must be based on the discovery of new evidence of such a nature as to exercise a decisive influence on the judgment and unknown up to the time when the hearing was closed, both to the tribunal itself and to the party asking for the revision. These general rules are universally applicable, but each case may require that special rules should be added to them. These each tribunal must make for itself.

One special and necessary rule is in regard to the language to be employed. This rule must vary according to convenience and is therefore made ad hoc. In case No. 1 noted above, the court allowed English or French to be spoken according to the nationality of the counsel engaged. The judgment was delivered in French only. In case No. 2 it was agreed that the written and printed memoranda should be in English but might be accompanied by a translation into the language of the power on whose behalf they were put in. The oral discussion was either in English or French as happened to be convenient. The judgment was drawn up in both languages. In case No. 3 French was the official language throughout, but the parties were allowed to make any communication to the tribunal, in French, English, German or Japanese. In case No. 4 French was again the official language, but the counsel and agents of both parties were allowed to address the tribunal in English. The protocols and the judgment were drawn up in French accompanied by an official English translation.

Limits of International Arbitration.—Of the numerous treaties for general arbitration which have been made during the 20th century that between Great Britain and France (1903) is a type. This treaty contains reservations of all questions involving the vital interests, the independence or the honour of the contracting parties. The language of the reservation is open to more interpretations than one. What, for instance, is meant by the phrase “national independence” in this connexion? If it be taken in its strict acceptation of autonomous state sovereignty, the exception is somewhat of a truism. No self-respecting power would, of course, consent to submit to arbitration a question of life or death. This would be as if two men were to agree to draw lots as to which should commit suicide in order to avoid fighting a duel. On the other hand, if the exception be taken to exclude all questions which, when decided adversely to a state, impose a restraint on its freedom of action, then the exception would seem to exclude such a question as the true interpretation of an ambiguous treaty, a subject with which experience shows international arbitration is well fitted to deal. Again, we may ask, what is meant by the phrase “national honour”? It was thought at one time that the honour of a nation could only be vindicated by war, though all that had happened was the slighting of its flag, or of its accredited representative, during some sudden ebullition of local feeling. France once nearly broke off peaceful relations with Spain because her ambassador at London was assigned a place below the Spanish ambassador, and on another occasion she despatched troops into Italy because her ambassador at Rome had been insulted by the friends and partisans of the pope. The truth is that the extent to which national honour is involved depends on factors which have nothing to do with the immediate subject of complaint. So long as general good feeling subsists between two nations, neither will easily take offence at any discourteous act of the other. But when a deep-seated antagonism is concealed beneath an unruffled surface, the most trivial incident will bring it to the light of day. “Outraged national honour” is a highly elastic phrase. It may serve as a pretext for a serious quarrel whether the alleged “outrage” be great or small.

The prospects of the expansion of international arbitration will be more clearly perceived if we classify afresh all state differences under two heads:—(1) those which have a legal character, (2) those which have a political character. Under “legal differences” may be ranged such as are capable of being decided, when once the facts are ascertained, by settled, recognized rules, or by rules not settled nor recognized, but (as in the “Alabama” case) taken so to be for the purpose in hand. Boundary cases and cases of indemnity for losses sustained by non-combatants in time of war, of which several instances have already been mentioned, belong to this class. To the same class belong those cases in which the arbitrators have to adapt the provisions of an old treaty to new and altered circumstances, somewhat in the way in which English courts of justice apply the doctrine of “cy-près.” “Political differences” on the other hand, are such as affect states in their external relations, or in relation to their subjects or dependants who may be in revolt against them. Some of these differences may be slight, while others may be vital, or (which amounts to the same thing) may seem to the parties to be so. All differences falling under the first of these two general heads appear to be suitable for international arbitration. Differences falling under the second general head are, for the most part, unsuitable, and may only be adjusted (if at all) through the mediation of a friendly power.

The interesting problem of the future is—are we to regard this classification as fixed or as merely transitory? The answer depends on several considerations which can only be glanced at here. It may be that, just as the usages of civilized nations have slowly crystallized into international law, so there may come a time when the political principles that govern states in relation to each other will be so clearly defined and so generally accepted as to acquire something of a legal or quasi-legal character. If they do, they will pass the line which at present separates arbitrable from non-arbitrable matter. This is the juridical aspect of the problem. But there is also an economic side to it by reason of the conditions of modern warfare. Already the nations are groaning under the burdens of militarism, and are for ever diverting energies that might be employed in the furtherance of useful productive work to purposes of an opposite character. The interruption of maritime intercourse, the stagnation of industry and trade, the rise in the price of the necessaries of life, the impossibility of adequately providing for the families of those—call them reservists, “landwehr,” or what you will—who are torn away from their daily toil to serve in the tented field,—these are considerations that may well make us pause before we abandon a peaceful solution and appeal to brute force. Lastly, there is the moral aspect of the problem. In order that international arbitration may do its perfect work, it is not enough to set up a standing tribunal, whether at the Hague or elsewhere, and to equip it with elaborate rules of procedure. Tribunals and rules are, after all, only machinery. If this machinery is to act smoothly we must improve our motive power, the source of