Arbitral Procedure

Arbitral Procedure

History: International 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.


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