[…] risks and conflicts of interest can be overcome by rules of conduct adequate to the challenges of life if a conscious effort is made to foresee and counter the problems likely to emmerge.

Until recently, the Permanent Court of Arbitration has been an institution that one reads about, if at all, principally in the background sections of international law casebooks. This article suggests, and indeed this issue of the Leiden Journal of International Law confirms, that the level of scholarly attention to the Court is changing due to recent developments in the work of the PCA. The purpose of this article is to report and reflect on an emerging effort in the international community to restore the PCA to a prominent place in international arbitration. This article describes the impetus for this effort and the actions taken to reestablish the PCA, as well as the challenges that lie ahead in that effort.

The Hague Peace Conference of 1899 was attended by 27 states, the Conference of 1907 by 43, the overwhelming majority being from Europe and America. Among the participants were four from Asia: China, Japan, Persia and Siam. Their delegates, trained in the best European legal and diplomatic traditions, were assisted by European experts in explaining their positions on ‘projects’ (or drafts) of European or American origin.

The Secretary-General of the United Nations, Dr. Boutros Boutros-Ghali, in his perceptive Introduction to this second Special Issue of the Leiden Journal of International Law notes that the occasion of this publication provides an opportunity for “reflections on international dispute settlement”. I respond to this opportunity by offering ten personal reflections based on experiences gained from participating for some years in the arbitral process as a lawyer, as a co-draftsman of a number of arbitration rules and laws, and, for the last decade, as an arbitrator on an international tribunal.

The institutionalization of international conflict-resolution on a third-party basis, with the creation of a Permanent Court of Arbitration, was one of the high hopes of the political leaders at the First Hague Peace Conference in 1899. In the early phase, from creation of the Court in 1902 until the outbreak of World War I in 1914, 17 cases were initiated before the Court. There was a quite understandable gap, through the War years, until 1921; and then, in the decade until 1931,7 further cases were brought before the Court. This was followed by another awkward hiatus as to cases throughout the 1930s, apparently because of the renewed international tensions in Europe that culminated in World War II. There were no cases before the Court during the War years, the seat of the Court being under belligerent occupation for most of that time. The fact remains, however, that since World War II and, indeed, since 1931, there have been only two cases (both minor ones) brought before the Court, (or three, if we accept the Court Registry's retroactive classification, in its 1990 Annual Report, of the continuing Iran-US Claims Tribunal, which had begun its work in 1981, as one of its own cases).

As early as 1952 I launched the idea of enhancing the use of the PCA by making its arbitration facilities accessible for arbitration between states and private parties. A few years later I was requested by the Secretary-General, at that time, Prof. Francois, to draw up draft arbitration rules for this purpose. These rules, as elaborated by the International Bureau of the PCA, became the 1962 Rules of Arbitration and Conciliation for Settlement of International Disputes between Two Parties of Which Only One is a State, hereafter referred to as the 1962 Rules.

The purpose of this article is to examine the attitude of the International Court of Justice toward questions concerning different aspects of the international arbitration process. This relates in particular to disputes over the obligation to submit an alleged dispute to arbitration, disputes over the validity or nullity of an award rendered in an international arbitration process, and appeals to the International Court from other bodies with a power of dispositive decision. These questions have arisen in many different circumstances. The matter is also important having regard to the presence of compromissory clauses in international treaties conferring jurisdiction on the International Court itself, but only after it is clear that a process of arbitration, as the preferred method of dispute settlement, is not going to be successful in the concrete case.

Much has been written on the similarities and differences between arbitration tribunals and international courts; much more could and will certainly be written in the future. The purpose of my comments is to define similarities and differences in regard to the role of equity in both. However, I hope to enter the caveat at the very outset that in this paper I will focus solely on the role of equity in cases where the decision is to be based on international law. Accordingly, I will not here discuss cases of the type I had in mind when I pointed out in a speech delivered 34 years ago to the Legal Committee of the UN General Assembly that “[t]he arbitral solution has been applied in the past to a variety of problems, some of which were not judicial in character and did not raise issues of law”. Nor will I now discuss arbitrations in which the parties have agreed that the arbitrators need not be guided by law, or where the arbitral tribunal is expressly authorized by the parties to decide ex aequo et bono and thereby to settle the matter in a liberal spirit without regard to legal requirements and technicalities. Thus, cases in which the arbitrators have been empowered to seek mutual accommodations that would give offense to neither party are outside the scope of this discussion, as are cases where arbitrators recommended action by one of the parties as an act of grace.

The participation of developing countries in the international legal system poses a perennial dilemma. On the one hand the brutal facts of international economic and commercial interdependence make such participation inevitable. On the other hand, developing countries, for various reasons and with varying degrees of intensity, have articulated their reservations, or indeed experienced considerable difficulties, with respect to such participation. This article considers this dilemma with special reference to the experience of Sub-Saharan African countries in international commercial arbitration.

The effort to attract commercial arbitration to the Permanent Court of Arbitration [hereinafter PCA] in 1962 by introducing the Rules of Arbitration and Conciliation for Settlement of International Disputes between Two Parties of Which only One is a State [hereinafter the 1962 Rules], has met with little success. In other articles of this issue of the Leiden Journal of International Law the reasons for this failure are discussed. These articles also contain suggestions on how changes in the legal framework and the administration of the PCA may improve this situation.