Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part II

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Draft Convention relative to the Creation of a Judicial Arbitration Court.

Part I.—Constitution of the Judicial Arbitration Court.

Article I.

With a view to promoting the cause of arbitration, the Contracting Powers agree to constitute, without altering the status of the Permanent Court of Arbitration, a Judicial Arbitration Court, of free and easy access, composed of Judges representing the various juridical systems of the world, and capable of insuring continuity in jurisprudence of arbitration.

Article II.

The Judicial Arbitration Court is composed of Judges and Deputy Judges chosen from persons of the highest moral reputation, and all fulfilling conditions qualifying them, in their respective countries, to occupy high legal posts, or be jurists of recognized competence in matters of international law.

The Judges and Deputy Judges of the Court are appointed, as far as possible, from the members of the Permanent Court of Arbitration. The appointment shall be made within the six months following the ratification of the present Convention.

Article III.

The Judges and Deputy Judges are appointed for a period of twelve years, counting from the date on which the appointment is notified to the Administrative Council created by the Convention for the Pacific Settlement of International Disputes. Their appointments can be renewed.

Should a Judge or Deputy Judge die or retire, the vacancy is filled in the manner in which his appointment was made. In this case, the appointment is made for a fresh period of twelve years.

Article IV.

The Judges of the Judicial Arbitration Court are equal and rank according to the date on which their appointment was notified. The Judge who is senior in point of age takes precedence when the date of notification is the same.

The Deputy Judges are assimilated, in the exercise of their functions, with the Judges. They rank, however, below the latter.

Article V.

The Judges enjoy diplomatic privileges and immunities in the exercise of their functions, outside their own country.

Before taking their seat, the Judges and Deputy Judges must swear, before the Administrative Council, or make a solemn affirmation to exercise their functions impartially and conscientiously.

Article VI.

The Court annually nominates three Judges to form a special delegation and three more to replace them should the necessity arise. They may be re-elected. They are balloted for. The persons who secure the largest number of votes are considered elected. The delegation itself elects its President, who, in default of a majority, is appointed by lot.

A member of the delegation cannot exercise his duties when the Power which appointed him, or of which he is a national, is one of the parties.

The members of the delegation are to conclude all matters submitted to them, even if the period for which they have been appointed Judges has expired.

Article VII.

A Judge may not exercise his judicial functions in any case in which he has, in any way whatever, taken part in the decision of a “National Tribunal, of a Tribunal of Arbitration, or of a Commission of Inquiry, or has figured in the suit as counsel or advocate for one of the parties.

A Judge cannot act as agent or advocate before the Judicial Arbitration Court or the Permanent Court of Arbitration, before a Special Tribunal of Arbitration or a Commission of Inquiry, nor act for one of the parties in any capacity whatsoever so long as his appointment lasts.

Article VIII.

The Court elects its President and Vice-President by an absolute majority of the votes cast. After two ballots, the election is made by a bare majority and, in case the votes are even, by lot.

Article IX.

The Judges of the Judicial Arbitration Court receive an annual salary of 6,000 Netherland florins. This salary is paid at the end of each half-year, reckoned from the date on which the Court meets for the first time.

In the exercise of their duties during the sessions or in the special cases covered by the present Convention, they receive the sum of 100 florins per diem. They are further entitled to receive a travelling allowance fixed in accordance with Regulations existing in their own country. The provisions of the present paragraph are applicable also to a Deputy Judge when acting for a Judge.

These emoluments are included in the general expenses of the Court dealt with in Article XXXI, and are paid through the International Bureau created by the Convention for the Pacific Settlement of International Disputes.

Article X.

The Judges may not accept from their own Government or from that of any other Power any remuneration for services connected with their duties in their capacity of members of the Court.

Article XI.

The seat of the Judicial Court of Arbitration is at The Hague, and cannot be transferred, unless absolutely obliged by circumstances, elsewhere.

The delegation may choose, with the assent of the parties concerned, another site for its meetings, if special circumstances lender such a step necessary.

Article XII.

The Administrative Council fulfills with regard to the Judicial Court of Arbitration the same functions as to the Permanent Court of Arbitration.

Article XIII.

The International Bureau acts as registry to the Judicial Court of Arbitration, and must place its offices and staff at the disposal of the Court. It has charge of the archives and carries out the administrative work.

The Secretary-General of the Bureau discharges the functions of Registrar.

The necessary secretaries to assist the Registrar, translators and shorthand writers are appointed and sworn in by the Court.

Article XIV.

The Court meets in session once a year. The session opens the third Wednesday in June and lasts until all the business on the agenda has been transacted.

The Court does not meet in session if the delegation considers that such meeting is unnecessary. However, when a Power is party in a case actually pending before the Court, the pleadings in which are closed, or about to be closed, it may insist that the session should be held.

When necessary, the delegation may summon the Court in extraordinary session.

Article XV.

A Report of the doings of the Court shall be drawn up every year by the delegation. This Report shall be forwarded to the Contracting Powers through the International Bureau. It shall also be communicated to the Judges and Deputy Judges of the Court.

Article XVI.

The Judges and Deputy Judges, members of the Judicial Arbitration Court, can also exercise the functions of Judge and Deputy Judge in the International Prize Court.

Part II.—Competency and Procedure.

Article XVII.

The Judicial Court of Arbitration is competent to deal with all cases submitted to it, in virtue either of a general undertaking to have recourse to arbitration or of a special agreement.

Article XVIII.

The delegation is competent—

1. To decide the arbitrations referred to in the preceding Article, if the parties concerned are agreed that the summary procedure, laid down in Part IV, Chapter IV, of the Convention for the Pacific Settlement of International Disputes is to be applied;

2. To hold an inquiry under and in accordance with Part III of the said Convention, in so far as the delegation is intrusted with such inquiry by the parties acting in common agreement. With the assent of the parties concerned, and as an exception to Article VII, paragraph 1, the members of the delegation who have taken part in the inquiry may sit as Judges, if the case in dispute is submitted to the arbitration of the Court or of the delegation itself.

Article XIX.

The delegation is also competent to settle the Compromis referred to in Article LII of the Convention for the Pacific Settlement of Inernational Disputes if the parties are agreed to leave it to the Court.

It is equally competent to do so, even when the request is only made by one of the parties concerned, if all attempts have failed to reach an understanding through the diplomatic channel, in the case of—

1. A dispute covered by a general Treaty of Arbitration concluded or renewed after the present Convention has come into force, providing for a Compromis in all disputes, and not either explicitly or implicitly excluding the settlement of the Compromis from the competence of the delegation. Recourse cannot, however, be had to the Court if the other party declares that in its opinion the dispute does not belong to the category of questions to be submitted to compulsory arbitration, unless the Treaty of Arbitration confers upon the Arbitration Tribunal the power of deciding this preliminary question.

2. A dispute arising from contract debts claimed from one Power by another Power as due to its nationals, and for the settlement of which the offer of arbitration has been accepted. This arrangement is not applicable if acceptance is subject to the condition that the Compromis should be settled in some other way.

Article XX.

Each of the parties concerned may nominate a Judge of the Court to take part, with power to vote, in the examination of the case submitted to the delegation.

If the delegation acts as a Commission of Enquiry, this task may be intrusted to persons other than the Judges of the Court. The travelling expenses and remuneration to be given to the said persons are fixed and borne by the Powers appointing them.

Article XXI.

The Contracting Powers only may have access to the Judicial Arbitration Court set up by the present Convention.

Article XXII.

The Judicial Court of Arbitration follows the rules of procedure laid down in the Convention for the Pacific Settlement of International Disputes, except in so far as the procedure is laid down in the present Convention.

Article XXIII.

The Court determines what language it will itself use and what languages may be used before it.

Article XXIV.

The International Bureau serves as channel for all communications to be made to the Judges during the interchange of pleadings provided for in Article LXIII, paragraph 2, of the Convention for the Pacific Settlement of International Disputes.

Article XXV.

For all notices to be served, in particular on the parties, witnesses, or experts, the Court may apply direct to the Government of the State on whose territory the service is to be carried out. The same rule applies in the case of steps being taken to procure evidence.

The requests addressed for this purpose can only be rejected when the Power applied to considers them likely to impair its sovereign rights or its safety. If the request is complied with, the fees charged must only comprise the expenses actually incurred.

The Court is equally entitled to act through the Power on whose territory it sits.

Notices to be given to parties in the place where the Court sits may be served through the International Bureau.

Article XXVI.

The discussions are under the control of the President or Vice-President, or, in case they are absent or cannot act, of the senior Judge present.

The Judge appointed by one of the parties cannot preside.

Article XXVII.

The Court considers its decisions in private, and the proceedings are secret.

All decisions are arrived at by a majority of the Judges present. If the number of Judges is even and equally divided, the vote of the junior Judge, in the order of precedence laid down in Article IV, paragraph 1, is not counted.

Article XXVIII.

The judgment of the Court must give the reasons on which it is based. It contains the names of the Judges taking part in it; it is signed by the President and Registrar.

Article XXIX.

Each party pays its own costs and an equal share of the costs of the trial.

Article XXX.

The provisions of Articles XXI to XXIX are applicable by analogy to the procedure before the delegation.

When the right of attaching a member to the delegation has been exercised by one of the parties only, the vote of the member attached is not recorded if the votes are evenly divided.

Article XXXI.

The general expenses of the Court are borne by the Contracting Powers.

The Administrative Council applies to the Powers to obtain the funds requisite for the working of the Court.

Article XXXII.

The Court itself draws up its own rules of procedure, which must be communicated to the Contracting Powers.

After the ratification of the present Convention the Court shall meet as early as possible in order to elaborate these rules, elect the President and Vice-President, and appoint the members of the delegation.

Article XXXIII.

The Court may propose modifications in the provisions of the present Convention concerning procedure. These proposals are communicated through the Netherland Government to the Contracting Powers, which will consider together as to the measures to be taken.

Part III.—Final Provisions.

Article XXXIV.

The present Convention shall be ratified as soon as possible.

The ratifications shall be deposited at The Hague.

A procès-verbal of the deposit of each ratification shall be drawn up, of which a duly certified copy shall be sent through the diplomatic channel to all the Signatory Powers.

Article XXXV.

The Convention shall come into force six months after its ratification.

It shall remain in force for twelve years, and shall be tacitly renewed for periods of twelve years, unless denounced.

The denunciation must be notified, at least two years before the expiration of each period, to the Netherland Government, which will inform the other Powers.

The denunciation shall only have effect in regard to the notifying Power. The Convention shall continue in force as far as the other Powers are concerned.