Page images

to open fully by as many counsel as it may desire to use, the other side then to reply in like manner, with a closing speech on each side in the same order, i. e., under this arrangement, the side which opens does not close the argument. 19

The three points so far dealt with, namely, the scope of the case, and counter-case, the question of determining who is plaintiff and the order of speaking, are illustrations of the many elementary, yet fundamental matters relating to practice and procedure with regard to which the Hague Conventions make no provision. It may be worth while to mention two other very practical matters which are touched on in the Hague Conventions, but as to which a satisfactory practice has not yet been established.

Articles 71 and 72 of the Hague Conventions secure, respectively, the right of agents and counsel to "raise objections and points" and the reciprocal right of the members of the tribunal to interrogate agents and

19 In the Chamizal Arbitration, however, the learned Presiding Commissioner observed that "The usual international practice, as I understand it, is that one counsel shall be heard on one side and another on the other side, and that they should alternate in that manner." [Chamizal, Oral Argument, p. 45; see, also, pp. 94, 97 and 99 for expressions to the same effect.] And, acting upon this view, he ruled that the argument in the Chamizal case should proceed in that order, which, it will be noted, was the order adopted, by agreement of the agents, in the North Atlantic Coast Fisheries case, but, it is believed, not followed in any other case at The Hague where there was more than one speaker on each side. The Presiding Commissioner in the Chamizal case further arranged that the order of the alternation should be changed in the closing speeches, thus giving Mexico both the opening and the closing, although the court expressly declined to hold either party plaintiff or defendant. It should be noted in this connection, however, that both parties had desired the other side to take the opening, and the Presiding Commissioner had requested Mexico to open. Very possibly it was thought that perfect equality would be obtained by giving Mexico the closing speech, which both parties desired; but, query, whether or not agent and counsel for the United States did not have a right to rely with some confidence on the uniform international practice, so far as the Hague Court is concerned at least, that the side which opens shall not be permitted to close, even though it be admittedly the plaintiff? As it turned out, the order of oral argument in this case was of no particular practical importance, but it is submitted that universal experience in the municipal courts has shown that in the long run it is a matter of great practical importance that the order of oral argument should be settled in advance by general rules which should be applied automatically to the particular case, at least in the absence of some peculiar circumstances calling for a departure from the general rule.

counsel. Both these rights might seem self-evident, even if not expressly recognized. Article 71 reads as follows:

They [the agents and counsel] are entitled to raise objections and points. The decisions of the tribunal on these points are final and cannot form the subject of any subsequent discussion.

It would seem that the right to raise objections and points, coupled with the prohibition of "subsequent discussion" of the decisions of the tribunal on these points would imply the right to make timely argument in support of an objection so raised before the interlocutory decision was handed down, especially in connection with the very sweeping right secured to agents and counsel by Article 70, already referred to, "to present orally to the tribunal all the arguments they may consider expedient in defense of their case."

Yet, in a recent case, an interlocutory motion having been made, no opportunity was given to argue the motion until the agent who made it obtained the floor in regular order to make his argument upon the merits. By that time it was too late to have given the relief asked for in the interlocutory motion, at least to its fullest extent, even if the court had been so minded. As it was the court did not notice the interlocutory motion in any way after it was argued.20 The practical difficulties and embarrassments under which the court labored in this case are fully recognized, and it is not intended to suggest that the court failed to do substantial justice with respect to the subject of the motion, but it is submitted, in no spirit of captious criticism, that the time has now come when in matters of procedure as well as with respect to the merits of each case we should have done with arrangement and compromise and have clearcut rulings upon points of practice as they are presented. And it is therefore suggested that if the court in this case correctly interpreted Article 71 21 of the Hague Conventions, this article needs to be so amended

20 See AMERICAN JOURNAL of INTERNATIONAL LAW, January 1911, p. 57, for a fuller discussion of this incident. It is believed that under the peculiar circumstances of the case in question the interlocutory motion was seasonably presented. But if the court thought that it was not so presented it is submitted with deference that the proper course would have been for the court then and there to have declined to entertain it on that specific ground.

21 See the ruling of the tribunal, upon the basis of this article, in the Venezuela

as to secure to agents and counsel the right to make interlocutory motions at appropriate times, to have a reasonable opportunity to be heard thereon in open court, and to have a timely ruling upon the point as raised. Article 72 reads as follows:

The members of the tribunal are entitled to put questions to the agents and counsel of the parties, and to ask them for explanations on doubtful points. Neither the questions put nor the remarks made by members of the tribunal in the course of the discussion, can be regarded as an expression of opinion by the tribunal in general, or by its members in particular.

Certainly there can be no question of the profit to be derived from free and informal colloquies between the court and counsel. Every intelligent counsel welcomes any reasonable inquiry from the bench, because it shows him the bent of the court's mind and gives him a fair opportunity to meet the difficulties which present themselves to the court. On the other hand, counsel have a right, which reasonable judges ought to be very careful to respect, to present their case in their own way without untimely or purposeless interruption. This right seems to be impliedly recognized in Article 70 of the Hague Conventions. In practice, however, it sometimes appears not to be sufficiently regarded.22

This would seem to be too delicate a matter to attempt to regulate by express provision. But, again in no spirit of captious criticism, it is submitted that it is very desirable that the subject should be brought up and discussed, with a view to the formation of such a professional opinion among those likely to be participants, either on the bench or at the bar, in international litigation, as shall make for a sane and reasonable practice, which shall secure the benefits of the Socratic method without depriving agents and counsel of an opportunity, at some stage of the proceedings, to present their case in their own way.23 Preferential case, calling counsel to order for attempting to reopen an interlocutory point once decided. Recueil, etc., p. 54. Penfield's Report, p. 63.

22 One of the most extreme instances of this sort of thing on record was the interruption of Judge Penfield, counsel for the United States, while making his argument in the El Triumfo Arbitration with Salvador. The report of Judge Penfield's speech reads and looks like a drama in which the nominal speaker was only one of the dramatis persona. [See Oral Argument of Judge Penfield, etc., G. P. O., 1902.]

23 In the Casablanca arbitration the agents presented their arguments on one day, and were questioned on another day. This method is not without its advantages under some circumstances.

As has been said, the matters of procedure herein treated are elementary, but they are those which arise in almost every case brought before an international tribunal and they ought to be settled once for all by some definite rule, so that they should no longer trouble court and counsel. No attempt has been made in this paper to refer to more serious and more contentious matters of arbitral procedure, such as the law of evidence and the question of some adequate provision for reciprocal discovery, etc., matters as to which the Hague Conventions are wholly silent and which have received but scanty treatment in the various compromis of arbitration. But it is believed that enough has been said to illustrate the thesis which it is desired to present for consideration, which is, that, whatever other subjects the preparatory committee for the next Hague Conference may deem "ripe for embodiment in an international regulation," there is one branch of international law which is ripe for codification and which should be so reported to the conference by the preparatory committee, namely, the Law of International Arbitral Procedure.




Until the great goal of the peace movement, that is to say, the world peace treaty without reservation of any kind and extending to all nations, shall at some future time have been concluded, two periods in the development of arbitration, each of which is in turn marked by three successive stages of growth, are clearly discernible. The first embraces the development of special treaties; the second that of the world treaty. In point of time, these two periods follow one another; yet the world treaty is ushered in even before the special treaty has reached its highest stage.

Special treaties and the world treaty alike pass through three stages of development. The first is characterized by the fact that the respective treaties are concluded at all, regardless of the extent to which the parties thereto bind themselves. In the second stage the effort is made to limit and to define more and more precisely the stipulations existing to a greater or lesser extent in the first. And in the third we reach at last the treaty without reservation.

As to the world treaty, we have as yet been unable to reach the first stage. In spite of the efforts to that end of many of the nations represented at the First and Second Hague Peace Conferences, it was impossible to overcome the opposition of the German Government. But it may nevertheless be considered certain that not many years will have passed before the hope for a world peace treaty is fulfilled.1 I feel

1 It is admirable to see with what steadfastness of purpose the German delegate, Philipp Zorn, professor in the university of Bonn, advocates the world arbitral treaty in Germany. Within the first five years following the Second Hague Conference, he has devoted not less than five addresses and articles to this problem, namely: (1) "Das völkerrechtliche Werk der beiden Haager Friedenskonferenzen," in Zeitschrift für Politik, 1909, pp. 321 et seq.; (2) "Zur neuesten Entwicklung des Völkerrechts," in Festgabe für Güterbock, 1910, pp. 197 et seq.; (3) "Das Deutsche Reich und die internationale Schiedsgerichtsbarkeit," address delivered as Rector Magnificus, 1911; (4) "Die Schiedsgerichtsbarkeit in dem Leben der Völker und im interna

« PreviousContinue »