IV ARBITRATION
Grotius, II. c. 23, § 8—Vattel, II. § 329—Hall, § 119—Westlake, I. pp. 332-356—Lawrence, § 221—Phillimore, III. §§ 3-5—Twiss, II. § 5—Taylor, §§ 357-358—Wharton, III. § 316—Moore, VII. §§ 1069-1080—Bluntschli, §§ 488-498—Heffter, § 109—Bulmerincq in Holtzendorff, IV. pp. 30-58—Ullmann, §§ 154-156—Bonfils, Nos. 944-969—Despagnet, Nos. 722-741—Pradier-Fodéré, VI. Nos. 2602-2630—Mérignhac, I. pp. 448-485—Rivier, II. § 59—Calvo, III. §§ 1706-1806—Fiore, II. Nos. 1202-1215, and Code, Nos. 1294-1380—Nys, III. pp. 65-80—Martens, II. § 104—Rouard de Card, L'arbitrage international (1876)—Mérignhac, Traité théorique et pratique de l'arbitrage (1895)—Moore, History and Digest of the Arbitrations to which the United States has been a Party, 6 vols. (1898)—Darby, International Arbitration, 4th ed. (1904)—Dumas, Les sanctions de l'arbitrage international (1905), and in A.J. V. (1911), pp. 934-957—Nippold, Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten (1907)—Reinsch in A.J. V. (1911), pp. 604-614—Scott, Conferences, pp. 188-253—Lapradelle et Politis, Recueil des arbitrages internationaux, I. (1798-1855), (1905)—Fried, Handbuch der Friedensbewegung, 2nd ed. (1911), pp. 135-184—Morris, International Arbitration and Procedure (1911)—Balch, International Courts of Arbitration (4th ed., with an introduction and additional notes by Thomas Willing Balch, 1912).
Conception of Arbitration.
§ 12. Arbitration is the name for the determination of differences between States through the verdict of one or more umpires chosen by the parties. As there is no central political authority above the Sovereign States, and no such International Court as could exercise jurisdiction over them, State differences, unlike differences between private individuals, cannot as a rule be obligatorily settled in courts of justice. The only way in which a settlement of State differences through a verdict may be arrived at is by the conflicting States voluntarily consenting to submit themselves to a verdict of one or more umpires chosen by themselves for that purpose.
Treaty of Arbitration.
§ 13. It is, therefore, necessary for such conflicting States as intend to have the conflict determined by arbitration to conclude a treaty by which they agree to this course. Such treaty of arbitration involves the obligation of both parties to submit in good faith to the decision of the arbitrators. Frequently a treaty of arbitration will be concluded after the outbreak of a difference, but it also frequently happens that States concluding treaties stipulate therein by the so-called Compromise Clause,[12] that any difference arising between the parties respecting matters regulated by such treaty shall be determined by arbitration. Two or more States can also conclude a so-called general treaty of arbitration, or treaty of permanent arbitration, stipulating that all or certain kinds of differences in future arising between them shall be settled by this method. Thus article 7 of the Commercial Treaty between Holland and Portugal[13] of July 5, 1894, contains such a general treaty of arbitration, as it stipulates arbitration not only for differences respecting matters of commerce, but for all kinds of differences arising in the future between the parties, provided these differences do not concern their independence or autonomy. Until the Hague Peace Conference of 1899, however, general treaties of arbitration were not numerous. But public opinion everywhere was aroused in favour of general arbitration treaties through the success of this conference, with the result that from 1900 to the present day many general arbitration treaties have been concluded.[14]
[13] See Martens, N.R.G. 2nd Ser. XXII. p. 590.