Permanent Court of Arbitration

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Permanent Court of Arbitration
Cour permanente d'arbitrage
Permanent Court of Arbitration - Cour permanente d'arbitrage.svg
Seal of the PCA
Permanent Court of Arbitration
52°05′12″N4°17′44″E / 52.0866°N 4.2955°E / 52.0866; 4.2955
Established1899
Location The Hague, Netherlands
Coordinates 52°05′12″N4°17′44″E / 52.0866°N 4.2955°E / 52.0866; 4.2955
Authorized by Hague Peace Conference
Judge term length6 years (renewable) [1]
Number of positionsMaximum 4 per member state
Website pca-cpa.org
Secretary-General
Currently Marcin Czepelak [2]
Since2022 [2]

The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization headquartered at the Peace Palace, in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides administrative support in international arbitrations involving various combinations of States, State entities, international organizations and private parties. [3] The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The PCA is constituted through two separate multilateral conventions [4] with a combined membership of 122 Contracting Parties. [5] The PCA is not a United Nations agency, [6] but has been a United Nations observer since 1993. [7]

Contents

The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference of 1899. [8] The Conference had been convened at the initiative of Czar Nicolas II of Russia “with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments.”

The PCA's headquarters, the Peace Palace, was built from 1907 to 1913 to house the Permanent Court of Arbitration. [9] [10]

Organization

Seat of the PCA: The Peace Palace ("Vredespaleis"), The Hague. International Court of Justice HQ 2006.jpg
Seat of the PCA: The Peace Palace ("Vredespaleis"), The Hague.
Parties of the Permanent Court of Arbitration .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{} according to the convention of 1907 according to the convention of 1899 not a party Permanent-Court-of-Arbitration-Members.svg
Parties of the Permanent Court of Arbitration
  according to the convention of 1907
  according to the convention of 1899
  not a party
PCA courtroom. Une des salles de reunion de la Cour permanente d'arbitrage.jpg
PCA courtroom.
Public Hearing in PCA Case No. 2015-28, the Enrica Lexie Incident (Italy v. India) Public Hearing in PCA Case No. 2015-28.jpg
Public Hearing in PCA Case No. 2015-28, the Enrica Lexie Incident (Italy v. India)
Prinsegracht 71, The Hague, a building dating from about 1728, which was the seat of the PCA between 1901 and 1913, when the construction of the Peace Palace was completed. Den Haag - Prinsegracht 71.JPG
Prinsegracht 71, The Hague, a building dating from about 1728, which was the seat of the PCA between 1901 and 1913, when the construction of the Peace Palace was completed.
North Atlantic Fisheries Arbitration at the Permanent Court of Arbitration, Prinsegracht 71, The Hague, 1910. North Atlantic Fisheries Arbitration, The Hague, 1910.jpg
North Atlantic Fisheries Arbitration at the Permanent Court of Arbitration, Prinsegracht 71, The Hague, 1910.

The PCA is not a court in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation. [11]

The Administrative Council (formally the Permanent Administrative Council) is a body composed of all the diplomatic representatives of the Contracting Parties accredited to the Netherlands. [12] It is presided by the Minister of Foreign Affairs of the Netherlands, who is also a Contracting Party. [13] It is responsible for the "direction and control" of the International Bureau, directs the organisation's budget and reports on its activities. [13]

The International Bureau is the Secretariat of the PCA and is headed by the Secretary-General. It provides linguistic, research, administrative and financial support to PCA arbitration tribunals. [14]

The third organ of the PCA are the Members of the Court. Each Contracting Party may appoint up to four persons "of known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators" for a renewable 6-year term. In addition to forming a panel of potential arbitrators, the Members of the Court from each Contracting Party constitute a “national group,” [15] which is entitled to nominate candidates for the election to the International Court of Justice. [15] The Members of the Court (along with the judges of the International Court of Justice) are among a handful of groups entitled to nominate candidates for the Nobel Peace Prize. [15]

Parties to a dispute may, but are not obliged to, select arbitrators from the list of the Members of the Court.

The PCA sometimes gets confused with the International Court of Justice, which also has its seat in the Peace Palace. [16] The PCA is not part of the UN system, [17] holding observer status in the UN General Assembly since 1993. [18] [19]

Public Hearing in the Administrative Council Chamber of the PCA in Case No. 2012-04 (Arbitration between the Republic of Croatia and the Republic of Slovenia) Public Hearing in PCA Case 2012-04.jpg
Public Hearing in the Administrative Council Chamber of the PCA in Case No. 2012-04 (Arbitration between the Republic of Croatia and the Republic of Slovenia)

Procedure

In the Articles 30–57 of the Hague Convention of 1899 the rules of arbitration procedure are outlined. These rules are an adapted version of pre-existing treaties among the states. They were amended in 1907, the creation of a summary procedure for simple cases being the most conspicuous change, and were relevant in the 1920s development of rules for the Court of International Justice.

The first act of parties before the PCA is the submission of the so-called "compromisis", stating the issue and the competence of the arbitrator(s). Proceedings are then conducted in two phases: written pleadings and oral discussion. The Court retires once the debate is over to deliberate and conclude the case by a simple majority of votes.

The decision is published as an award, along with any dissenting opinions. Early Court decisions were countersigned by the arbitrators themselves, but in 1907, that responsibility was passed to the president and secretary (of the PCA). The award is read in a public session in the presence of the agents and lawyers of the parties to the case. The decision is binding on the parties, and there is no mechanism for appeal. [20]

Budget and fees

Between 2007 and 2008, the budget was €1.8 million. [21]

The budget of PCA comes from the contributions of its Contracting Parties and income through arbitration cases. The distribution of the amounts to be paid by the individual Contracting Parties is based on the system in use by the Universal Postal Union. [12]

Parties to arbitration have to pay the expenses of the arbitral tribunal set up to hear the case, including the salary of the arbitrators, registry and administrative functions, but not including overheads of the organization. [22] [23] The costs of arbitration vary from case to case and discussions may be held between the PCA and the parties over fee arrangements. [24]

The fixed costs for action as an appointing authority are €3000. [25]

Contracting Parties

Parties to the Convention on the Pacific Settlement of disputes of 1899 (71 Parties) and 1907 (101 Parties) are automatically parties to the PCA. As 51 are parties to both conventions, the PCA has 122 Contracting Parties: 120 members of the United Nations, as well as Kosovo and Palestine. [5]

History

The PCA is the oldest institution for international dispute resolutions. It was established in 1899 by the first Hague Peace Conference under Articles 20 to 29 of the 1899 Hague Convention for the Pacific Settlement of International Disputes. At the second Hague Peace Conference, the earlier Convention was revised by the 1907 Convention for the Pacific Settlement of International Disputes. The Conference was convened at the initiative of Czar Nicholas II of Russia "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments". [26]

Functions

PCA tribunals have jurisdiction for disputes based on the PCA founding documents (the Conventions on Pacific Settlement of International Disputes), or based on bilateral and multilateral treaties. Its Secretary General furthermore acts as an appointing authority for arbitration.

Appointing authority

When problems arise in designating arbitrators for an arbitration under UNCITRAL arbitration rules (e.g. because one of the parties refuses to designate an arbitrator, or when the designated arbitrators are unable to agree on designation of a third arbitrator), the PCA Secretary-General may be requested to serve as an appointing authority. This option is also open for other arbitration agreements, in which the Secretary General is designated. [27] Between 2011, and 2015, 257 of such requests were submitted. [1]

Interstate arbitration based on the Hague Convention

Arbitration between two states takes place when two member states of the PCA decide to submit a dispute for arbitration to a PCA Tribunal. The Tribunal consists of five arbitrators: two (one of whom may be a national of the party concerned) are selected by each party to the arbitration; these four arbitrators then choose the fifth and presiding arbitrator. [28]

Interstate arbitration based on UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS) provides for a dispute resolution mechanism regarding maritime boundaries in which member states can choose either the

  1. International Tribunal for the Law of the Sea
  2. International Court of Justice,
  3. arbitral tribunal (constituted in accordance with Annex VII, UNCLOS)[ citation needed ]
  4. a special arbitral tribunal (constituted in accordance with Annex VIII).

If two member states have elected different dispute resolution measures, the third option is to be used. [29] As of August 2016, the PCA has administered twelve of the thirteen cases initiated by states under Annex VII to the UNCLOS. [30] [31]

Investor–state investment disputes

Many free trade agreements provide for a mechanism to resolve disputes between investors and states through arbitration through so-called ISDS clauses. The PCA may play a role in such proceedings as appointing authority for arbitrators, by use of its arbitration rules or by providing support to the arbitration case. [32]

Cases

Examples of cases are shown below:

Interstate

Interstate: Annex VII UNCLOS

Investor-state

Other

See also

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References

  1. 1 2 "115th Annual Report" (PDF). Permanent Court of Arbitration. Archived from the original (PDF) on 27 August 2016. Retrieved 30 July 2016.
  2. 1 2 "Polak nowym Sekretarzem Generalnym Stałego Trybunału Arbitrażowego w Hadze". PCA. Retrieved 2022-02-17.
  3. ↑ "Services - PCA-CPA". Archived from the original on 2016-06-22.
  4. ↑ "History". PCA. Archived from the original on 27 August 2016. Retrieved 2 August 2016.
  5. 1 2 "Contracting Parties". PCA. Retrieved 3 August 2019.
  6. ↑ "United Nations stresses separation from Hague tribunal". Archived from the original on 2016-07-16. The United Nations clarified on its Chinese microblog yesterday that the tribunal that ruled against China's historic claims over the disputed South China Sea was not a UN agency.
  7. ↑ "Intergovernmental Organizations". www.un.org. Archived from the original on 2017-05-23.
  8. ↑ Schofield, Garth (2021), Lim, C. L. (ed.), "The Permanent Court of Arbitration: From 1899 to the Present", The Cambridge Companion to International Arbitration, Cambridge Companions to Law, Cambridge University Press, pp. 349–388, doi:10.1017/9781108635752.023, ISBN   978-1-108-48059-8
  9. ↑ "ICJ Practical Information". International Court of Justice. Archived from the original on 2016-08-08. Retrieved 2018-12-23. Built between 1907 and 1913 for the Permanent Court of Arbitration thanks to a donation from Andrew Carnegie, a Scottish-born industrialist who made his fortune in the United States, the Peace Palace is situated in seven hectares of parkland in the heart of the city
  10. ↑ "Peace Palace Carnegie Foundation". Peace Palace. Archived from the original on 2018-04-09. Retrieved 2018-12-23. He made his donation under the condition that the Peace Palace would not only house the Permanent Court of Arbitration, but also a public legal library
  11. ↑ Shabtai Rosenne, "The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents", T.M.C. Asser Press (2001), page xxi.
  12. 1 2 "Administrative Council". PCA. Archived from the original on 27 August 2016. Retrieved 30 July 2016.
  13. 1 2 Article 49
  14. ↑ "International Bureau". PCA. Archived from the original on 27 August 2016. Retrieved 2 August 2016.
  15. 1 2 3 "Members of the Court". PCA. Archived from the original on 27 August 2016. Retrieved 2 August 2016.
  16. ↑ "International Court of Justice". ICJ. Archived from the original on 2016-07-14. Retrieved 2016-07-14. The International Court of Justice (ICJ) wishes to draw the attention of the media and the public to the fact that the Award in the South China Sea Arbitration (The Republic of the Philippines v. The People's Republic of China) was issued by an Arbitral Tribunal acting with the secretarial assistance of the Permanent Court of Arbitration (PCA). The relevant information can be found on the PCA's website (www.pca-cpa.org). The ICJ, which is a totally distinct institution, has had no involvement in the above mentioned case and, for that reason, there is no information about it on the ICJ's website.
  17. ↑ "Arbitral court not a UN agency". Archived from the original on 16 July 2016. Retrieved 20 July 2016. ... they confuse the PCA with the UN's International Court of Justice (ICJ).
  18. ↑ "A/RES/48/3 29th plenary meeting 13 October 1993". United Nations General Assembly. Archived from the original on 24 January 2006.
  19. ↑ "General Assembly of the United Nations - Observers". UN. Archived from the original on 2017-06-16.
  20. ↑ Eyffinger, Arthur (1988). The Peace Palace: residence for justice, domicile of learning. Carnegie. p. 136. ISBN   9066113316.
  21. ↑ "The Permanent Court of Arbitration". City of The Hague. November 2008. Archived from the original on 14 September 2016. Retrieved 31 July 2016.
  22. ↑ Art. 85 Convention for the Pacific Settlement of International Disputes (Hague I), October 18, 1907.
  23. ↑ "Schedule of Fees and Costs". PCA. Archived from the original on 2018-05-12. Retrieved 2016-07-27.
  24. ↑ "FAQ, PCA-CPA". Archived from the original on 2016-08-27. Retrieved 2016-07-14. The costs of arbitration vary from case to case. To promote maximum flexibility in each case, the PCA has no fixed fee schedule. The PCA assists the parties and tribunal in finding a fee arrangement that is most appropriate for the case.
  25. ↑ "Fees and costs | PCA-CPA". pca-cpa.org.
  26. ↑ Loukas A. Mistelis (1 May 2010). Arbitration Rules-International Institutions-3rd Edition. Juris Publishing, Inc. p. 300. ISBN   978-1-933833-56-9.
  27. ↑ "PCA Secretary-General as Appointing Authority". Permanent Court of Arbitration. Archived from the original on 27 August 2016. Retrieved 30 July 2016.
  28. ↑ "1907 The Hague Convention for the Pacific Settlement of International Disputes". Archived from the original on 16 August 2011. Retrieved 31 July 2016.
  29. ↑ "United Nations Convention on the law of the sea" (PDF). Archived (PDF) from the original on 9 November 2015. Retrieved 31 July 2016. article 287
  30. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 2016-07-12. Retrieved 2016-07-13.{{cite web}}: CS1 maint: archived copy as title (link)
  31. ↑ "United Nations Convention on the Law of the Sea". PCA. Archived from the original on 27 August 2016. Retrieved 31 July 2016.
  32. ↑ "INSTRUMENTS REFERRING TO THE PCA". PCA. Archived from the original on 27 August 2016. Retrieved 31 July 2016.
  33. ↑
  34. ↑ "PCA-CPA". Archived from the original on 2013-10-19.
  35. ↑ "PCA-CPA". Archived from the original on 2010-12-13.
  36. ↑
  37. ↑
  38. ↑ "PCA-CPA". Archived from the original on 2014-07-30.
  39. ↑ "Cases | PCA-CPA — Cairn Energy PLC & Cairn UK Holdings Limited v. The Republic of India". pca-cpa.org. Permanent Court of Arbitration. Archived from the original on 3 February 2020. Retrieved 2021-07-22.
  40. ↑ Judge George H. Aldrich, "The Iran-U.S. Claims Tribunal" in P. Hamilton et al., ed., The Permanent Court of Arbitration: International Arbitration and Dispute Resolution, Kluwer Law International (1999), p. 208.

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