tion. The basis for the present provisions was a Chapter V most admirable system of rules of procedure adopted by the tribunal which decided the question of the true boundary line between Venezuela and British Guiana. These rules were understood to be the joint production of the distinguished President of that tribunal, M. de Martens of Russia, and of Mr. Justice Brewer of the United States Supreme Court, and Lord Justice Collins of the English High Court of Judicature.

ARTICLE 30. With a view to encouraging the Rules. development of arbitration the Signatory Powers have agreed on the following rules, which shall be applicable to the arbitral procedure unless the parties have agreed upon different regulations.

arbitrate.

ARTICLE 31. The Powers which resort to arbitra- Agreement to tion shall sign a special act (compromis) in which the subject of the difference shall be precisely defined, as well as the extent of the Powers of the arbitrators. This act implies an agreement by each party to submit in good faith to the award.

The importance of the manner of stating the question to be submitted has been fully discussed in the Commentary to Article 16.

the arbitral

ARTICLE 32. The duties of arbitrator may be con- Manner of ferred upon one arbitrator alone, or upon several constituting arbitrators selected by the parties, as they please, or tribunal. chosen by them from the members of the Permanent Court of Arbitration established by the present act. Failing the constitution of the Tribunal by direct

Chapter V

Sovereign

or Chief of State to fix procedure.

The umpire to preside.

How vacan

filled.

agreement between the parties, it shall be formed in the following manner :

Each party shall appoint two arbitrators and these shall together choose an umpire. In case of an equal division of votes the choice of the umpire shall be intrusted to a third Power to be selected by the parties by common accord. If no agreement is arrived at on this point, each party shall select a different Power, and the choice of the umpire shall be made by agreement between the Powers thus selected.

ARTICLE 33. When a Sovereign or Chief of State shall be chosen for an arbitrator, the arbitral procedure shall be determined by him.

ARTICLE 34. The umpire shall preside over the Tribunal; when the Tribunal does not include an umpire, it shall appoint its own presiding officer.

The Committee recognized the great importance of having an uneven number of arbitrators wherever possible. At the same time tribunals with an even number may sometimes be preferred, as in the case where such a tribunal was expressly provided for, under Article 6 of the proposed treaty of arbitration between Great Britain and the United States.

ARTICLE 35. In case of the death, resignation, or cies are to be absence, for any cause, of one of the arbitrators, the place shall be filled in the manner provided for his appointment.

The original Code of procedure submitted by the Russian Government provided that in case of the death or resignation of an arbitrator, the entire

agreement for arbitration should be considered void. Chapter V This would seem to be more in accord with the principle previously laid down, requiring the assent of both litigants to the appointment of every member of the Court. After careful discussion the Committee, however, decided that the Article as it stands contains the safest general rule for such a contingency, and that it would be better for the parties to understand that in the absence of a contrary stipulation, the same authority, appointing an arbitrator, might be called upon in a proper case to fill the vacancy.

ARTICLE 36. The parties shall designate the place Place of where the Tribunal is to sit. Failing such a designa- sitting. tion, the Tribunal shall sit at The Hague. The place of session thus determined shall not, except in the case of overwhelming necessity, be changed by the Tribunal without the consent of the parties.

ARTICLE 37. The parties shall have the right to Appointment appoint agents or attorneys to represent them before of attorneys,

agents, and

the Tribunal and to serve as intermediaries between counselors. them and it.

They are also authorized to employ for the defence. of their rights and interests before the Tribunal counselors or solicitors named by them for that purpose.

There is no doubt that the practice before the international court of arbitration will attract to its bar the chief international jurists of every signatory power. The question whether any person enrolled as a member of the Court should be permitted to

For which, see 4 Official Record 141.

Chapter V

practice in certain cases.

practice before it was raised by Mr. Low of the Judges not to American Delegation, and was referred by the Third Committee to the Comité d'Examen for consideration and report. This Committee unanimously agreed to recommend that no member of a particular bench. should be permitted, during the exercise of such function, to appear before another bench, on another case, in the capacity of counsel. The English rule of "once a judge always a judge," suggested by Lord Pauncefote, seemed to the Committee to be too drastic. Mr. Holls of the United States suggested that the rule be made so as to prohibit a member of the Court from appearing as counsel for any country except the country of which he was a citizen or by which he was appointed. This view received the weighty indorsement of Professor Lammasch of Austria, but the Committee finally decided upon having it merely spread upon the record in the procès verbal, and permitting the question as a whole to remain in comparative uncertainty, trusting that the good sense and propriety of the members of the Court, as well as of its bar, would finally evolve a rule without inconvenience, and with sufficient safeguards for the unsullied reputation of the bench for disinterestedness and impartiality.

Language.

Two phases of

ARTICLE 38. The Tribunal shall decide upon the choice of languages used by itself, or to be authorized for use before it.

ARTICLE 39. As a general rule the arbitral procedprocedure. ure shall comprise two distinct phases-preliminary

examination and discussion. Preliminary examina- Chapter V tion shall consist in the communication by the respective agents to the members of the Tribunal and to the opposite party, of all printed or written acts, and of all documents containing the arguments to be invoked in the case. This communication shall be made in the form and within the period fixed by the Tribunal, in accordance with Article 49. The discussion shall consist in the oral argument before the Tribunal. The discussion shall consist in the oral development before the Tribunal of the argument of the parties.

This Article in effect provides for a procedure similar to that now in existence before ordinary American or English appellate tribunals. The documents in the case or the so-called "printed case on appeal " is filed with the Court, and served on the opposite side within the time limit set by the rules, and at the proper day the oral argument is heard by the Court.

ARTICLE 40. Every document produced by one Communicaparty must be communicated to the other party. documents.

tion of

court.

ARTICLE 41. The discussions shall be under the The proceeddirection of the president. They shall be public ings in open only in case it shall be so decided by the Tribunal, with the assent of the parties. They shall be recorded in the official minutes drawn up by the secretaries appointed by the president. These official minutes alone shall have an authentic character.

There can be no doubt that publicity will be the rule, with reference to the proceedings of the international Court of Arbitration. At the same time,