"Every litigant before the international tribunal Chapter V shall have the right to make an appeal for reëxamination of a case within three months after notification of the decision, upon presentation of evidence that the judgment contained a substantial error of fact or of law."

When this article was offered as an amendment Debate on rehearing. in the Comité d'Examen it was vigorously opposed by M. de Martens of Russia, who thought that any provision looking toward a second hearing would diminish the moral authority of the tribunal and the weight otherwise given to its first decisions. He therefore demanded a preliminary vote upon the question of the principle of a rehearing in any case. The Committee decided in favor of the principle, by the votes of Holland, Germany, Austria, Italy, Great Britain, and the United States, against those of Switzerland, Belgium, and Russia. Accordingly an article substantially embodying the American view was reported to the full Committee on Arbitration. M. Asser of Holland, in the general Committee, on July 17, offered the article as it now stands as a substitute for the American proposition. A summary of the speeches made for and against the proposition will suffice, for all practical purposes, as a commentary, and it is therefore subjoined.

M. de Mar

tens.

M. de Martens spoke as follows: "During the Speech of entire course of the Conference you have always honored me with a most respectful attention, whenever I deemed it necessary to intervene in the discussion, for the purpose of dissenting or explaining

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the ideas which have been put upon the programme Speech of M. on the part of Russia. I thank you most sincerely. "Permit me once more at this time to count upon such good will, and I beg your most serious attention, because the question which now occupies us is one of the very greatest importance. It is a vital question for the entire institution of international arbitration, which is certainly dear to all of our hearts. The honorable delegate from the United States, Mr. Holls, and my friend, M. Asser, have said that it is necessary to save the principle of a rehearing of arbitral award. I regret infinitely not to be able to share this opinion. I am a member of the society for the relief of the shipwrecked and of the Red Cross society, but in this present case I deem it my duty to be cruel and inhuman. I cannot possibly hold out my hands for the saving of Article 55, and I wish from the bottom of my heart that it shall be shipwrecked even on these hospitable shores of Holland.

"But, gentlemen, in what does the importance of this question consist? Is it true that a rehearing of a judicial award based upon error or upon considerations not sufficiently founded is not desirable? Ought we not, on the contrary, to desire that an error should be eliminated by new documents. or new facts which may be discovered after the close of the arbitration? No, gentlemen, it would be absolutely wrong and unfortunate to have an arbitral sentence duly pronounced by an international tribunal subject to being reversed by a new judgment.

It would be most profoundly regrettable if the arbitral Chapter V award did not terminate, finally and forever, the conflict between the litigating nations, but should provoke new dissensions, inflame the passions anew, and menace once more the peace of the world. A rehearing of the arbitral award as provided for in Article 55 must necessarily have such a disastrous effect. There should not on this point be left the slightest doubt. The litigating Power against which the arbitral award has been pronounced will not execute it, certainly not during three months, and it will make all imaginable efforts to find new facts or documents. The litigation will not have been ended, but it will be left in suspense for three months with this serious aggravation, that the Government and the nation which have been found to be culpable will once more be put upon the plane of recrimination and of reciprocal dangerous accusation. This is the explanation which makes it very significant that in this Comité d'Examen Article 55 received five votes against four.

"The end of arbitration is to terminate the controversy absolutely. The great utility of arbitration is in the fact that from the moment when the arbitral judgment is duly pronounced everything is finished, and nothing but bad faith can attack it. Never can an objection be raised against the execution of an arbitral sentence. Now, if we accept the principle of a rehearing, what will be the rôle of the arbitrators before and after the sentence? Actually they will enjoy the greatest moral authority, because they have the possibility of ending forever an inter

U

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national conflict, and experience has shown that on Speech of M. the morning after the award, journals, legislative chambers, public opinion-every one bows in silence to the decision of the arbitrators. If, on the contrary, it is known that the sentence is suspended for three months, the State against which judgment has been given will do its utmost to find a document or a new fact. During this time the judgment will be delivered over to the debate of public opinion. It will not finish or cut off anything. On the contrary, it will raise a tempest in the press and in the parliaments. Everything will be attacked - the arbitrators, the hostile government, and, above all, the home government. They will be accused of having held back documents and concealed new facts. For three months the discussion upon the judgment will be open. Never can a judgment given on such conditions have the moral obligatory force which is the very essence of arbitration. On the other hand, the arbitrators will not have the same sentiment of responsibility as when by one word they are able to determine a controversy between two nations. This idea of a rehearing is the saddest blow which could be struck against the idea of arbitration. Apropos of my first remarks at the beginning of these sessions I apply to myself the words, dixi et salvari animam meam,' I now change them and I say, 'dixi et salvavi arbitrationem.'

Reply of

Count Nigra remarked that the Committee was in Count Nigra. the presence of two opinions, both of which were too radical. There was a great deal of truth in the

arguments of M. de Martens; but errors always hap- Chapter V pen, and if it is truly an error, evident to the eyes of the public, why should it be held necessary to consecrate it? Why not revise it? On the other hand, the wording of Article 55 seemed to him to be too unlimited. The expression "new facts exercising a decisive influence" did not seem to him sufficiently precise or definite to limit the cases of a rehearing. The instructions of the Italian Government directed him to pronounce himself in favor of a rehearing. If the principle of a rehearing is maintained, it seemed to him preferable to adopt the text of the treaty of arbitration between Italy and the Argentine Republic, which limits the reasons for a rehearing to facts regarding the case in litigation in the following two cases: First, if the judgment was pronounced on the basis of a forged or erroneous document; second, if the judgment, wholly or partly, is the consequence of a positive or negative error of fact resulting from the acts or documents in the case.

Mr. Holls spoke as follows:

Holls.

"I cannot forbear to express, at the outset, the Reply of Mr. great reluctance and hesitation with which I find myself in disagreement, on a question of such great importance, with the gentleman who may perhaps be called the most eminent representative in the entire world, of the idea of arbitration, the President of the one tribunal of arbitration which is sitting at present, our most honorable colleague from Russia, M. de Martens. If there were in my mind the slightest doubt as to the soundness of the proposition which is