Permanent Court of Arbitration

Pulkeshwar Rajpurohit, Christ University, Banglore


Introduction

The Permanent Court of Arbitration or PCA, set up by an arrangement in 1899, is an intergovernmental association providing an assortment of dispute resolution services to the international community. The PCA is situated at The Hague in the Netherlands. It is not a court in the traditional sense, rather a planner of arbitral tribunals which seeks to resolve the conflicts between its members states, organizations, and private parties. It was established by a treaty at the First Hague Peace Conference of the Netherlands in 1899. It facilitates mediation and other styles of dispute resolution involving various combinations of states, state institutions, international organizations, and individual parties. It also administers cases under the arbitration rules of UNCITRAL.

PCA Membership

Parties to the Convention on the Pacific Settlement of Disputes of 1899 (71 member states) and 1907 (101 member states) are automatically parties to the PCA. As 51 states are parties to both conferences, the PCA has 121 member states – 119 members of the World Organization, in addition to Kosovo and Palestine. India can be a party to the PCA as per the City Convention of 1899.

History

In The Hague International Peace Conference meeting of the Sovereign Powers in July 1899, a “Convention for the Pacific Settlement of International Disputes” was adopted, aimed at establishing a global institution for international dispute resolution – ‘The Permanent Court of Arbitration’. The same conference is also known as the ‘world’s first successful egalitarian assembly of a political character’ and the predecessor of the League of Nations and the UN.

The 1899 Convention was revised at the Second Hague Peace Conference in 1907, by the appropriation of a second "Convention for the Pacific Settlement of International Disputes."[1]

Although most of the States are parties to the 1907 Convention, the two Conventions remain in power. There are 97 Contracting States as of now.

The construction of the Peace Palace in Hague was completed in 1913. Originally meant for the PCA Headquarters, the Palace is now also the house of the ICJ, the Carnegie Library and the Hague Academy of International Law.

“In the first few decades of the PCA’s existence, a significant number of inter-state disputes were submitted to tribunals established under its auspices.”[2] As the purpose of establishment of the PCA was to resolve disputes between the states, all of the early tribunals including issues of territorial sovereignty, public international law, state responsibility etc. were called upon for deciding disputes. As a matter of fact, many principles of the PCA cases that were laid down at that time are relevant till date, and even cited by various other tribunals, including the International Court of Justice (ICJ).

Jurisdiction of the Institution

The PCA was originally established for inter-State arbitration. The Hague Conventions of 1899 and 1907 allow for considerable flexibility in the constitution of a ‘special Board of Arbitration’. It expressly authorizes the International Bureau to place its offices and staff at the disposal of the Contracting Powers for the use of any of these Boards.[3]

The following parties may, in principle, agree to bring a case before the PCA:

· Any two or more States

· A State and an international organisation (i.e., an intergovernmental organisation)

· Two or more international organisations

· A State and a private party

· An international organisation and a private party

Private parties may agree to use the administrative and other facilities of the PCA in arbitrations conducted under the UNCITRAL Rules.[4]

Jurisdiction of the Arbitral Tribunal

The various PCA Rules follow the UNCITRAL Rules in empowering the arbitral tribunal to decide on any objections to its jurisdiction.[5]

1. Contentious/ Advisory Jurisdiction

PCA practice makes no distinction between contentious and advisory jurisdiction. Arbitration is virtually always contentious and can be distinguished from other forms of non-judicial dispute resolution by the final and binding nature of the resulting arbitral award. The PCA’s non-binding methods of dispute resolution, including mediation, conciliation and inquiry or fact-finding, might therefore be more appropriate for parties seeking an advisory or non-binding declaration of their mutual rights and obligations.

2. Subject matter

The potential subject-matter jurisdiction of PCA arbitral tribunals is unlimited. However, the scope of jurisdiction is governed by the wording of the applicable arbitration agreement in each case.

3. Time limits

The various rules of procedure do not place any temporal limits upon the referral of disputes to PCA arbitration. Such restrictions may be found in the arbitration agreement.

Optional Rules and Other Activities

In 2012, the PCA modernized and consolidated the optional procedural rules adopted previously, with the PCA Arbitration Rules 2012, a single set of arbitration rules for any dispute of which at least one party is a state, state entity, or intergovernmental organization.

The PCA Rules of Procedure for Arbitrating Disputes Relating to Natural Resources and/or the Environment and the Optional Rules for Conciliation of Disputes Relating to Natural Resources and/or the Environment contain no requirement that one of the parties be a State or organization of States.

Moreover, the PCA has sought to increase the accessibility of its dispute resolution services. In 1995, the PCA established a Financial Assistance Fund, which aims at helping developing countries meet part of the costs involved in international arbitration or other means of dispute settlement offered by the PCA

The PCA pursues a policy of concluding ‘Host Country Agreements’ (HCAs) with its member states, which is designed to allow the conduct of PCA-administered proceedings in the host country on similar terms as in the Netherlands, making PCA arbitration and other services more accessible to parties in the host country and the wider region.

Conclusion

The dynamic nature of the PCA has allowed it to evolve to meet the changing needs of the international community. Events spanning the last 100 years of the PCA’s existence have undeniably proved that recourse to armed conflict remains a regrettable fact of international affairs. The main objective which led to the creation of the PCA i.e., international peace through justice remains as relevant in today’s worldly affairs and its constantly changing environment.

[1] Convention for the Pacific Settlement of International Disputes, Oct. 18, 1907, 36 Stat. 2199 [hereinafter, “1907 Convention”] [2] See, for example, Hamilton P et al., eds., The Permanent Court of Arbitration: International Arbitration and Dispute Resolution: Summaries of Awards, Settlement Agreements and Reports (1999) [hereinafter “PCA Summaries”]. [3] 1899 Convention, Art 26; 1907 Convention, Art 47. [4] United Nations Doc No. A/CN. 9/230 (1982). [5] Article 21(1)

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