The Transformation of the Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague. Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially. As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:
“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”
There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention. The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes. It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).
One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services. Member states donate to the fund, and the 2012 report notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far. In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization. An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.
Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally. Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters. Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid. Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters. Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?