Tribunal. The refusal of any member to vote shall Chapter V be noted in the official minutes. accompanied ARTICLE 52. The award shall be made by a ma- Award by a jority of votes, and shall be accompanied by a state- majority, and ment of the reasons upon which it is based. It by an opinion. must be drawn up in writing and signed by each of the members of the Tribunal. Those members who are in the minority may, in signing, state their dis sent. the require ment of The requirement, on motion of Professor Zorn, Discussion on of an "opinion," with each arbitral award, stating the reasons upon which it is based, was vigorously opinions. attacked in the Comité d'Examen by M. de Martens. He recognized the advantage of creating a body of international Jurisprudence by means of a series of decisions and opinions of great authority, but he strongly objected to the idea of obligation to write, on the part of the arbitrators. The latter were not only judges, but very often also representatives of the governments in litigation. The prevailing opinion might contain serious criticism of one of the parties, and its representative would be constrained. to withhold a concurrence, which in the case of a simple award might have been obtained. A decision concurred in by the nominees of the defeated party was more important even for the future of arbitration than the most learned or eloquent opinion. There was nothing to prevent the judges, in proper cases, from writing opinions, but whether they should do so or not was surely a question which could safely be left to their discretion. Mr. Holls warmly sup Chapter V Public reading of the award. Final decision. Rehearing. ported this view, but the Comité d'Examen adopted the proposition of Professor Zorn, Chevalier Descamps declaring that the required statement might be made so short as to be entirely unobjectionable. ARTICLE 53. The award shall be read in a public sitting of the Tribunal, the agents and counsel of the litigants being present or having been duly summoned. ARTICLE 54. The award duly pronounced and notified to the agents of the parties in litigation shall decide the dispute finally and without appeal. ARTICLE 55. The parties may reserve in the agreement of arbitration the right to demand a rehearing of the case. In this case, and in the absence of any stipulation to the contrary, the demand shall be addressed to the Tribunal which has pronounced the judgment; but it shall be based only on the discovery of new facts, of such a character as to exercise a decisive influence upon the judgment, and which at the time of the judgment were unknown to the Tribunal itself and to the parties demanding the rehearing. The proceedings for a rehearing can only be begun by a decision of the Tribunal, stating expressly the existence of the new fact and recognizing that it possesses the character described in the preceding paragraph, and declaring that the demand is admissible on that ground. The agreement of arbitration shall determine the time within which the demand for a rehearing shall be made. The American Plan for an international tribunal contained the following paragraph: "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 in the Comité d'Examen it was vigorously opposed rehearing. 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 Chapter V de Martens. 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 |