Permanent Court of Arbitration

Permanent Court of Arbitration
Cour permanente d'arbitrage
Seal of the PCA
52°05′12″N 4°17′44″E / 52.0866°N 4.2955°E / 52.0866; 4.2955
Established	1899
Jurisdiction	Worldwide, 124 parties[1]
Location	The Hague, Netherlands
Coordinates	52°05′12″N 4°17′44″E / 52.0866°N 4.2955°E / 52.0866; 4.2955
Authorised by	Hague Peace Conference
Judge term length	6 years (renewable)[2]
Number of positions	Maximum 4 per member state
Website	pca-cpa.org
Secretary-General
Currently	Marcin Czepelak[3]
Since	2022[3]

The Permanent Court of Arbitration (PCA) is a non-UN intergovernmental organization headquartered at the Peace Palace, in The Hague, Netherlands. Unlike a judicial court in the traditional sense, the PCA provides administrative support in international arbitrations involving various combinations of States, State entities, international organizations and private parties.^[4] The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The PCA is constituted through two separate multilateral conventions^[5] with a combined membership of 124 Contracting Parties.^[1] The PCA is not a United Nations agency,^[6] but has been a United Nations observer since 1993.^[7]

The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference of 1899.^[8] The Conference had been convened at the initiative of emperor Nicolas II of Russia “with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments.”

The PCA's headquarters, the Peace Palace, was built from 1907 to 1913 to house the Permanent Court of Arbitration.^[9][10]

The PCA is not a court in the conventional understanding of that term but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation.^[11]

The Administrative Council (formally the Permanent Administrative Council) is a body composed of all the diplomatic representatives of the Contracting Parties accredited to the Netherlands.^[12] It is presided by the Minister of Foreign Affairs of the Netherlands, who is also a Contracting Party.^[13] It is responsible for the "direction and control" of the International Bureau, directs the organisation's budget and reports on its activities.^[13]

The International Bureau is the Secretariat of the PCA and is headed by the Secretary-General. It provides linguistic, research, administrative and financial support to PCA arbitration tribunals.^[14]

The third organ of the PCA are the Members of the Court. Each Contracting Party may appoint up to four persons "of known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators" for a renewable 6-year term. In addition to forming a panel of potential arbitrators, the Members of the Court from each Contracting Party constitute a “national group,”^[15] which is entitled to nominate candidates for the election to the International Court of Justice.^[15] The Members of the Court (along with the judges of the International Court of Justice) are among a handful of groups entitled to nominate candidates for the Nobel Peace Prize.^[15]

Parties to a dispute may, but are not obliged to, select arbitrators from the list of the Members of the Court.

The PCA sometimes gets confused with the International Court of Justice, which also has its seat in the Peace Palace.^[16] The PCA is not part of the UN system,^[17] holding observer status in the UN General Assembly since 1993.^[18][19]

In the Articles 30–57 of the Hague Convention of 1899 the rules of arbitration procedure are outlined. These rules are an adapted version of pre-existing treaties among the states. They were amended in 1907, the creation of a summary procedure for simple cases being the most conspicuous change, and were relevant in the 1920s development of rules for the Court of International Justice.

The first act of parties before the PCA is the submission of the so-called "compromisis", stating the issue and the competence of the arbitrator(s). Proceedings are then conducted in two phases: written pleadings and oral discussion. The Court retires once the debate is over to deliberate and conclude the case by a simple majority of votes.

The decision is published as an award, along with any dissenting opinions. Early Court decisions were countersigned by the arbitrators themselves, but in 1907, that responsibility was passed to the president and secretary (of the PCA). The award is read in a public session in the presence of the agents and lawyers of the parties to the case. The decision is binding on the parties, and there is no mechanism for appeal.^[20]

Between 2007 and 2008, the budget was €1.8 million.^[21]

The budget of PCA comes from the contributions of its Contracting Parties and income through arbitration cases. The distribution of the amounts to be paid by the individual Contracting Parties is based on the system in use by the Universal Postal Union.^[12]

Parties to arbitration have to pay the expenses of the arbitral tribunal set up to hear the case, including the salary of the arbitrators, registry and administrative functions, but not including overheads of the organization.^[22][23] The costs of arbitration vary from case to case and discussions may be held between the PCA and the parties over fee arrangements.^[24]

The fixed costs for action as an appointing authority are €3000.^[25]

Parties to the Convention on the Pacific Settlement of disputes of 1899 (71 Parties) and 1907 (101 Parties) are automatically parties to the PCA. As 51 are parties to both conventions, the PCA has 122 Contracting Parties: 120 members of the United Nations, as well as Kosovo and Palestine.^[1]

The PCA is the oldest institution for international dispute resolutions. It was established in 1899 by the first Hague Peace Conference under Articles 20 to 29 of the 1899 Hague Convention for the Pacific Settlement of International Disputes. At the second Hague Peace Conference, the earlier Convention was revised by the 1907 Convention for the Pacific Settlement of International Disputes. The Conference was convened at the initiative of emperor Nicholas II of Russia "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments".^[26]

The current Secretary-General of the PCA is Dr. Hab. Marcin Czepelak, who was elected on 14 February 2022 by the PCA Administrative Council for a term of 5 years (from 1 June 2022 until 31 May 2027).

The below table lists all the Secretaries-General who have served the PCA since its founding.

PCA tribunals have jurisdiction for disputes based on the PCA founding documents (the Conventions on Pacific Settlement of International Disputes), or based on bilateral and multilateral treaties. Its Secretary General furthermore acts as an appointing authority for arbitration.

When problems arise in designating arbitrators for an arbitration under UNCITRAL arbitration rules (e.g. because one of the parties refuses to designate an arbitrator, or when the designated arbitrators are unable to agree on designation of a third arbitrator), the PCA Secretary-General may be requested to serve as an appointing authority. This option is also open for other arbitration agreements, in which the Secretary General is designated.^[27] Between 2011, and 2015, 257 of such requests were submitted.^[2]

Arbitration between two states takes place when two member states of the PCA decide to submit a dispute for arbitration to a PCA Tribunal. The Tribunal consists of five arbitrators: two (one of whom may be a national of the party concerned) are selected by each party to the arbitration; these four arbitrators then choose the fifth and presiding arbitrator.^[28]

The United Nations Convention on the Law of the Sea (UNCLOS) provides for a dispute resolution mechanism regarding maritime boundaries in which member states can choose either the

1. International Tribunal for the Law of the Sea
2. International Court of Justice,
3. arbitral tribunal (constituted in accordance with Annex VII, UNCLOS)^{[citation needed]}
4. a special arbitral tribunal (constituted in accordance with Annex VIII).

If two member states have elected different dispute resolution measures, the third option is to be used.^[29] As of August 2016, the PCA has administered twelve of the thirteen cases initiated by states under Annex VII to the UNCLOS.^[30][31]

Many free trade agreements provide for a mechanism to resolve disputes between investors and states through arbitration through so-called investor-state dispute settlement (ISDS) clauses. The PCA may play a role in such proceedings as appointing authority for arbitrators, by use of its arbitration rules or by providing support to the arbitration case.^[32]

Examples of cases are shown below:

Interstate

• United States of America v. Mexico (Pious Fund of the Californias) (1902)
• United States of America v. United Kingdom (The North Atlantic Coast Fisheries Case) (1910)^[33]
• France v. Great Britain (Savarkar Case) (1911)
• United States of America v. The Netherlands (Island of Palmas Case) (1928)
• Eritrea v. Yemen (Hanish Islands conflict) (1999)
• Belgium v. The Netherlands (Iron Rhine case)^[34] (2005)
• Croatia v. Slovenia (2017)

Interstate: Annex VII UNCLOS

• Barbados v. Trinidad and Tobago (2006)
• Bangladesh v. India (Bay of Bengal Maritime Boundary)^[35] (2014)
• Denmark in respect of the Faroe Islands v. European Union (Atlanto-Scandian Herring Arbitration) (2014)^[36]
• Mauritius v. United Kingdom (Chagos Marine Protected Area) (2015)
• Philippines v. China (2016)
• Netherlands v. Russia (MV Arctic Sunrise) (2017)^[37]
• Italy v. India (Enrica Lexie case) (2020)

Investor-state

• Hulley Enterprises Limited (Cyprus), Yukos Universal Limited (Isle of Man) and Veteran Petroleum Limited (Cyprus) v. the Russian Federation^[38] (2015)
• Cairn Energy PLC & Cairn UK Holdings Limited v. The Republic of India^[39]

Other

• United States v. Iran (Iran-United States Claims Tribunal) in the early 1980s the PCA helped set up the claims tribunal^[40]
• Eritrea v. Ethiopia (Eritrea-Ethiopia Claims Commission) (2009) Claims Commission was organized through the PCA
• Sudan v. Sudan People's Liberation Movement (Abyei Arbitration) (2009)

• Ligue internationale de la paix
• International arbitration
• International Court of Justice
• International Court of Arbitration

• Hudson, Manley O. (June 1943). "Chapter 1. The Permanent Court of Arbitration". The Permanent Court of International Justice 1920-1942 (A Treatise). New York: The Macmillan Company. pp. 3–36 Sections 1–32. – The relevant chapter includes information about a number of cases referred to the Permanent Court of Arbitration.

Wikimedia Commons has media related to Permanent Court of Arbitration.

• PCA website
  • Conventions regarding establishment of PCA^{[permanent dead link]}
  • List of linked PCA cases
• Hague Justice Portal