Arbitration and Public International Law; An analysis of their inter- relation
1. INTERNATIONAL LAW
In the long march of mankind from cave to the computer a central role has always been played by the idea of law- the idea that order is necessary and chaos inimical to a just and stable existence. Every society whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done and what cannot be done has been expressly spelt out within the consciousness of that community.
Law is that element which binds the members of the community together in adherence to recognized values and standards. Law consists of a series of rules regulating behaviour and reflects to some extent the ideas and preoccupations of the society within which it functions.
One such law is international law, where the principal subjects to such law are nation states and not individual citizens. International law is itself divided into conflict of laws (or private international law) and public international law (usually termed as international law). The former deals with those cases, within particular legal systems, in which foreign elements obtrude raising questions as to application of foreign law or the role of foreign courts.
1.1 PUBLIC INTERNATIONAL LAW: An Understanding
Public International Law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of many international institutions. It may be universal or general, in which case the stipulated rules bind all the states, or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them. For effective implementation of the legal regime in domestic law, there exists a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and accepting system of enforcing those laws. Without legislature, executive and judiciary, it would seem that the existence of legal order would not be possible.
International law does not fit this model. International law has no legislative body. The General Assembly of United Nations consisting of delegates from all member states exist, but its resolutions are not legally binding save for certain organs of United Nations for certain purposes. The International Court of Justice does exist but it can decide cases when both the parties agree and it cannot ensure that its decisions are complied with. Above all there is no executive or governing entity. The Security Council of the United Nations, which was have the role in a sense, has at times been effectively constrained by the veto powers of the five permanent members, viz., U.S.A, USSR( now the Russia federation), China, France and United Kingdom. Thus, if there is no identifiable institution either to establish rules, or to clarify them or to see that those who break the law are punished, the realization of such law becomes tricky.
The settlement of disputes between states by judicial action is only one facet of the enormous problem of the maintenance of international peace and security. In the period of United Nations Charter the use of force by individual states as a means of settling disputes is impermissible. Peaceful Settlement is the only available means. However, there is no obligation in general international law to settle disputes, and procedures for settlement by formal and legal procedures rest on the consent of the parties.
Unlike, the legal structure in most primitive societies is hierarchical and authority is vertical, international law system has a horizontal legal structure, consisting of independent states, all equal in legal theory (possessing the character of sovereignty) and recognising none in authority over them. International law is primarily formulated by international agreements which create rules binding upon the signatories, and customary rules, which are basically state practices recognised by the community at large as laying down the patterns of conduct that have to be complied with.
1.2 ALTERNATE DISPUTE RESOLUTION
International law aims for harmony and the regulation of disputes. It attempts to create a framework, no matter how rudimentary, which can act as a kind of shock- absorber clarifying and moderating claims and endeavouring to balance interests. In addition, it sets out a series of principles declaring how states should behave.
In both national and international legal history, the mature judicial process develops out of relatively informal administrative and political procedures. International practice has long included Alternative Dispute Resolution mechanism for settlement of disputes between national states as well as individuals. Methods like arbitration, negotiation and good offices, and mediation as informal methods for settlement of disputes
In context of International Law, a dispute is defined as “a disagreement on the point of law or fact, a conflict of legal views or interests between two persons.” In an international dispute, the dispute must be between States. In a case of a wrong done to a national of one State, it does not become an international dispute until it is taken up by the Government of the State of the injured national. Secondly, the dispute must lead to some action by the aggrieved State. Thirdly, the dispute must relate to a reasonably well- defined subject matter.
1.2.1 The method of settlement of disputes is divided into two categories:-
(ii) Forcible or compulsive means of settlement.
Pacific means of settlement of disputes are as follows:
Ø Negotiation: The parties arrive at an agreed settlement themselves.
Ø Mediation: The parties are assisted to reach a settlement agreeable to them both by a neutral third party. The third party is known generically as a 'neutral', or more specifically as a mediator. The word is used by some to specifically refer to a system where the parties are encouraged to settle with each other. Others confine the term to systems where the neutral makes a non-binding recommendation which the parties are solicited to accept as the settlement. Mediation is used by some synonymously with Conciliation. Others confine the use of each word to describing one of the above systems. Unfortunately there is no generally accepted usage and either word may refer to either set of system refer to either set of systems (or both).
Ø Mini-Trial: The case is presented in at a highly simplified 'mock' trial. The tribunal typically consists of a senior representative from each side who has not previously been involved with the dispute and an external chairman. Such an informal probing of the strengths and weaknesses of the case will often allow the parties' representatives to settle the dispute.
Arbitration is a pacific means of settlement of disputes between States in the International scenario and is binding between the parties to which the arbitration proceedings apply.
1.2.2 Advantages and Disadvantages of arbitration as a method of settling international disputes
· Freedom to Choose a Neutral and Competent Decision maker:
One of the most valued features of international arbitration is thus the parties’ ability to choose their arbitrators constitution the tribunal, and thereby ensuring that their dispute is heard by a tribunal that they trust, that they consider to be independent, impartial and competent in the relevant subject-matter and that they know has the required availability. Where a high level of technical competence is required, the parties will select arbitrators that are known to have that competence.
Several features of international arbitration favor speedy proceedings. First and foremost, unlike court decisions, arbitral awards are final and not subject to appeal, international arbitration in principle ends with a final award.
International arbitrations have, despite these features, become increasingly lengthy, for a variety of reasons:
a) complexity of the dispute submitted to arbitration
b) While the parties and the tribunal are free to determine the procedure they wish to follow, it has become almost customary for them to agree on a fairly lengthy procedure.
While the cost of arbitration was also traditionally considered an advantage of arbitration over litigation, that judgment is today being revised. International arbitration have grown more and more complex and, accordingly, expensive.
Certain costs arising in connection with international arbitration proceedings are inevitable in any international dispute: witnesses often reside in different countries and do not always speak the same language. Similarly, documents are often located in several countries and written in several languages. Thus the parties arbitrating usually have to bear the resulting travel and translation costs.
The desire to keep a dispute and its resolution confidential frequently plays an important role in a party’s decision to agree to arbitration. Indeed, arbitral proceedings are private and, unlike court proceedings, are not part of the public record.
· Absence of Appeal
International arbitral awards are final and cannot be appealed, at least in the vast majority of countries. There remains a very limited scope for judicial review of arbitral awards in the context of a judicial procedure to set aside or to vacate an award.
Since arbitration is essentially a consensual procedure, it has certain advantages over other pacific means of settlement of disputes. As pointed out by Starke, “There will always be a place for arbitration in the relation between the States. Arbitral procedure is more appropriate than judicial settlement for technical disputes are less expensive, while if necessary, arbitration can be conducted without publicity, even to the extent that the parties can agree that the award be not published. Lastly, arbitral procedure is flexible enough to be combined with the fact - finding processes which are availed of in the case of negotiation, mediation, good offices, conciliation and enquiry
2. ARBITRATION AS AN ADJUDICATORY ALTERNATIVE DISPUTE RESOLUTION MECHANISM
The various attempts to define arbitration have sought to reflect the evolving general understanding and essential legal forms of arbitration. According to the Oxford English Dictionary, it is simply defined as “Uncontrolled decision” or “The settlement of a question at issue by one to whom the parties agree to refer their claims in order to obtain an equitable decision.”
Arbitration is a form of alternative dispute resolution (ADR), it is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.
In its origin the concept of arbitration is a simple one. The parties who are in dispute agree to submit their disagreement to a person whose expertise or judgment they trust. They each put their respective cases to this person – ‘arbitrator’, who listens, considers the facts and the arguments, and then makes a decision. This decision is final and binding on the parties; and it is binding because the parties have agreed that it should be, rather than because of the coercive power of any State. Arbitration, in short, is an effective way of obtaining a final and binding decision on a dispute or series of disputes, without reference to the court of law.
Article 15 of the Hague Convention of 1899 provides:
“International arbitration has for its object the settlement of differences between States by Judges of their own choice on the basis of a respect for law”. This definition emphasises two elements –
(i) Consent of parties to arbitration ; and
(ii) Settlement on the basis of respect for law.
International arbitration has become the principal method of resolving disputes between states, individuals and corporations in almost every aspect of international trade, commerce and investment. The established centres of arbitration report increasing activity, year on year; new arbitration centres have been setup to catch this wave of business; states have modernised their laws so as to be seen to be ‘arbitration friendly’; conferences and seminars proliferate and the distinctive law and practice of international arbitration has become a subject of study.
The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense where the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in public interest.
2.1 Agreement to Arbitrate
The foundation stone of modern international arbitration is an agreement between the parties to submit to arbitration any dispute or differences between them. Before there can be a valid arbitration, there must be a valid agreement to arbitrate.
Historically, there were two types of arbitration agreement. The first which is still very commonly used, is an arbitration clause in a contract, which is when parties mutually agree to refer any dispute which may arise in future to arbitration. The second type of agreement is one made after the dispute has actually arisen. This is the so- called ‘submission agreement’ and is usually more detailed than an arbitration clause.
These two traditional types of arbitration agreements have now been joined by a third. This is an ‘agreement to arbitrate’ which is deemed to arise under international instruments. This agreement in effect constitutes a ‘standing offer’ by the State concerned to resolve any such disputes by arbitration.
2.2 Arbitration and Public International Law
The practice of arbitration evolved as a sophisticated procedure similar to judicial settlement. Modern arbitration began with the Jay Treaty of 1794 between United States and Great Britain, which provided for adjudication of various legal issues by mixed commissions and credited with averting war resolving some issues remaining since the Treaty of Paris, 1783, which ended the American Revolution and allowed ten or more years of mostly peaceful trade between United States and Great Britain in the midst of French Revolutionary Wars that had begun in 1793.
The popularity of arbitration increased considerably after the Alabama Claims arbitration of 1872 between the United States and Great Britain which took place in Geneva in 1871-72.A dispute between United States and United Kingdom arose because United Kingdom had permitted the Alabama and her supply ship, Georgia, to be built in a British yard and delivered to Southern States during the American Civil War. The US claimed that this was a breach of neutrality. The next important event was adoption of Hague Convention of 1899, wherein international law relating to arbitration was codified. In this early stage of experience arbitral tribunals were often invited by the parties to resort to ‘principles of justice and equity’ and to propose extra-legal compromises. However, by the end of the century, arbitration was primarily if not exclusively associated with a process of decision according to law and supported appropriate procedural standards.
2.3 Permanent Court of Arbitration
On 29 July 1899, the sovereign powers meeting in The Hague at what was to become known as the First Hague Peace Conference, adopted a 'Convention for the Pacific Settlement of International Disputes'. This Convention established the Permanent Court of Arbitration: the first global mechanism for the settlement of disputes between states. The 1899 Convention was revised in October 1907 as a result of the Second Hague Peace Conference. The texts of both Conventions are available free of charge, in both English and French, from the International Bureau of the Permanent Court of Arbitration.
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.
The nature of disputes where Arbitration is employed as a method of alternate dispute resolution has been wide-ranging in the recent past. The caseload is plenty and includes a plethora of disputes, encompassing territorial, treaty, and human rights disputes between states, as well as commercial and investment disputes, including disputes arising under bilateral and multilateral investment treaties.
The oscillating nature of disputes reflects the breadth of Permanent Court of Arbitration involvement in international dispute resolution. Between 1900 and 1920 the Permanent Court of Arbitration was the major organization for arbitration. The basis of the ‘Court’ is a panel of arbitrators to which parties may nominate a maximum of four persons. When the parties to the Convention agree to submit a dispute to the Permanent Court of Arbitration, each appoints two arbitrators from the panel and the four arbitrators select an umpire. Thus a tribunal is constituted to hear a particular case.
The PCA can assist in the selection of arbitrators, and may be called upon to designate or act as appointing authority.
“…….. The Permanent Court of Arbitration was relative success and in the early years of this century influenced a more frequent recourse to arbitration as a method of settling international disputes while it may be said to have moulded the modern law practice of arbitration.
3. Real World Case studies relating to Arbitration under Public International Law
Since the subject matter of nature of dispute in arbitration in the international scenario is wide ranging, there has been plethora of case laws which has led to the development of many principles in the municipal and international law. Here are a few of the real world case studies analyzed from the point of view of arbitration as a subject matter of International law.
3.1 Trial Smelter Case (United States of America and Canada)
Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “or State has right to use resources how it wants, but has to stop when it starts infringing on rights of other states to use the environment”. Trial Smelter thus became a vital precedent in the field of Environment Law.
The case commenced with a special agreement referred to as the Convention for settlement of difficulties arising from operation of smelter at Trail, B.C., signed between the US and Canada on 15 April 1935. The dispute arose as a result of damage occurring in the territory of the US due to activity of a smelter situated in Canada. The damage arose from sulphur dioxide fumes which were emitted from the smelter. The said fumes from the smelter were carried downriver several miles to Washington State, were it caused a nuisance (pollution) and crops were damaged. It was claimed that the height of stacks increased the area of damage in the US. In 1927 the US proposed that the matter be referred to the International Joint Commission for investigation. Its report was presented in 1931. It determined that up to 1 January 1932 the damages incurred by the US should be compensated in the sum of US $350,000.
3.1.2 The Award
On 16 April 1938 the Tribunal gave its decision in the first and fourth questions. It found that damage had been caused in US territory by the Trail Smelter since 1 January 1932 up to 1 October 1937 and that the indemnity to be paid for the damage was US $78,000 as the complete and final indemnity and compensation for all damage which occurred between such dates. The Tribunal postponed a final decision on the remaining questions and on the existence of damage, if any, and the indemnity to be paid occurring after 1 October 1937 to a later date to enable further studies to be conducted to determine an appropriate regime to be set up. On 11 March 1941 the Tribunal gave its final decision on the remaining questions. The Tribunal needed to determine whether the Trail Smelter should be required to refrain from causing damage in the US in the future. It observed that no case of air or water pollution dealt with by an international tribunal had been brought to its attention. It therefore would rely on decisions of the Supreme Court of the United States which could be taken as a guide in the field of international law in so far as they had dealt with controversies between the various federal states of the US.
The Tribunal held that these decisions provided an adequate basis for holding that under the principles of international law, as well as the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.
The Tribunal found therefore that Canada was responsible in international law for the conduct of the Trail Smelter. It had a duty to see to it that conduct was in conformity with Canada’s obligations under international law. Accordingly the Trail smelter would be required to refrain from causing any damage through fumes in the US. The Tribunal decided, finally, that, to prevent future damage, a regime of control, which it stipulated, would be applied to the operations of the Smelter.
All things considered, although, Trial Smelter has played an important role in influencing the development of international environment law, its influence on the law of state responsibility- although extant – is less catalytic.
3.2 Baglihar Project Arbitration (India – Pakistan) : India and Pakistan's 14 year dispute over the Baglihar hydroelectric project
The Baglihar Hydropower Project (BHP) was undertaken on the River Chenab in Doda, 160 km north of Jammu. India had decided to set up a run-of-river, 450MW hydroelectric plant at Baglihar in its Jammu & Kashmir State, utilizing the waters of river Chenab, a tributary of the mighty Indus. Since the time that India informed Pakistan of that fact in 1992, the two countries had gone through prolonged negotiations, based on Pakistan's objections to the project as the lower riparian state.
To understand the imbroglio, it is necessary to look at the bigger picture. The Indus river system, one of the major systems in the world, comprises the main Indus and its five important tributaries: Jhelum, Chenab, Ravi, Beas and Satluj rivers. For the sake of convenience and geography, Indus, along with Jhelum and Chenab, are referred to as the 'Western rivers', while the other three tributaries are termed 'Eastern rivers'. The common features of all of them is that they originate in the Himalayas, pass through Indian territory and, after Indus has received the waters of its five tributaries in Pakistan, it flows through Pak provinces of Punjab and Sind and falls in the Arabian Sea, south of Karachi.
A temporary accord was signed between the two Countries in 1948 to regulate the usage of the Indus System. This was followed by prolonged negotiations for a more durable settlement. However, by 1951, there was an impasse in those talks. Realising the importance of the matter, under the supervision of the World Bank after many years of negotiation India and Pakistan signed the Indus Water Treaty on 19 September 1960. Its signatories were the governments of India and Pakistan and the World Bank. Incidentally, it was the first time that the World Bank had intervened to settle an international river waters dispute.
The Treaty's main provisions included the following:
1. The usage of waters of the three Eastern Rivers was given exclusively to India.
2. The usage of waters of the three Western rivers was given exclusively to Pakistan. However India, as the upper riparian state, was allowed a restrictive use of their waters for domestic, agriculture, 'non-consumptive' and hydro generation purposes. One of these three rivers was Chenab.
3. To replace the loss of waters as at (1) above, Pakistan was to construct a system of 'replacement works', to be funded internationally.
4. To oversee implementation of the Treaty, a Permanent Indus Commission was to be set up, to meet periodically. It comprised one Commissioner each from the two countries, appointed by their respective governments.
3.2.2 Baglihar project: Objections raised by Pakistan
Pakistan had raised objections to the project after India gave notice of undertaking it way back in 1992. These were raised more vehemently subsequent to the construction contract being signed in 1999. Referring to them, Syed Shahid Husain, a former Secretary in Pakistan's Ministry of Water & Power, explained in an article in South Asian Journal (April- June 2005 issue): “The basic dispute between the two Governments arises more out of mistrust by Pakistan of India's intention because, at some point in future, once it acquires the capacity to store water, India can easily withhold it during shortage and release it during excess, the precise opposite of what the lower riparian state would want. India answers to the Pakistan fears by saying that the first installation which would disappear would be [India's] Salal project, which is downstream [of] the Baglihar project, and if they were to flood Pakistan, they would endanger Salal project”
3.2.3Differences over the scheme
Extensive Discussions and negotiations stretched through many years led to a crystallisation of the differences between the two countries. The main points of dispute related to the design of the project, the extent of pondage to be created by it, and the necessity and placement of the spillway gates on the dam. Pakistan asserted that all the three are in violation of the provisions of the Treaty which deals with new run-of-river power plants to be set up by India on any of the Western rivers. These differences between the two countries are examined as under:
(1) As per the Treaty, the works at such a project shall not be capable of raising the water level in the operating pool artificially above the 'Full Pondage Level' specified in the design. The maximum pondage in the operating pool shall not exceed twice the pondage required for firm power. However, the design shall take due account of the requirements of Surcharge storage and of secondary power. Pakistan feels that the planned pondage of 37.7mcm in the project is violative of the Treaty provisions. India denies this based on its own calculations. Full Pondage Level is defined in the Treaty as the level corresponding to maximum pondage allowed under it. Pakistan asserts that in the Baglihar design, the space between the maximum water-level and top of the dam is unduly large and would enable India to have a greater storage than full pondage level. India says that this space, known as FreeBoard is for safety reasons and any misuse by it to store more water would be against dam safety and thus counter-productive.
(2) The Treaty provisions also regulate the setting up of outlets in the dam. Any such outlet, if considered necessary for technical reason shall be of minimum size and located at the highest level consistent with design and operational parameters. Thus, where gated spillway is considered necessary in the context of the conditions at the plant-site, the bottom level of the gates (in normal closed position) shall be located at the highest level 'consistent with sound and economical design and satisfactory construction and operation of the works'. Baglihar design includes six submerged radial gates on the main spillway and 2 crest radial gates on the chute spillway. Pakistan objects to their number and placement as being violative of the above provisions. India has responded through detailed technical calculations to assert that it is doing what the Treaty allows.
(3) As per the Treaty, the water intakes for the turbines shall be located at the 'highest level consistent with satisfactory and economical construction and operation' of the run-of-river plant and 'with customary and accepted practice of design for the designated range of the Plant's operation'. This being generalised terms, each side has interpreted the existing Baglihar design to suit its own case.
Pakistan had also wanted India to stop further construction on Baglihar project until their differences were finally settled. India declined this for various reasons, including the fact that there were no provisions in the Treaty for such a stoppage. All that was required under the Treaty was for India to intimate to Pakistan, at least six months before beginning its construction, the location of the proposed plant along with a set of technical data specified in the Treaty.
3.2.4 Dispute Resolution:
The first structured discussion between the two countries on Baglihar took place in May 2000 at the 84th meeting of the Permanent Indus Commission. Further discussions and exchange of letters not having yielded results, in May 2003 Pakistan gave notice to move the World Bank for appointment of a neutral expert, as provided under the Treaty. India responded with a request for bilateral discussions. Pakistan put forward three pre-conditions in August 2003 for doing this: (a) stoppage of work at Baglihar, (b) facility to it to make a site-inspection and, (c) a time-bound resolution of the differences between the two sides.
These were discussed in yet another round of meetings, both at technical and official levels. The last such meeting was held in the first week of January 2005 between the two Governments at Secretary-level. While India thought that progress was being made, this view was not shared by its neighbour. Thus on 15 January 2005, Pakistan formally moved the World Bank for the appointment of a 'Neutral Expert' to decide on the differences between the two Countries regarding the Baglihar project.
After examining the previous correspondence on the subject (to satisfy itself that the two sides had taken all preliminary steps) and in consultation with both Governments, the World Bank in May 2005 decided in favour of appointing such an expert. Its choice fell on Prof. Raymond Lafitte, a Swiss Civil Engineer, then working on the faculty of Swiss Federal Institute of Technology at Lausanne.
In October 2005, Lafitte paid a visit to India to view the project site in Baglihar. Apart from the Indian side, a delegation from Pakistan's Ministry of Water & Power accompanied Lafitte. That enabled him to closely question the two parties on the issues raised and to understand them. He also visited the Indian Institute of Technology at Roorkee, north of Delhi, where a live and scale model of Baglihar project had been set up in a laboratory.
During 6-8 November 2006, Lafitte met both sides again in Washington, DC, prior to the finalisation of his report. The report, after being signed by him, was then submitted the World Bank (which had appointed him).
During the 18 months period after his appointment, the NE held 5 meetings – in Paris, Geneva, London, Paris & Washington and also visited the Baglihar site and its hydraulic model at Roorkee. The Parties made written and oral submissions during the course of the Expert Determination.
Prof. Raymond Lafitte, the Swiss expert, upheld three of six objections Pakistan had raised and awarded three to India when he announced his decision on Feb 12, 2007.
The overall design of the Baglihar dam being built by India on the Chenab as a run-of-river plant had been upheld by Prof. Raymond Lafitte, the Neutral Expert (NE) appointed by the World Bank to consider Pakistan’s objections to the Baglihar project, in his decision delivered in Berne given to the representatives of India and Pakistan.
The decision of the NE recognizes India’s right to utilize the waters of the Western Rivers more effectively, within the ambit of the Treaty, for power generation.
The NE’s Final Determination confirms that India’s design has been compliant with the basic principles of the Indus Waters Treaty.
In recent decades, arbitration has grown from a traditional dispute settlement system mostly used in certain countries into one used worldwide both for domestic and even more for international disputes. And the parties relying on arbitration in their contracts and later in their disputes are no more only private enterprises, but also states, state institutions.
The much cited ‘globalisation’ has brought about not only economic but also social and political changes in many countries, as well as regionally and internationally.
International law is the product and legal reflection of state and business practice in the international community. But its rule of law also provides the much needed framework for peaceful cooperation between states, for the effective functioning of the international marketplace.
International arbitration reflects the international community as its political and economic environment, and international law as its legal environment. Their development and progress as well as their challenges have and should have an impact on the development and progress of the codification and practice of international arbitration. Good arbitration practice will have to take that into account.
On the other hand, the growing codification and implementation of international dispute settlement, and particularly of international arbitration, present an important contribution and guidance, if not for a solution, at least for a peaceful and civilised processing of many challenges to today's world community and international law. Arbitration was especially important in the development of international law before the creation of permanent international courts, and has continued to be used in sensitive situations
# C. Cheshire and P. North, Private International Law, 13th edition, London, 1999
# R. Dias, Jurisprudence, 5th edition, London, 1985 and H.L.A Hart, London, The Concept of Law, Oxford, 1961
# Article 17(1) of United Nations Charter and D. Johnson, ‘ Effect of Resolutions of General Assembly of the United Nations’, 32 BYIL, 1955-6, p.97
# Article 36 of the Statue of the International Court of Justice
# UN Charter, Arts. 2(3), 2(4) and 33
# Ian Brownlie, Principles of Public International Law, Oxford University Press, 7th edition
# International Disputes- The Legal Aspect ( Report of a Study Group of the David Davies Memorial Institute of International, (1972), pp. 57-58
# See Mediation
# Dr, S.K Kapoor, International Law and Human Rights, Central Law Agency, 17th edition, 2009
# Hazel Fox, note 2, at p.127
# Oxford English Dictionary 3rd ed. 1969
# Redfern and Hunter on International Arbitration, Oxford University Press, 5th edition
# Hazel Fox, “Arbitration”, Note 2, pp. 101-102
# Section 1, English Arbitration Act, 1996: it includes fair resolution of disputes by an impartial tribunal without unnecessary delay or expense and certain safe guards necessary in public interest have been provided.
# Simpson and Fox, International Arbitration (1959)
# Jean Edward Smith, John Marshall: Definer of a Nation (1998) p. 177
# Todd Estes, The Jay Treaty Debate, Public Opinion, And the Evolution of Early American Political Culture (2006) p.15
# Award: Moore, Arbitrations, i. 653. Great Britain was required to pay 15,500,000 dollars.
# Ian Brownie, Principles of Public International Law, Oxford University Press, seventh edition, 2008
# J.G. Starke, Introduction to International Law, tenth edition (1989) p. 488
# 33 AJIL (1939)
# http://www.unep.org/padelia/publications/Jud.dec. pre(Int .pdf
# Trial Smelter Arbitral Decision, 35 AMERICAN JOURNAL OF INTERNATIONAL LAW 684 (1941)
# as given in its Annexure D, Part 3
# Appendix II to Annexure D of the Treaty
# http://www.indianembassy.org/prdetail796/-- --Baglihar-dam-cleared-by-neutral-expert
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