A/CN.4/SER.A/1957/Add.l YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1957 Volume II Documents of the ninth session including the report of the Commission to the General Assembly UNITED NAT.ONS YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 1957 Volume II Documents of the ninth session including the report of the Commission to the General Assembly UNITED NATIONS New York, 1958 NOTE Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document. A/CN.4/SER.A/1957/Add.l September 1957 UNITED NATIONS PUBLICATION Sales No.: 1957. V. 5, Vol. II Price: $(U.S.) 1.75; 12/6 stg.; Sw.fr. 7.50 (or equivalent in other currencies) CONTENTS ARBITRAL PROCEDURE (agenda item 1) Page Document A/CN.4/109: Draft convention on arbitral procedure adopted by the Commission at its fifth session: report by Georges Scelle, Special Rapporteur (with a "model draft" on arbitral procedure annexed) 1 LAW OF TREATIES (agenda item 2) Document A/CN.4/107: Second report by G. G. Fitzmaurice, Special Rapporteur 16 CONSULAR INTERCOURSE AND IMMUNITIES (agenda item 4) Document A/CN.4/'108: Report by Jaroslav Zourek, Special Rapporteur .... 71 STATE RESPONSIBILITY (agenda item 5) Document A/CN.4/'106: International responsibility: Second report by F. V. Garcia Amador, Special Rapporteur 104 REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY Document A/3623: Report of the International Law Commission covering the work of its ninth session, 23 April-28 June 1957 131 LIST OF OTHER DOCUMENTS PERTAINING TO THE NINTH SESSION OF THE COMMISSION BUT NOT REPRODUCED IN THIS VOLUME 147 111 INTERNATIONAL LAW COMMISSION DOCUMENTS OF THE NINTH SESSION, INCLUDING THE REPORT OF THE COMMISSION TO THE GENERAL ASSEMBLY ARBITRAL PROCEDURE [Agenda item x] DOCUMENT A/CN.4/109 Draft convention on arbitral procedure adopted by the Commission at its fifth session Report by Georges Scelle, Special Rapporteur (with a "model draft" on arbitral procedure annexed) [Original text: French] [24 April 1957] Chapter Paragraphs Page I. GENERAL OBSERVATIONS 1—16 1 II. CONSIDERATION OF THE COMMENTS OF GOVERNMENTS 17—80 4 A. Observations on the main articles of the draft 17—71 4 1. The undertaking to arbitrate 17—21 4 2. Order of the articles 22—23 4 3. The compromis 24—26 4 4. Arbitrability of the dispute 27—35 5 5. Constitution of the arbitral tribunal 36—39 6 6. Immutability of the tribunal 40—48 7 7. Powers of the tribunal 49—64 7 8. Force of the award 65—71 9 B. Objections hardly to be entertained 72—80 10 1. Interpretation 73—75 10 2. Annulment of the award 76 10 3. Revision 77—80 11 III. CONCLUSIONS 81—83 11 Annex. MODEL DRAFT ON ARBITRAL PROCEDURE 12 CHAPTER I Mr. Lauterpacht, who was then Rapporteur to the Com- mission.2 General observations 2. This draft which was submitted to the General Asse mb at nth session 955) ia 1. Arbitral procedure, which was selected by the Inter- 1 Jy , *f * , ^ > accordance with national Law Commission at its first session, in 1949, as artlcle 22 of *« Commissions Statute was prepared with due re ard to e one of the items accorded priority for codification, has u S * observations received from Governments been the subject of progressive study: in 1952, the Com- at the ^ a"d was ?he s*>J«*of valuable detailed com- mission at its fourth session adopted a draft containing ments «* the Secretariat of the Commission (A/CN.4/92). thirty-two articles, which was transmitted by the Secretary- 3- After consideration by the Sixth Committee, the General to Governments for their comments1; in 1953, at draft was a8ain referred by the General Assembly to the its fifth session, the Commission adopted the final draft, International Law Commission for further study, in the also containing thirty-two articles, with a commentary by light of the Assembly's deliberations and of other obser- vations received from Governments. The General Assem- Official Records of the General Assembly, Seventh Session, Supplement No. 9, chap. II. * Ibid., Eighth Session, Supplement No. 9, para. 57. Yearbook of the International Law Commission, Vol. II bly, therefore, did not accept the International Law Com- regarded as necessary for a fruitful discussion of a draft mission's recommendation, based on paragraph 1 (c) of convention, would probably be difficult to find. The article 23 of its Statute, that the Assembly should recom- addition of new members to the United Nations since mend its Members to conclude a convention based on the 1955 is unlikely to have much effect on the General draft. Assembly's views. 4. Resolution 989 (X), adopted by the General Assem- 7. These views may be briefly summarized as follows: bly on 14 December 1955, reads as follows: The Commission's draft would distort traditional arbitration practice, making it into a quasi-compulsory jurisdictional " The General Assembly, procedure, instead of preserving its classical diplomatic Having considered the draft on arbitral procedure character, in which it admittedly produces a legally binding, prepared by the International Law Commission at its but final, solution, while leaving Governments considerable fifth session and the comments thereon submitted by freedom as regards the conduct and even the outcome Governments, of the procedure, both wholly dependent on the form of Recalling General Assembly resolution 797 (VIII) of the compromis. The General Assembly took the view that 7 December 1953, in which it was stated that this draft the International Law Commission had exceeded its terms includes certain important elements with respect to the of reference by giving preponderance to its desire to pro- progressive development of international law on arbitral mote the development of international law instead of procedure, concentrating on its primary task, the codification of custom. Noting that a number of suggestions for improve- ments on the draft have been put forward in the com- 8. While recording these facts very objectively, the ments submitted by Governments and in the observa- Special Rapporteur is somewhat relieved to note from the tions made in the Sixth Committee at the eighth and comments on the 1953 draft that several Governments of current sessions of the General Assembly, States with a long democratic tradition and a constant concern for juridical correctitude were, with certain minor Believing that a set of rules on arbitral procedure will reservations, favourably disposed to the adoption of the inspire States in the drawing up of provisions for in- draft in both its letter and spirit (see, in particular, the clusion in international treaties and special arbitration observations of Canada, Denmark, Greece, the Nether- agreements, lands especially Sweden, the United Kingdom and the 1. Expresses its appreciation to the International United States of America). The enthusiastic and full Law Commission and the Secretary-General for their approval accorded the draft by Professor de Arechaga, 3 work in the field of arbitral procedure; who was consulted by the Government of Uruguay, and by the representative of Pakistan, Mr. Brohi,4 should also 2. Invites the International Law Commission to con- be noted; both of the Governments concerned had clearly sider the comments of Governments and the discussions sensed the attunement of the draft to the conciliatory in the Sixth Committee in so far as they may contribute spirit of the United Nations Charter (Articles 33 et seq.) further to the value of the draft on arbitral procedure, and its progressive character. But the fact must be faced and to report to the General Assembly at its thirteenth that the attitude of the Governments of States that have session; newly acquired sovereignty, or of those deeply imbued 3. Decides to place the question of arbitral proce- with the dogma of State sovereignty—particularly of the dure on the provisional agenda of the thirteenth session, group of Soviet States that coalesced against the draft and including the problem of the desirability of convening carried the decision—or of certain American States, has an international conference of plenipotentiaries to con- remained steadfastly unshakeable, and will probably be clude a convention on arbitral procedure." maintained at the General Assembly's next session, which will be attended by representatives of eighty-one Member 5. It is clear from resolution 989 (X), which was States. adopted in pursuance of article 23, paragraph 2, of the Commission's Statute, that the General Assembly, although 9. We should be the last to deny that the draft submitted believing that a set of rules on arbitral procedure was by the Special Rapporteur and elaborated by a majority— likely to inspire States " in the drawing up of provisions albeit a slight majority—of the Commission, clearly tends for inclusion in international treaties and special arbitration towards a juridical and jurisdictional concept of arbitration, agreements ", expressed no view as to the desirability of although leaving the institution its independence and its convening a conference of plenipotentiaries to conclude a purely voluntary character. There is no question of making convention, and left a decision on that point to its it, as some of its opponents have suggested, into a kind thirteenth session, which was at liberty to declare for some of first instance subject to appeal to the International other solution—for example, the preparation of a " model Court of Justice. The sole purpose of providing for purely draft" on arbitral procedure, as had indeed been pro- external action by the Court is to cope with the deadlocks posed by some members of the Sixth Committee. which frequently arise in the traditional procedure and the effect of which—it can scarcely be denied—has sometimes 6.