Summaries of the Work of the International Law Commission
Arbitral procedure
See also: Analytical Guide | Texts and Instruments
At its first session, in 1949, the Commission selected arbitral procedure as one of the topics for codification to which it gave priority and appointed Georges Scelle as Special Rapporteur. The Commission considered this topic at its second, fourth, fifth, ninth and tenth sessions, in 1950, 1952, 1953, 1957 and 1958, respectively. In connection with its work on this topic, the Commission had before it the reports of the Special Rapporteur,1 information provided by Governments2 as well as documents prepared by the Secretariat.3
At its fourth session, in 1952, the Commission, adopted on first reading a draft on arbitral procedure and communicated it to Governments for comment. At its fifth session, in 1953, the Commission adopted the revised draft on arbitral procedure, which was at that time intended as a final draft.4 In its report on the fifth session to the General Assembly, the Commission expressed the view that this final draft, as adopted, called for action on the part of the Assembly of the kind contemplated in article 23, paragraph 1 (c), of the Statute of the Commission, namely, that the draft should be recommended to Member States with a view to the conclusion of a convention; the Commission recommended accordingly.5
The Commission emphasized that the draft had a dual aspect, representing both a codification of existing law on international arbitration and a formulation of what the Commission considered to be desirable developments in the field. Thus the Commission had taken as a basis the traditional features of arbitral procedure in the settlement of international disputes, such as those relating to the undertaking to arbitrate, the constitution and powers of an arbitral tribunal, the general rules of evidence and procedure, and the award of arbitrators. At the same time, the Commission had also provided certain procedural safeguards for securing the effectiveness, in accordance with the original common intention of the parties, of the undertaking to arbitrate. For example, in order to prevent one of the parties from avoiding arbitration by claiming that the dispute in question was not covered by the undertaking to arbitrate, the draft provided for a binding decision by the International Court of Justice as to the arbitrability of the dispute. Similarly, in order to avoid the frustration that might be caused by one party withdrawing its arbitrator, the draft provided for the immutability of the tribunal once it had been formed, except in specified cases. The draft also included provisions for the drawing up of the compromis — an agreement concerning the undertaking to arbitrate and the arrangements for arbitration proceedings, e.g., nomination of arbitrators, the date and place for the proceedings — by the arbitral tribunal in cases where the parties had failed to reach agreement on the subject.6
The draft was considered by the General Assembly at its eighth and tenth sessions, in 1953 and 1955, where it was subjected to considerable criticism, particularly in view of the Commission’s recommendation for the conclusion of a convention on the subject. The Assembly, in resolution 989 (X) of 14 December 1955, noting that a number of suggestions for improvements on the draft had been put forward in the comments submitted by Governments and in the observations made in the Sixth Committee at the eighth and tenth sessions of the General Assembly, invited the Commission to consider the comments of Governments and the discussions in the Sixth Committee in so far as they may contribute further to the value of the draft on arbitral procedure, and to report to the General Assembly at its thirteenth session.
At its ninth session, in 1957, the Commission appointed a committee to consider the matter in the light of the General Assembly resolution. In accordance with the conclusion of the committee, the Commission considered the ultimate object to be attained in reviewing the draft on arbitral procedure, in particular, whether this object should be a convention or simply a set of model rules which States might use, either wholly or in part, in the drawing up of provisions for inclusion in international treaties and special arbitration agreements. The Commission decided in favour of the second alternative. In doing so, the Commission recognized that the draft, as it stood, went beyond what the majority of Governments would be prepared to accept in advance as a general multilateral convention on arbitration. The Commission, however, was of the opinion that the recasting of the draft with a view to attracting the signature and ratification of a majority of Governments would mean a complete revision, involving in all probability an alteration in the whole concept on which the draft was based. In these circumstances, the Commission took the view that it would be preferable to leave the substance of the draft intact and present it to the General Assembly as a set of draft articles which States could use as models in concluding bilateral or multilateral arbitral agreements or in submitting particular disputes to ad hoc arbitration.
At its tenth session, in 1958, the Commission adopted, on the basis of a report by the Special Rapporteur,7 a set of “Model Rules on Arbitral Procedure” followed by a general commentary.8 In submitting the final set to the General Assembly, the Commission recommended that the Assembly by resolution adopt the report.9
With reference to the scope and purpose of the Model Rules, which were intended to apply to arbitrations between States, the Commission observed:
“... now that the draft is no longer presented in the form of a potential general treaty of arbitration, it may be useful to draw attention to the fact that, if the parties so desired, its provisions would, with the necessary adaptations, also be capable of utilization for the purposes of arbitrations between States and international organizations or between international organizations.
In the case of arbitrations between States and foreign private corporations or other juridical entities, different legal considerations arise. However, some of the articles of the draft, if adapted, might be capable of use for this purpose also.”10
After extensive discussions in the Sixth Committee, the General Assembly, in resolution 1262 (XIII) of 14 November 1958, took note of chapter II on arbitral procedure of the Commission’s report on its tenth session; brought the draft articles on arbitral procedure to the attention of Member States for their consideration and use; and invited Governments to send to the Secretary-General any comments they may wish to make on the draft, and in particular on their experience in the drawing up of arbitral agreements and the conduct of arbitral procedure, with a view to facilitating a review of the matter by the United Nations at an appropriate time.
1 See Yearbook … 1950, vol. II, document A/CN.4/18; ibid., 1951, vol. II, document A/CN.4/46; ibid., 1952, vol. II, document A/CN.4/57; ibid., 1957, vol. II, document A/CN.4/109; and ibid., 1958, vol. II, document A/CN.4/113. (see Analytical Guide for individual documents)
2 See Yearbook … 1950, vol. II, document A/CN.4/19; as well as document A/CN.4/68 and Add.1 and 2 incorporated in Yearbook … 1953, vol. II, document A/2456, annex I. (see Analytical Guide for individual documents)
3 See Yearbook … 1950, vol. II, document A/CN.4/35; as well as documents A/CN.4/29, A/CN.4/36 and A/CN.4/92 (United Nations publication, Sales No. 1955.V.1). (see Analytical Guide for individual documents)
4 See Yearbook … 1953, vol. II, document A/2456, para. 57. (see Analytical Guide)
5 See Yearbook … 1953, vol. II, document A/2456, para. 55. (see Analytical Guide)
6 See Yearbook … 1953, vol. II, document A/2456, paras. 15–52. (see Analytical Guide)
7 See Yearbook … 1958, vol. II, document A/CN.4/113. (see Analytical Guide)
8 See Yearbook … 1958, vol. II, document A/3859, paras. 15 and 22–43. (see Analytical Guide)
9 See Yearbook … 1958, vol. II, document A/3859, para. 17. (see Analytical Guide)
10 See Yearbook … 1958, vol. II, document A/3859, footnote 16. (see Analytical Guide)