3. Permanent Court of Arbitration

Permanent Court of Arbitration

Concept

The Permanent Court of Arbitration (PCA) is an intergovernmental institution established under the Hague Convention for the Pacific Settlement of International Disputes of 1899 and continued under the 1907 Convention. Despite its name, it is not a standing court with permanent judges. It facilitates arbitration and other forms of dispute resolution between States and, in appropriate proceedings, other parties. (Hague Convention for the Pacific Settlement of International Disputes (1899)) (Hague Convention for the Pacific Settlement of International Disputes (1907))

Governing provisions

The Hague Conventions provide the PCA’s institutional framework. The agreement to arbitrate and the instrument governing a particular dispute determine the tribunal’s authority and procedure. Under the UN Convention on the Law of the Sea (UNCLOS), Annex VII provides for arbitration of disputes concerning the Convention’s interpretation or application; the PCA may serve as registry for such a tribunal. (Hague Convention for the Pacific Settlement of International Disputes (1907)) (UNCLOS, Annex VII)

Requisites / Rules

• Consent. An arbitral tribunal’s jurisdiction must rest on the parties’ consent, whether expressed in a special agreement or in an applicable treaty’s dispute-settlement clause. The PCA’s availability as an institution does not itself confer jurisdiction. (Hague Convention for the Pacific Settlement of International Disputes (1907)) (UNCLOS, Article 287)
• Constitution of the tribunal. Arbitrators are appointed for the particular dispute under the applicable rules. They are not permanent judges of the PCA. (Hague Convention for the Pacific Settlement of International Disputes (1907)) (UNCLOS, Annex VII)
• UNCLOS procedure. Subject to the Convention’s provisions, Annex VII arbitration is the default procedure if a State Party has not made a declaration choosing another procedure, or if the disputing parties have not accepted the same procedure. (UNCLOS, Article 287)
• Nonappearance. A party’s failure to appear does not automatically stop an Annex VII proceeding. Before making an award, the tribunal must satisfy itself that it has jurisdiction and that the claim is well founded in fact and law. (UNCLOS, Annex VII, Article 9)

Distinctions

The International Court of Justice is the UN’s principal judicial organ and has permanent judges. By contrast, the PCA provides an institutional framework and support for separately constituted tribunals. Thus, an award issued in a PCA-administered case is the award of the arbitral tribunal, not a judgment by the PCA as a standing court. (UN Charter, Article 92) (ICJ Statute, Article 3) (Hague Convention for the Pacific Settlement of International Disputes (1907))

Key doctrines

In an UNCLOS Annex VII arbitration, an award is final and must be complied with by the parties to the dispute, unless they agreed in advance to an appellate procedure. That binding effect does not give the PCA an independent power to enforce the award. (UNCLOS, Annex VII, Article 11)

Bar tip

Identify the source of consent, the tribunal, and the PCA’s role separately. Do not call a PCA-administered arbitral tribunal the International Court of Justice—or assume the PCA itself decided the case. (Hague Convention for the Pacific Settlement of International Disputes (1907)) (UNCLOS, Annex VII)