I. Introduction
The Permanent Court of Arbitration ("PCA") in the Hague is celebrating its 125th anniversary this year. Having been founded at the First Hague Peace Conference in 1899, the PCA has grown from a body established primarily to facilitate the peaceful resolution of inter-state disputes1 into a modern inter-governmental organisation providing registry services to 246 cases, nearly half of which are investor-state arbitrations. As part of the anniversary programme, the PCA held its third-ever Members' Congress on 12-14 June 2024 in the Hague.2 The Congress was well attended, with 100 Members of the Court participating, alongside representatives from the Contracting States' diplomatic services and legal advisers at the PCA.
Three days of discussions about the PCA's strategy, future priorities and specific areas of work led to a resolution adopted by the Members of the Court (the "Resolution"). The Resolution had been prepared over the preceding months, and over several live sessions of the Members at the Congress, which were headed by HE Mr François Alabrune.3 We discuss below some of the specific provisions of the Resolution and their context.
II. The Resolution
A. Increasing the membership
As of June 2024, 123 Contracting Parties have joined one or both the Hague Conventions, with the latest member, Vanuatu, having joined at the Congress. The Resolution calls upon the Administrative Council4 and the International Bureau5 of the PCA to "continue their efforts to encourage States that have not yet done so to accede to the Conventions", and calls upon the Contracting Parties and the Members of the Court to cooperate with the International Bureau to support those efforts, "with a view to achieving universal membership of the Conventions".6
The broadening scope of the PCA's remit is visible both in the types of cases it facilitates and in the geographic and regional coverage already achieved. In addition to its headquarters in the Peace Palace, the PCA has opened five regional offices, the latest one in Ha Noi, Vietnam, in 2022. A further office is soon expected to be opened in Paris. Contracting States are increasingly interested in concluding Host Country Agreements with the PCA, with the latest one having been ratified with Paraguay. With its case-load having grown significantly - by 82 new cases in 2023 - , the appetite for PCA's services worldwide is growing, mirroring the developments in other international dispute resolution institutions in recent years.
B. Closer cooperation with other international institutions
The Resolution invites the International Bureau and the Administrative Council to explore ways of enhancing the PCA's role by further developing relations with the United Nations ("UN") and other international and regional organisations.7 Examples listed in the Resolution include the United Nations Commission on International Trade Law, the International Law Commission, the Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the Secretariat, the United Nations Environment Program and the secretariat of the United Nations Framework Convention on Climate Change.8
While the PCA is not a UN body, it has a cooperative relationship with the UN, notably through the nomination of judges for election to the International Court of Justice ("ICJ"), which is done by the national groups of the Members of the Court whose nominating states are also parties to the ICJ Statute,9 and who submit their nominations to the Secretary-General of the UN.10 There are also other ongoing forms of cooperation, including the PCA's role as observer in the United Nations since 199311 and its participation in UNCITRAL's Working Group III on Investor-State Dispute Settlement Reform.
The importance and potential for synergies through closer cooperation with other international organisations and UN agencies was a matter of repeated discussion at the Congress. The practical, rather than purely academic, role of the International Institute for the Unification of Private Law ("UNIDROIT") and the potential for the PCA to cooperate more closely with UNIDROIT's working groups (including in particular the one on International Investment Contracts) was a specific instance noted at the Congress.
C. Non-binding dispute resolution and substantive areas of growth
A recurring theme at the Congress was the role of non-binding dispute settlement mechanisms such as good offices, mediation and conciliation services under the auspices of the PCA (for both inter-state and investor-state proceedings). While challenges remain around the certainty and enforceability of any settlement reached,12 the participants (both from the signatory states and from the PCA) were encouraged to raise awareness of the possibility of PCA-facilitated mediation and conciliation, with existing success stories including the Timor Sea conciliation between Australia and Timor-Leste of 2016-2018. Specific current use cases were highlighted for scenarios where the settlement of a dispute requires the inclusion of non-party stakeholders such as local and/or indigenous communities, whose interests may not fully correspond to those of the relevant State party.
Relatedly, the Congress included a session on innovation, where topical and innovative subject-matters for arbitration were discussed. These included, among others, the role of environmental and social responsibility of both private parties and states, as well as tax treaty arbitration. The former is a growing area of dispute, where stakeholder engagement is an important factor, as are considerations of public policy and enforceability of awards and – relatedly - the degree of initiative required of arbitrators who are drafting awards in matters where environmental considerations are likely to be relevant.
Both topics (non-binding dispute resolution mechanisms and the growing opportunities to branch out into less-traditional subject-matter) are reflected in the Resolution.13
D. Further guidelines, including for expedited procedures
The PCA is developing further rules and guidelines, in order better to serve the stakeholders making use of its services. While the working group convened by the Administrative Council14 for the PCA's 125th anniversary is expected to formulate its general recommendations in the short to medium term, specific topics highlighted at the Congress as potentially benefitting from more specific rules and guidance included expedited procedures,15 bifurcation16 and summary dismissal.
E. Gender equality, inclusiveness and diversity
The Resolution calls on the Contracting States and the PCA to promote inclusiveness and diversity in international arbitration, and in particular to promote the presence of women in technical and decision-making positions within the institution, further increasing the number of female arbitrators appointed.17
This provision, like several of the others discussed above, was an addition born from the discussions and proceedings at the Congress. Several participants raised the importance of promoting all forms of diversity (including but not limited to female representation). Additionally, participants noted the need to take care in considering the roles of the national groups, the Contracting States and the PCA's International Bureau and Administrative Council, and the specific limits and opportunities their respective roles pose in the promotion of diversity and inclusivity.
F. Diversity of languages of proceedings
The Resolution calls, among other things, for exploration of effective ways to promote the use of all six official languages of the UN in the PCA's role.18 The capacity of the International Bureau of the PCA, including in its regional offices, to support proceedings in a variety of languages was showcased throughout the Congress, with the sessions and workshops that this author attended being conducted in at least four languages. This was among the matters discussed in the context of broadening the PCA's regional presence and competence, as well as its attractiveness for parties.
III. Further Considerations
Not all matters considered at the Congress made it to the Resolution on this occasion (nor can they be comprehensively discussed here). Some of the matters floated and left open for future consideration include (a) the possibility (and any role) of a preliminary reference / advisory opinion mechanism and (b) the specific expertise of PCA in facilitating dispute resolution where one party is an intergovernmental organisation (and, as such, more likely to suggest that the proceedings should go ahead without a seat, with all the connotations that flow from that).
As for the former, it remains to be seen what, if any, progress is made. A threshold consideration would be to ascertain the problem that an advisory opinion or preliminary reference mechanism would set out to solve. While there are well-known instances of such mechanisms, such as the requests to the ECtHR for an advisory opinion under Protocol 16 of the ECHR, or to the ICJ under Article 96 of the UN Charter, or the preliminary reference procedure in Article 267 of the TFEU, each of these concerns courts. In the first two examples they are international courts, in the third one, it is the highest EU court, whose decisions are directly binding on Member State courts. In each case, the proceedings are by default public and the courts' decisions have significant precedent value in terms of guiding the reasoning of national courts, whether or not the relevant legal systems have a formal doctrine of precedent. In those circumstances, the value of an authoritative advisory opinion or decision on a preliminary reference is clear.
Whether and in which circumstances the need may arise for a similar mechanism in the types of dispute resolution facilitated by the PCA is a question on which the Congress did not reach a final conclusion. The Resolution invites the Administrative Council and the International Bureau to explore opportunities for further engagement with, and more regular interaction among, the Members of the Court – such further interaction may provide the necessary forum if this issue is to be pursued further.19 It remains to be seen what form such further engagement and interactions will take and whether the next occasion for the Members of the Court to meet in person will be earlier in less than 25 years' time. The Third Congress proved the value of such meetings as a forum for high-level engagement and strategy-setting, as well as for meaningful exchange on specialist and regional issues.
Footnotes
1. See, eg, Articles 1, 3 and 15 of the Hague Convention 1899
2. The two previous occasions when the Members of the Court convened were in 1993 and 1999, respectively.
3. HE Mr Alabrune is Ambassador of France to the Netherlands and a Member of the Court in the French national group.
4. The Contracting Parties' diplomatic representatives accredited to The Netherlands comprise the Administrative Council, under the chairmanship of the Netherlands Minister for Foreign Affairs. This body, in consultation with the Secretary-General of the PCA, shapes the policy of the organization, supervising its administration, budget and expenditure.
5. Also known as the PCA's Secretariat, the International Bureau (led by the Secretary-General) provides administrative support to tribunals and commissions, serving as the official channel of communications and ensuring the safe custody of documents.
6. Resolution, OP-6 (here and below, OP" is used for operative provision" and PP" for Preamble provision")
7. Resolution, OP-9
8. Resolution, PP-9
9. Not all PCA national groups are nominated by states that are parties to the ICJ Statute: examples of Contracting States of the PCA who are not parties to the ICJ Statute include Palestine and Kosovo.
10. Noted in Resolution, PP-4 and OP-10
11. See Resolution A/RES/48/3 of the UN General Assembly, dated 22 October 1993
12. The ongoing process of states' accession to the Singapore Convention was mentioned in this regard, with the current number of signatories being 57.
13. See Resolution, OP-16, OP-17; also OP-16
14. Resolution, OP-2
15. Resolution, OP-15
16. Ibid.
17. Resolution, OP-18
18. Resolution, OP-12
19. Resolution, OP-20
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