Symposium: 125 years of the Permanent Court of Arbitration: A Retrospective and exploration of New Frontiers
The Permanent Court of Arbitration
through the Ages
by Liyuan Feng
Published on 12 December 2024
In 2024, the Permanent Court of Arbitration (PCA) celebrates 125 years of existence. The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the First Hague Peace Conference. The PCA was the first permanent intergovernmental organisation to provide a forum for the resolution of international disputes through arbitration and other peaceful means. On 25 July 2024, the PCA Singapore Office and the Ministry of Law, Singapore, co-organised an event celebrating the PCA’s 125th anniversary, in partnership with the Centre for International Law at the National University of Singapore. The commemorative event featured three panels.
The first panel, themed ‘PCA Through the Ages’, was moderated by Ms Loretta Malintoppi, arbitrator at 39 Essex Chambers, highlighting key moments behind PCA’s longevity. This session featured the following speakers: Mr Brooks Daly, independent arbitrator and former PCA Deputy Secretary-General; Dr Túlio Di Giacomo Toledo, Senior Legal Counsel and PCA Representative in Singapore; Mr Rodman Bundy, senior partner at Squire Patton Boggs and Professor Laurence Boisson de Chazournes from the University of Geneva Faculty of Law.
As observed by Ms Malintoppi, few organisations have the privilege of surviving for a history of 125 years, and fewer still remain fit for purpose. Far rarer are those that not only continue to thrive but also set new records. The PCA is one of them. Its longevity has not happened by accident. The speakers navigated through the PCA’s history and captured the key factors and moments that have made its enduring legacy possible.
A purpose that remains fit for the times
Reflecting on its history, Dr Toledo noted the PCA’s establishment in 1899 during a time of turmoil and conflict. At the end of the 19th century, Europe was overshadowed by an escalating arms race, prompting Russian Tsar Nicholas II to convene the First Hague Peace Conference, calling for a real and lasting peace. The crowning achievement of this conference was the 1899 Convention for the Pacific Settlement of International Disputes (‘the 1899 Convention’), which, among other things, established the PCA as the first permanent institution ‘accessible at all times’ — Article 20 of the 1899 Convention — for the peaceful settlement of international disputes through arbitration and other means, such as conciliation and commissions of inquiry. The 1899 Convention was revised at the Second Hague Peace Conference in 1907.
Professor Boisson de Chazournes emphasised that the negotiators of the 1899 Convention were visionary. They included a special provision, Article 27, which makes it a duty for the contracting parties, in case of a serious dispute, to remind each other that the PCA remains open to them. It is framed as a collective responsibility norm. What they envisioned, according to Professor Boisson de Chazournes, was later enshrined in the United Nations Charter, especially in Article 33 which provides a selection of pacific means of dispute settlements that may be provided by the PCA. Article 1 of the four Geneva Conventions, which calls for collective efforts from the contracting parties to respect and ensure the respect for the conventions, as well as Article 89 of the Protocol Additional to the Geneva Conventions, also promote the collective responsibility of the contracting parties to these instruments.
An ever-evolving role
In its early decades, the PCA grew as an attractive dispute resolution mechanism for States. Until the First World War, it administered fifteen inter-State disputes, including the 1908 Grisbådarna arbitration concerning the maritime boundary delimitation between Sweden and Norway. Afterwards, the PCA experienced a period of relative inactivity. Ms Malintoppi recalled that Judge Gilbert Guillaume once compared the PCA to a ‘Sleeping Beauty’ that had fallen into a deep slumber, which lasted until the 1990s.
Mr Bundy noted possible explanations for the waning interest in arbitration during this period, one being the establishment of the Permanent Court of International Justice in 1922 and later the International Court of Justice in 1945. However, Mr Bundy emphasised that the PCA had continued to administer proceedings and achieved significant milestones in the 20th century. For example, in 1925, it administered the Island of Palmas arbitration between the Netherlands and the United States, where the sole arbitrator Max Huber made a landmark decision stressing the importance of ‘continuous and peaceful display of territorial sovereignty’. In 1934, leveraging the flexibility embedded in its founding conventions, the PCA administered its first arbitration between a private entity and a State, the case between the Radio Corporation of America and the Republic of China, establishing its first specialised set of rules for mixed arbitrations and setting a precedent for its modern caseload.
Mr Bundy mentioned that, in 1996, the PCA was invited to administer the Eritrea-Yemen arbitration, its first inter-State arbitration in decades. Having successfully provided support to the tribunal and the parties in that matter, the PCA revitalised international trust and demonstrated its readiness to serve. This has sparked the referral of a series of high-profile inter-State arbitrations to the PCA, including the Rhine Chlorides arbitration concerning the auditing of accounts between the Netherlands and France, the Eritrea-Ethiopia boundary and claims commissions, the MOX Plant case between Ireland and the United Kingdom, the Slovenia-Croatia arbitration, the Kishanganga arbitration between India and Pakistan and the Abyei arbitration.
What triggered the PCA’s growth thereafter? Mr Daly explained that its neutrality, thanks to its unique structure and position as an intergovernmental organisation overseen by its Contracting Parties, played a key role. After the world wars, there was a growing recognition of the PCA’s independence. Over time, the international community increasingly relied on the PCA, including for organising ICSID hearings at the Peace Palace, integrating references to the PCA into the UNCITRAL Arbitration Rules, and selecting it as the registry in all but one UNCLOS Annex VII arbitrations.
An exponential growth in the new century
Mr Daly recalled his early days at the PCA at the beginning of the 21st century, when the PCA was running seven cases with a small team of lawyers representing about ten nationalities and speaking only English and French. He further noted specific changes and decisions that, in his view, enabled the PCA to grow.
First, the PCA built a strong and capable secretariat team renowned for its expertise in public international law and arbitration, particularly regarding sophisticated procedural matters. Second, it developed specialised rules and reformed its procedures. Third, it developed improvements to the list-procedure mechanism under the UNCITRAL Arbitration Rules for the appointment of arbitrators.
When requested to appoint a presiding or a sole arbitrator, the PCA Secretary-General will ordinarily follow a list-procedure, as envisaged in the PCA Arbitration Rules 2012 and the UNCITRAL Arbitration. Rules. Mr Daly explained that the PCA Secretary-General established a practice to regularly invite the parties to agree on a modified list-procedure, pursuant to which the number of strikes by each side is limited, so that at least one common candidate remains on the list and the list-procedure does not fail. He also recalled that the PCA was one of the first few institutions issuing reasons when deciding challenges to arbitrators, a practice that was well-received by the parties.
Dr Toledo added that, to make its services accessible worldwide, the PCA adopted a policy of signing Host Country Agreements with its Contracting Parties, establishing a legal framework to facilitate the conduct of PCA proceedings, including hearings and meetings, in the territory of the host country. The PCA further strengthened its global reach by establishing international offices, including its Singapore Office which began operations in 2018 and serves as a hub for PCA services in the Asia-Pacific region.
As recognised by the panel, today, the PCA has evolved into a modern, multifaceted institution with a diverse docket. It is one of the busiest international courts globally, with over 210 pending cases and a record 82 new cases in 2023 alone. Its International Bureau consists of staff from over forty nationalities, speaking twenty languages.
Dr Toledo noted that, while investor-State arbitration continues to represent almost half of its docket, the share of contract-based cases has increased significantly in the past years, surpassing the number of investor-State arbitrations for the first time in the PCA’s history in 2024.
A future yet to unfold
The panel noted that, during its third-ever Congress of the Members of the Court held in June 2024 in The Hague, a Resolution was adopted with a view to, among other things, ensuring the PCA’s adaptability to the evolving challenges of international dispute resolution.
Dr Toledo recalled that one potential role for the PCA discussed during the Congress, was to administer disputes arising under multilateral or regional trade agreements. It was also encouraged that the PCA explore avenues to further facilitate dispute resolution through mediation and conciliation.
Speaking about the PCA’s future, Mr Bundy noted that the PCA is well-equipped to leverage its unique experience in handling inter-State disputes and expand its services to a more diverse range of disputes. These disputes may include sectors of climate change, environmental protection, and freshwater boundary disputes, as well as conciliation proceedings following the success of the conciliation between Timor-Leste and Australia which was administered by the PCA.
Professor Boisson de Chazournes praised the PCA’s ability to deal with different procedural challenges and develop new best practices. She referred to the site visits conducted by the PCA in the Indus Waters Treaty Arbitration and Neutral Expert Proceedings, noting the PCA’s flexibility to fit the needs of diverse proceedings. She also highlighted the value of further reflections on the PCA’s role in promoting dispute prevention, hand-in-hand with its longstanding commitment to dispute settlement.
Mr Daly remarked on the PCA’s role in supporting geographic diversity and gender equality of arbitrator appointments. He also anticipated a greater awareness amongst the international community of the PCA’s unique position and contribution to the peaceful resolution of disputes.
While the PCA’s caseload and variety of cases are expected to grow, Dr Toledo highlighted a practical challenge: managing limited resources while maintaining high standards across all cases managed by the PCA. Having done so consistently for 125 years, he concluded that the PCA is well-positioned to continue its vital role in facilitating the peaceful settlement of international disputes.
This report was prepared by Ms Liyuan Feng, Assistant Legal Counsel at the Permanent Court of Arbitration, Singapore.