ABOUT THE COURSE

This Intensive three-hour course will analyse this iconic international arbitration which took place between the United States and Great Britain in 1871/72. After reviewing the facts giving rise to the dispute, it will examine the treaty that was negotiated by a Joint High Commission from March-May 1871 which sent the matter to arbitration before a five-person Tribunal seated in Geneva. It will then look at the procedural aspects of the arbitration, and highlight its deficiencies (from a modern perspective) and the difficulties which plagued the proceeding. It will also contrast the behaviour of counsel, Agents, and arbitrators with present-day ethical standards. This in-depth analysis of the case yields many important lessons and practice tips for treaty negotiators, counsel, and arbitrators.

Hour 1: Review of the facts giving rise to the dispute and the diplomatic efforts to resolve it, which culminated in the negotiation of the Treaty of Washington by a Joint High Commission comprising five Americans and five Britons. This will underscore the role of negotiating how the protocols of the negotiations will be prepared, the importance of an agreement on confidentiality of the negotiating history, and the uses to which the negotiating history can be put.

Hour 2: Review and analysis of Articles I-XI of the Treaty, in terms of (i) the jurisdiction of the Tribunal; (ii) the composition of the Tribunal and qualifications of the arbitrators; (iii) the oddities of the process (in comparison to present day state to state arbitration), followed by (iv) a discussion of the Tribunal’s first meeting with the parties on December 15/16, 1871, and (v) the events that threatened to result in Britain’s defaulting in the arbitration, or the arbitration being abandoned.

Hour 3: Review of the Tribunal’s proceedings when it reconvened on June 15, 1872, with specific regard to (i) the resolution of the dispute between the two parties as to the jurisdiction of the Tribunal by means of an “extrajudicial declaration of the arbitrators”; (ii) the organization of the Tribunal’s proceedings; (iii) the disagreement amongst the arbitrators as to the mode of proceeding; (iv) contrasting all of the foregoing with present-day practice; (v) the damages phase of the proceeding; and (vi) the issuance of the award and the separate opinion of the British arbitrator.