Everything you always wanted to know about the Permanent Court of Arbitration (but didn’t know who to ask)

Justice Hub: Let’s get some facts straight about the Permanent Court of Arbitration. Its title doesn’t help with our understanding, does it? Is it permanent?

Prof Ricardo Abello Galvis: No, it is not permanent.

JH: Is it a court? 

Prof: No, it is not a court.

JH: So, does it arbitrate?

Prof: Yes

Justice Hub: So what is the PCA then? 

Prof: It is not a court. The arbitration the PCA engages in is a mechanism to resolve disputes that is kind of “tailor-made”. There are no judges that are elected for a period of time. Instead, there are arbitrators that are elected for that specific case. So they have a time-bound competence to arbitrate in a specific case.

In a permanent court like the neighbouring International Court of Justice, they receive the cases that arrive. There you cannot choose your judges. But at the PCA, you can choose your judges from a list. That’s the big difference between one and the other.

Justice Hub: The PCA has been changing in recent years and has become a lot more active. How has it changed? 

Prof: It was the first ever global mechanism – dating back to 1899 – that was created to receive all kinds of disputes between states. It has worked in that way up until 1998. That year was when we started to see the effects of changes to the rules adopted by the state members in order to have a broad jurisdiction for many different cases and subjects of law.

Since that moment, the PCA started to receive some cases between private companies and states, between states and between intergovernmental organisations and states. It has increased its jurisdiction and from that moment the number of cases has increased in an amazing way. They had 25 to 27 cases from 1902 to 1998 but at this moment, they have more than 300 cases. The increase in cases is really huge.

Justice Hub: The tribunal’s quite secret isn’t it? Why is it difficult to know what the PCA is doing?

Prof: Yes it is quite secret in some cases. But not in others. Normally when it is a case between states, it is public. But there are some state proceedings that are conducted in secrecy because of the matter that they are dealing with. But in the end, everything is made public. 

But when it is between private parties, everything is different. They prefer that the proceedings be done in secret because if somebody made it public that they have a problem with a deal, an investment or a product or something of that kind, it might have a negative impact on their share price. So for the stability of the companies, it is better to for the disputes to be arbitrated in secret. That’s why most of the companies prefer secrecy but not all of them. The companies get to decide if they want the proceedings done in secret or not.

Justice Hub: Is it always conducted in English or French?

Prof: All general rules have their exceptions. Normally it is in English or French but there some cases where a part of them at least have been conducted in Spanish or in other languages. But the general rule is that proceedings are done in French or in English. That’s why a lot of countries are asking to have their own tribunal in Spanish or in other languages.

But as long as the most common use of the PCA is between private companies and states related to Latin America or to Africa, you will find that all the investors prefer to deal with the tribunal in English or in French. So it is very difficult for the states to change the language of work of the tribunal.

Justice Hub: Is it still possible to say that the PCA is essentially a European affair or is it really international?

Prof: It is international. However, there is criticism made against PCA of Eurocentricism, because international law was born in Europe, so the basics of international law are still very European. Whether we like it or not, that’s another matter. But the basis and the principles were born in Europe and we are using them all around the world now.

There is a big area of research now that criticises this Eurocentricism. Proponents of this view say they want to have another view of international law to change some principles of international law because, as they say, they consider it a kind of neo-colonialism.

Justice Hub: What do you think – does the PCA represent a neo-colonialist point of view? 

Prof: I am very pragmatic on that point. I think we have international rules and we have to play by them. I think the problem is not where the rules were created but how we play with them. The problem, I think, is not what are the principles, but what is the pressures that is put on states in order to have an agreement.

Justice Hub: Could you explain what you mean about “pressure” on states?

Prof: When a small country negotiates a bilateral investment treaty with a big country, the number of products that the small country can export is small compared to all the things that come from the other country. There is no equivalence. They are not equal in that moment. That’s what we have to change in order to have equal rights when a problem arises between those two states.

Justice Hub: What does the future hold for the PCA?

Prof: I think the PCA is going to continue marching forward. The number of cases that they are going to deal with will increase because they have a very well-organised system and they work quite fast. I think the biggest thing the PCA has going for it is the goodwill it has built up over a hundred years. From that point of view, it has more experience than any other tribunal in the world.

Photo: Janet Anderson/ Justice Hub