Christine Gray & Benedict Kingsbury
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Promoting and securing peaceful settlement of disputes remains one of the most important and most difficult objectives of the international legal system. While Article 33 of the UN Charter lists as methods of peaceful settlement negotiation, inquiry, good offices, mediation, conciliation, arbitration and judicial settlement, this list is not exhaustive, and suggests a precision in classification which is belied by the complexity of dispute settlement practice. Arbitration as a method of inter-State dispute settlement in the modern period is often treated as having been inaugurated in proceedings under the Jay Treaty of 1794. In the subsequent evolution of practice concerning inter-State “arbitration” a number of different interpretations of the term are discernible. The predominant approach is exemplified by the 1899 Hague Convention for the Pacific Settlement of International Disputes: “In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective and at the same time the most equitable means of settling disputes which diplomacy has failed to settle.” A comparable view was expressed by the International Law Commission in 1953, describing arbitration as “a procedure for the settlement of disputes between States by a binding award on the basis of law and as the result of an undertaking voluntarily accepted,” and adding that “the arbitrators chosen should be either freely selected by the parties or, at least, . . . the parties should have been given the opportunity of a free choice of arbitrators.” The focus is thus on legal disputes. Arbitration is seen as an equitable means of settlement, but its object is the settlement of disputes by the application of legal rules, principles, and techniques, and not simply to reach an “equitable” result. An alternative view, that arbitration is a means for settling non-legal disputes not suitable for judicial settlement, has been enshrined in a number of treaties, including the 1957 European Convention for the Peaceful Settlement of Disputes, but has received very little support in actual arbitral practice.