Author

Mr Michael Farchakh

Member of the New York and Beirut Bars -

PCA

I. Definition and history 

1.

The Permanent Court of Arbitration (PCA) is a unique arbitral institution. It is in effect an intergovernmental organization, established as a result of The Hague Peace Conference of 1899 by means of the Conventions for the Pacific Settlement of International Disputes of 1899 and 1907.1 The PCA is housed at the Peace Palace in The Hague, alongside the International Court of Justice.2

2.

The pillars of the PCA are its three organs:

  1. The PCA Administrative Council which serves as its governing body and which is composed of representatives of member states of The Hague Conventions.
  2. The Members of the PCA, which are the roster of arbitrators designated to the PCA by member states.
  3. The International Bureau, headed by the Secretary-General, which serves as registry and/or secretariat, supporting arbitral tribunals in carrying out their functions.3
3.

Traditionally, the PCA only administered arbitrations between States, which meant that it was underutilized for many decades.4 In 1934, the PCA Administrative Council approved a request for the administration of an arbitration between the Radio Corporation of America and the Republic of China, holding that the founding conventions permitted the administration of cases between a state and a private party.5 This expanded role set a precedent for the Court’s “revival” in the 1990s with a surge in investor-state arbitrations.6

II. The PCA Rules

4.

The PCA did not originally maintain its own set of arbitral rules, rather it mainly administered UNCITRAL and Ad Hoc It developed four sets of optional rules from 1992 to 1996 for arbitrations involving different combinations of states, international organizations and private persons.7 These were all revised and consolidated in the PCA Arbitration Rules 2012, however none of these iterations have gained much popularity as the bulk of the PCA’s docket still consists of UNCITRAL and Ad Hoc cases.8

III. Relevance of the UNCITRAL Rules

5.

The 1976 UNCITRAL Rules allow parties to an arbitration to resort to the Secretary General of the PCA for the designation of an “appointing authority” which would then proceed to appointing members of the arbitral tribunal and ruling on challenges to arbitrators.9 The 2010 UNCITRAL rules expand on this role by providing that a party may propose that the PCA Secretary General act as appointing authority themselves,10 and also enables the Secretary General to review the tribunal’s fees and expenses.11 In 2019, the Secretary General of the PCA received 39 new requests relating to appointing-authority services, bringing the total number of requests ever received by the PCA to 441.12 

IV. General treaty practice

V. Investment arbitration at the PCA

7.

In its 2019 annual report, the PCA stated that during the course of that year it had administered 125 investor-state arbitrations arising under BITs or national investment laws, in addition to 60 contract-based arbitrations involving a State or other public entity.15 This makes the PCA the second most frequently used institution for investor-state arbitration behind ICSID in 2019. PCA-administered cases are only made public when the parties agree to release some or all of the information.16 A list of past and present cases can be found on the PCA Case Repository.

Bibliography

Part V: Arbitration, Chapter 13: Arbitration in the United States and Europe: Profiles of Selected Arbitral Institutions, in Kidane, W., China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration, International Arbitration Law Library, Vol. 23, Kluwer Law International, 2011.

Introduction: Awakening Sleeping Beauties?, in Indlekofer, M., International Arbitration and the Permanent Court of Arbitration, International Arbitration Law Library, Vol. 27, Kluwer Law International, 2013.

Chapter 4: Forums for Resolving Foreign Investment Disputes, in Bishop, D.R., Crawford, J.R. and Reisman, W.M (eds.), Foreign Investment Disputes: Cases, Materials and Commentary, Second ed., Kluwer Law International, 2014.

Chapter 1: Overview of International Commercial Arbitration, in Born, G.B, International Commercial Arbitration, Second ed., Kluwer Law International, 2014.

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