May the Majority Vote of an International Arbitral Tribunal be Impeached?: The 1996 Freshfields Lecture

Abstract

CASES OF the International Court of Justice passing upon the validity of international arbitral awards have been few; precisely, two. The validity of an arbitral award made by the King of Spain in 1906 determining portions of the boundary between Honduras and Nicaragua was challenged by Nicaragua. Under the auspices of the Organization of American States, Honduras and Nicaragua concluded a Special Agreement submitting the dispute to the court. In 1960, the court held that Nicaragua had in fact freely accepted the designation of the King of Spain as arbitrator, had fully participated in the arbitral proceedings, and had thereafter accepted the award. The court consequently found that the award was binding and that Nicaragua was under an obligation to give effect to it – which it did.1 In 1991, the court gave judgment rejecting another challenge to the validity of an arbitral award, in the case concerning the Arbitral Award of 31 July 1989.2 It is that case on which I shall concentrate these remarks, for it has more than one aspect of high interest to the processes of international arbitration, both interstate and commercial. But before doing so, I may note that the predecessor of the International Court of Justice, the Permanent Court of International Justice, also dealt with a few cases of appeal of arbitral awards from mixed arbitral tribunals. Perhaps that experience was what stimulated the Government of Finland in 1929 to propose that the court be generally endowed with the authority to determine the validity of arbitral awards. While that proposal was fruitless, when Professor Georges Scelle produced his Draft Code of Arbitral Procedure for the International Law Commission some 25 years later, it provided that arbitral awards that were challenged on certain specified grounds could be referred by either party to the …