Treaty for the settlement of disputes between Germany and the Netherlands by arbitration or conciliation, including a final protocol

CONVENTION OF ARBITRATION AND CONCILIATION BETWEEN GERMANY AND THE NETHERLANDS. SIGNED AT THE HAGUE, MAY 20, 1926
The Kingdom of the Netherlands and the German Reich, being desirous of promoting the development of the procedure for the pacific settlement of international disputes, have agreed to
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conclude a General Arbitration and Conciliation Convention, and have for this purpose appointed as their Plenipotentiaries:
HER MAJESTY THE QUEEN OF THE NETHERLANDS:
His Excellency Jonkheer H. A. VAN KARNEBEEK, Minister for Foreign Affairs;
THE PRESIDENT OF THE GERMAN REICH: '
Baron H. LUCIUS VON STOEDTEN, Envoy Extraordinary , and Minister Plenipotentiary of the Gei'man Reich at the Hague,
Who, after having communicated to each other full powers, found in good and due form, have agreed as follows:
Article 1
The Contracting Parties undertake to submit all disputes of any nature whatever which may arise between them, which it has not been possible to settle within a reasonable period by diplomacy, and which have not been referred by mutual agreement to the Permanent Court of International Justice, to be dealt with by arbitration or conciliation, as provided in the present Convention.
Disputes for the solution of which a special procedure has been laid down in other conventions in force between the Contracting Parties shall be settled in accordance with the provisions of such conventions.
Article 2
At the request of one of the Parties, disputes regarding points of law, and especially the following subjects, unless otherwise provided for in Article 3, shall be submitted to arbitration:
(1) The contents, interpretation and application of any treaty concluded between the two parties;
(2) Any question of international law;
(3) The existence of any fact which, if established, would constitute a breach of an international obligation;
(4) The extent and nature of the reparation to be made in the
case of a breach of such obligation. .
In case of disagreement as to whether the dispute falls under one of the above categories, this prior question shall be referred to arbitration.
Article 3
In regard to questions which, under the National laws of the Party against which a demand has been formulated, are within the competence of judicial authorities, including administrative tribunals, the defendant Party may require that the dispute shall not be submitted to arbitral award until a final decision has been pronounced by these judicial authorities and that the matter shall
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be brought before this Tribunal not later than six months after the date of such decision. The above provisions shall not apply if justice has been refused and if the matter has been brought before the courts of appeal provided for by law.
In the case of disputes regarding the application of the preceding provision, the Arbitral Tribunal shall decide.
Article 4
The Tribunal shall base its decision on:
(1) The conventions, whether general or particular, in force between the parties, and the" principles of law arising therefrom;
- (2) International custom as evidence of a general practice accepted as law;
(3) The general principles of law recognized by civilized nations ;
(4) The precedents laid down in recognized doctrine and legal practice as an auxiliary factor in the establishment of rules of law.
If both Parties agree, the Tribunal may, instead of basing its decision on legal principles, give an award in accordance with considerations of equity.
Article 5
In the absence of agreement to the contrary between the Parties in each particular case, the Tribunal shall be constituted as . follows:
The judges shall be chosen from the list of members of the Permanent Court of. Arbitration established by the Hague Convention, dated October 18, 1907, for the Pacific Settlement of International Disputes.
Each Party shall appoint its own arbitrator. The Parties shall jointly nominate three other arbitrators, one of whom shall be the umpire. If, after having been appointed, one of the judges jointly elected acquires the nationality of one of the parties, appoints his domicile in its territory or enters its service, either of the Parties may demand that he be replaced. Any disputes which may arise as to whether any one of these conditions exists shall be settled by the other four judges. The oldest of the judges jointly elected shall take the chair in these cases, and, if the votes are equally divided, he shall give a casting vote.
For each individual dispute there shall be a fresh election of judges. The Contracting Parties, however, reserve the right to act in concert, so that, for a certain class of dispute arising within a fixed period, the same judges shall sit in the Tribunal.
In case of the death of members of the Tribunal, or of their re-
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tirement for any reason whatever, they shall be replaced according to the manner determined for their appointment.
Article 6
In each individual case the Contracting Parties shall, in pursuance of the present Treaty, draw upi a special agreement [Schiedsordnung], to determine the subject of the dispute, any special terms of reference which may be accorded to the Tribunal, its composition, the place where it shall meet, the amount that each Party concerned shall be obliged to deposit in advance to cover expenses, the rules to be observed with regard to the form and limits of the proceedings, and any other detail that may be considered necessary.
Any disputes arising out of the terms of the special agreement shall subject to the terms of Article 7, be settled by the Arbitral Tribunal. '
Article 7
If the special agreement has not been drawn up within a period of six months after one Party concerned has notified the other of its intention to refer the dispute to arbitration, either Party may request the Permanent Board of Conciliation provided for under Article 13, to establish the special agreement. The Permanent Board of Conciliation shall, within two months after having been convened, settle the terms of the special agreement, the subject of the dispute being determined on the basis of the statements submitted by the Parties. .
The same procedure shall apply when one Party has not nominated the arbitrator for whose appointment it is responsible, or when the Parties concerned cannot agree upon the choice of the judges to be appointed jointly or of the umpire.
Pending the constitution of the Tribunal, the Permanent Board of Conciliation shall also be competent to decide any other dispute relating to the special agreement.
Article 8
The award of the Tribunal shall be given by a majority vote.
Article 9
The arbitration award shall specify the manner in which it is to be carried out, especially as regards the time-limits to be observed.
If in an arbitration award it is proved that a decision or measure of a Court of Law or other authority of one of the Parties is wholly or in part contrary to international law, and if the constitutional law of that party does not permit, or only
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partially permits, the consequences of the decision or measure in question to be annulled by administrative measures, the arbitration award shall give the injured Party equitable satisfaction of another kind.
Article 10
Subject to any provision to the contrary in the special agreement, either Party may claim a revision of the award by the Tribunal which gave the award. This demand may only be based on the discovery of a fact, which might have exercised a decisive . influence on the award, and which at the time of the close of the proceedings, was unknown to the Tribunal itself and, through no fault of its own, to the Party demanding the revision.
If, for any reason, any members of the Tribunal do not take part in the revision proceedings, substitutes for them shall be appointed in the manner determined for their own appointment.
The limit of time within which the demand provided for in the first paragraph may be presented shall be fixed in the arbitral award, unless it has already been fixed in the special agreement.
Article 11
Any dispute arising between the Parties concerned as to the interpretation and execution of the award shall, in the absence of an agreement to the contrary, be submitted to the Tribunal which pronounced it. In the latter case, the, provision contained in Article 10, paragraph 2, shall also apply, mutatis mutandis.
Article 12
Any dispute which, under the terms of the present Convention, cannot be referred to arbitration, and cannot, by consent of both Parties, be settled peacefully by any other means shall, at the request of either of the Parties concerned, be submitted to the procedure of conciliation.
If the opposing Party claims that a dispute, for which conciliation procedure has been initiated, should be settled by the Permanent Court of International Justice or by the Arbitration Tribunal or by any other special procedure as provided by Article 1, paragraph 2, the body, whose jurisdiction is claimed, shall first pronounce judgment upon this prior question.
The Governments of the Contracting Parties shall be entitled to agree that a dispute which, under the terms of the present Convention, can be settled by the Permanent Court of International Justice or by an Arbitration Tribunal, shall be submitted to the conciliation procedure, either without appeal or subject to appeal to the Permanent Court of International Justice or to an Arbitration Tribunal.
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Article 13
A Permanent Board of Conciliation shall be constituted for the procedure of conciliation.
The Permanent Board of Conciliation shall consist of five members. The Contracting Parties shall each appoint one member of their own choice and shall'nominate the three other members by common agreement.
These three members shall not be nationals of the Contracting States, nor be resident in their territory, nor be, nor have been, in their service. The Contracting Parties shall jointly elect the Chairman from among these three members.
Either of the Contracting Parties shall have the right, at any time, unless a procedure is pending or has been proposed by one of the Parties, to recall the member appointed by it and to appoint a successor. Similarly, either Contracting Party shall also be entitled to withdraw its consent to the appointment of each of the three members jointly. In this case a new member must be appointed by joint agreement without delay.
Within two weeks from the date when one of the Contracting Parties has referred a dispute to the Permanent Board of Conciliation, either Party may, for the purpose of this particular dispute, replace its member by a person possessing expert knowledge of the question at issue. The Party exercising this right shall immediately inform the other Party; the latter shall in that case be entitled to take similar action within two weeks after receipt of such notice.
The Permanent Board of Conciliation shall be constituted within the six months following the exchange of the instruments of ratification of the present Convention. Retiring members shall be replaced as soon as possible in the manner laid down for the first election.
If the nomination of the members to be appointed jointly has not taken place within the six months following the exchange of the instruments of ratification, or, in the case of a vacancy on the Permanent Board of Conciliation, within three months of the date on which the vacancy occurred, in the absence of any other agreement, the President of the Swiss Confederation shall be invited to make the necessary appointment.
Article 14
The Permanent Board of Conciliation shall enter upon its duties as soon as a dispute has been referred to it by either of the Parties. Such Party shall communicate its request simultaneously to the Chairman of the Permanent Board of Conciliation and to
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the other Party. The Chairman shall summon the Permanent Board of Conciliation to meet at the earliest possible moment.
The Contracting Parties undertake in all cases and in all respects to assist the Permanent Board of Conciliation in its work and, in particular, to grant it all legal assistance through the competent authorities. They shall take all necessary measures to enable the Permanent Board of Conciliation to summon and examine witnesses and experts and to proceed to investigations on the spot in their respective territories. The Board may take evidence either in pleno or through one or more of the members appointed jointly.
Article 15
The Permanent Board of Conciliation shall determine its own meeting place and shall be at liberty to transfer it.
The Permanent Board of Conciliation shall if need be establish a registry. If it appoints nationals of the Contracting Parties to positions in this office, it shall treat both Parties as on an equal footing.
- Article 16
The deliberations of the Permanent Board of Conciliation shall be valid if all members have been duly convoked and if at least the members nominated jointly are present at the meeting.
The decisions of the Permanent Board of Conciliation shall be taken by a majority vote. If the votes are equally divided, the Chairman shall give a casting vote.
Article 17
The Permanent Board of Conciliation shall draw up a report _ which shall set out the facts of the case, and shall, unless it may seem undesirable in the particular circumstances of the case, contain proposals for the settlement of the dispute. i The report shall be submitted within six months from the date on which the dispute was laid before the Permanent Board of Conciliation, unless the Parties agree to extend this time-limit, or, before the Permanent Board of Conciliation has met,- agree to shorten it. In addition, the Permanent Board of Conciliation shall have the right to extend this time-limit once for a period not exceeding six months. The report shall be drawn up in three copies, one of which shall be handed to each of the Parties, and the third preserved in the archives of the Permanent Board of Conciliation.
The report shall not, either as regards statements of fact or as regards legal considerations, have the force of a final judgment
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binding upon the Parties. When submitting its report, the Permanent Board of Conciliation may call upon the Parties to state within a time-limit to be fixed by the report, whether and, to what extent, they recognize the correctness of the findings in the report and accept the proposals which it contains.
The Parties shall jointly decide whether the report should be published immediately. If they fail to reach an agreement on this point the Permanent Board of Conciliation may have the report published immediately should there be special reasons for so doing.
Article 18
Each Party shall bear the cost of the remuneration of the member of the Permanent Board of Conciliation appointed by itself, and half the cost of the emoluments of the members jointly appointed.
Each Party shall bear the costs for which it is directly responsible in connection with the proceedings and half of the costs which the Permanent Board of Conciliation declares to be common to both Parties.
Article 19
The award pronounced as the result of the procedure of arbitration shall be carried out in good faith by the Parties concerned.
The Contracting Parties shall undertake, during the course of the arbitration or conciliation proceedings, to refrain as far as possible from any action liable to have a prejudicial effect on the execution of the arbitral award or on the acceptance of the proposals of the Permanent Board of Conciliation. In the case of conciliation proceedings, they shall refrain from resorting to forcible measures of any kind until the expiration of the timelimit fixed by the Permanent Board of Conciliation for the acceptance of its proposals, or in the absence of such time-limit, until the report has been presented.
The Arbitral Tribunal may, at the request of either of the Parties, prescribe measures of precaution, provided that such measures can be carried out by the Parties through their administrative machinery; the Permanent Board of Conciliation may also make proposals for the same purpose.
Article 20
Subject to any provisions to the contrary laid down in the present Convention, or the special agreement, the procedure of arbitration and conciliation shall be regulated by the Hague Con-
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vention of October 18, 1907, for the Pacific Settlement of International Disputes.
In so far as the present Convention refers to the stipulations of the Hague Convention, the latter shall be applicable to the relations between the Contracting Parties, even if one or both of them denounce the Hague Convention. '
In so far as neither the present Convention, nor the special agreement, nor any other conventions in force between the Parties lay down the time-limits and other details connected with the procedure of arbitration or conciliation, the Tribunal or the Permanent Board of Conciliation shall itself be competent to decide as to the necessary provisions.
Article 21
The present Convention shall be ratified as soon as possible. The instruments of ratification shall bfe exchanged at Berlin.
The Convention shall come into force one month after the exchange of instruments of ratification. '
The Convention shall be valid for a period of ten years. If, however, it is not denounced six months before the expiration of this period, it shall remain in force for a further period of five years, and shall be similarly renewed so long as it has not been denounced within the prescribed period.
If a dispute which has been referred to arbitration or conciliation has not been settled when the present Convention expires, the case shall be proceeded with according to the stipulations of the present Convention or of any other Convention which the Contracting Parties may agree to substitute therefor.
In witness whereof, the Plenipotentiaries have signed the present Convention.
Done in duplicate in Dutch and German at The Hague, May 20, 1926.
v. Karnebeek v. Lucius
FINAL PROTOCOL.
of the Convention of Arbitration and Conciliation between the Netherlands and Germany
1. The Contracting Parties are agreed that in doubtful cases the stipulations of the present Convention shall be interpreted in favour of the application of the principle of settlement of disputes by arbitration.
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2. The Contracting Parties declare that the Convention shall also apply to disputes arising out of events which occurred prior to its conclusion. In consideration of their general political bearing, an exception shall, however, be made with regard to disputes arising directly out of the world-war.
3. The Convention shall not cease to be applicable for the reason that a third State is concerned in a dispute. The Contracting Parties shall endeavohr, if necessary, to induce the third State to agree to refer the dispute to arbitration or conciliation. In this case the two Governments may, if they so desire, jointly provide that the Tribunal or the Permanent Board of Conciliation shall be composed of members specially chosen for the case. If no agreement is reached with the third State as regards its accession within a reasonable period, the case shall proceed in accordance with the provisions ,of the Convention, bdt with effect only, as regards the Contracting Parties.
4. In the event of Germany adhering to the Permanent Court of International Justice at The Hague, or becoming a member of the League of Nations, legal disputes in respect of which the Parties cannot agree whether they should be referred to the Permanent Court of International Justice or to an Arbitration Tribunal, may, at the request of one Party within one month after the other Party has been notified, be referred directly to the Permanent Court of International Justice. This provision shall also apply, if a general treaty of arbitration containing a corresponding clause should come into force between Germany and a third Power.
THE HAGUE, May 20, 1926
v. KARNEBEEK ' v. LUCIUS