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922 INTERNATIONAL LAW AND POLITICS [Vol. 31:919the intercession of a peer. Moreover, the ensuing decisionsalmost never articulated the grounds on which they werereached.This situation, which <strong>some</strong> authors refer to as “the catastrophe”in relating the history of arbitration, continued untilthe advent of a young republic, the United States of America,bringing with it new ideas about settling disputes: first, in theJay Treaty of 1794, following the War of Independence, whichintroduced binding decisions by joint mixed commissions;then again in the Alabama arbitration of 1872 after the AmericanCivil War, which can be considered the real beginning ofmodern international arbitration, in the technical sense. Still,resort to international arbitration remained quite exceptional.Arbitration was the only form of adjudication existing ingeneral international law before the advent of the PermanentCourt of International Justice (PCIJ) in 1920. But unlike thesituation in municipal law, where arbitration is subject to judicialcontrol and is thus integrated into the judicial system, thequestion of bringing international arbitration within thePCIJ’s orbit was not even raised. For, in the circumstances, thedangers inherent in the multiplication of uncorrelated adjudicativeorgans were moot. These dangers arise from: the possibilityof conflict of jurisdiction, either active or passive, betweenthese organs; and the risk of contradiction or conflict offindings and interpretations undermining the substantiveunity of the legal order and increasing rather than decreasingthe indetermination of law through the exercise of the judicialfunction. And they were moot, even with the PCIJ, as long asresort to adjudication, through arbitration or the Court, remainedvery exceptional.Sir Robert Jennings has criticized, on several occasions,the adjective “pacific” in the title of the Hague Convention forthe Pacific Settlement of Disputes because it portrays the act ofgoing to court or to arbitration as an act so capital and exceptionalas to be the alternative to, and hence the equivalent of,the decision to go to war. In his view, it should be consideredas ordinary an act as it is in municipal law. However, the titleof the Convention probably reflected how resort to adjudicationwas then envisaged, thus underlining its highly exceptionalcharacter.
1999] CONCLUDING REMARKS 923The situation did not change with the succession of theInternational Court of Justice (ICJ) to the PCIJ after the SecondWorld War. An attempt was made, however, in the 1950s,by Professor Georges Scelle, to correlate arbitration to the ICJin his draft “Model Rules of Arbitral Procedure,” 1 which heprepared as special rapporteur of the International Law Commission(ILC). These Rules purported to establish a “lockingmechanism” (verouillage), whereby, once the parties have consentedto arbitration, every time a process reaches a deadlock,the resolution of the problem would ipso jure fall either to theICJ (in case of challenge of awards as ultra vires, or by requestsfor revision or interpretation) or to its President (in case offailure to nominate arbitrators or their replacements). Butthis draft was heavily criticized and resisted by states, thus revealingtheir strong preference for maintaining arbitration asa flexible, autonomous procedure which, while adjudicative incharacter, remains pliable to their will throughout its course.Since the 1950s, however, in parallel with the rapidlygrowing complexity and intensity of international relations, internationallaw has witnessed prodigious developments, notonly in updating its traditional fields, but also in expandinginto new and more specialized ones. This has been accompaniedby a proliferation of specialized judicial organs, on boththe universal and regional levels, such as administrative tribunalsof international organizations, the Panels and Appellatebody of the World Trade Organization (WTO), the new Lawof the Sea Tribunal, the incipient International CriminalCourt (ICC), the European Court of Justice, regional tribunalsof human rights, and ad hoc tribunals such as the InternationalCriminal Tribunals for the Former Yugoslavia (ICTY) and forRwanda (ICTR).Such specialized tribunals also exist in municipal law, butthe ambit of their specialized jurisdiction is well delimited inrelation to the courts of plenary or general jurisdiction, thejurisdiction of the latter being the rule, that of the former re-1. This draft served as a basis for the Model Rules adopted by the ILC.See Report of the Commission to the General Assembly, U.N. GAOR, 13th Sess.,Supp. No. 9, U.N. Doc. A/3859 (1958), reprinted in [1958] 2 Y.B. Int’l L.Comm’n 83, U.N. Doc. A/CN.4/SER.A/1958/Add.1. The General Assemblymerely “took note” of these Model Rules in Resolution 1262 (XIII),adopted in 1958. See G.A. Res. 1262 (XIII), U.N. GAOR, 13th Sess., Supp.No. 18, U.N. Doc. A/4090 (1958).
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