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The Abyei Arbitration: Procedural Aspects of an Intra-state Border Arbitration

Published online by Cambridge University Press:  22 November 2010

BROOKS DALY
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Abstract

With a looming referendum on the secession of South Sudan, the drafters of the Abyei Arbitration Agreement were faced with a complex intra-state dispute and a limited time to resolve it. The parties to the dispute agreed on a procedural regime to govern the arbitration, combining both traditional and innovative provisions on procedural rules, the constitution of the tribunal, the schedule of pleadings, transparency, financing of the proceeding, and the role of the Permanent Court of Arbitration. This article examines the key provisions of the Abyei Arbitration Agreement and their implementation during the course of the arbitration, and evaluates the case's significance as procedural precedent for future intra- or inter-state arbitration. The article does not provide an analysis of the substantive findings of the tribunal.

Keywords

Abyeiarbitration agreementboundary delimitationPermanent Court of Arbitrationtransparency
Type
HAGUE INTERNATIONAL TRIBUNALS: Permanent Court of Arbitration
Information
Leiden Journal of International Law , Volume 23 , Issue 4 , December 2010 , pp. 801 - 823
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Typical of instruments that foresee a ‘final and binding’ decision on delimitation, the Parties’ Comprehensive Peace Agreement of 9 January 2005 (hereafter CPA) does not provide a mechanism for review of the Abyei Boundaries Commission decision.

2 The Government of Sudan v. The Sudan People's Liberation Movement/Army, Final Award, 22 July 2009 (Abyei Final Award), paras. 486–536; Memorial of the SPLM/A, 18 December 2008, paras. 692–791; Memorial of the GoS, 18 December 2008, paras. 129–191.

3 The Abyei decision won OGEMID's award for Arbitration Decision of the Year 2009: Kyriaki Karadelis, ‘Abyei and Hrvatska Win OGEMID Awards’, Global Arbitration Review, 8 January 2010.

4 The Machakos Protocol, signed 20 July 2002. The referendum is scheduled to take place between 9 and 11 January 2011. A simultaneous referendum will take place in which the people of Abyei will vote on whether to remain a part of Northern Sudan or to become a part of Southern Sudan.

5 ABC Experts’ Report, dated 14 July 2005.

6 In the CPA, supra note 1, Ch. IV, ‘Resolution of the Abyei Conflict’, Art. 8(1) provides for ‘an Abyei Referendum Commission to conduct the Abyei referendum simultaneously with the referendum of Southern Sudan’.

7 Art. 34(1) of the Statute of the International Court of Justice provides that ‘[o]nly States may be parties in cases before the Court.’

8 Abyei Final Award, supra note 2, paras. 146–149, 153–155, 158–160 and 436–437, where the GoS alleges that certain procedural violations on the part of the experts constitute an excess of mandate. These alleged violations included, inter alia, the experts engaging in ex parte communications in the gathering of evidence that would later form the basis of conclusions in the ABC Experts’ Report.

9 The Eritrea–Yemen arbitration was preceded by skirmishes: see, e.g., Jean-Pierre Queneudec, ‘The Eritrea–Yemen Arbitration: Its Contribution to International Law’, in The Eritrea–Yemen Arbitration Awards 1998 and 1999 (2005), 1; Eritrea–Ethiopia Boundary Commission proceedings followed the 1998–2000 war: The State of Eritrea v. The Federal Democratic Republic of Ethiopia, Decision Regarding Delimitation of the Border, 13 April 2002, para. 2.13; the Guyana–Suriname arbitration (concerning a maritime delimitation), where the commencement of proceedings was preceded by an unlawful threat of force: Guyana v. Suriname, Award, 17 September 2007, para. 151.

10 The Government of the State of Eritrea v. The Government of the Republic of Yemen, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), 3 October 1996, Annex I – The Arbitration Agreement.

11 In the most sensitive arbitrations it may be worth meeting and discussing each article of the procedural rules to be adopted, even where parties intend to adopt a set of pre-existing rules.

12 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982 (entered into force 16 November 1994) (UNCLOS), Annex VII, Art. 5, which provides that ‘[u]nless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case.’ This is also common in state–state dispute resolution provisions of investment treaties: see, e.g., Energy Charter Treaty, opened for signature December 1994 (entered into force April 1998), Art. 27; Investment Incentive Agreement, 19 November 1997, U.S.-India, 1997 U.S.T. LEXIS 19, Art. 6.

13 Among its various gaps, UNCLOS Annex VII contains no provision pertaining to the challenge of arbitrators should justifiable doubts as to an arbitrator's independence or impartiality arise.

14 In the five UNCLOS arbitrations administered by the PCA, the adoption of procedural rules has taken the tribunal from as little as six weeks (in the Guyana–Suriname arbitration) to as long as ten months (in the Malaysia–Singapore arbitration): see, respectively, Guyana v. Suriname, Award of the Arbitral Tribunal, 17 September 2007, paras. 4 and 7; Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Award on Agreed Terms, 1 September 2005, paras. 14 and 16, both available at www.pca-cpa.org.

15 The Algiers Peace Agreement of 2000 between Eritrea and Ethiopia took an interim position, referring to existing procedural rules, but saying that the tribunal would ‘adopt its own rules based on the 1992 Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States’: Art. 5(7).

16 The danger in trying to reinvent the wheel is evident from many ad hoc arbitration clauses in treaties: see, e.g., Treaty between His Majesty's Government of Nepal and the Government of India concerning the Integrated Development of the Mahakali River including Sarada Barrage, Tanakpur Barrage and Pancheshwar Project, 12 February 1996, 36 ILM 531, where Art. 11, although empowering the Secretary-General of the PCA to appoint the third arbitrator if the parties fail to agree on this appointment, does not provide that the Secretary-General may be requested to appoint an arbitrator on behalf of one of the parties should it fail to make the necessary appointment of one of the first two arbitrators.

17 Users of the UNCITRAL Arbitration Rules 1976, for example, can refer to numerous publications to assist in the conduct of proceedings under those rules, including David D. Caron, Lee Caplan, and Matti Pellonpää, The UNCITRAL Arbitration Rules: A Commentary (2006); S. Abercrombie Baker and M. D. Davis, UNCITRAL Arbitration Rules in Practice (1992); and James Castello, UNCITRAL Rules, Chapter 16, Practitioner's Handbook on International Commercial Arbitration (2009).

18 The other is another unorthodox case: Larsen v. Hawaiian Kingdom, Award, 5 February 2001, Tribunal Members James Crawford SC (Chair), Gavan Griffith QC, and Christopher Greenwood QC, available on the PCA website at www.pca-cpa.org/showpage.asp?pag_id=1159. These rules were adopted by the PCA Administrative Council on 6 July 1993.

19 UNCITRAL Arbitration Rules (1976), available at www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976Arbitration_rules.html. UNCITRAL has just completed the revision of the 1976 Rules; the new Rules became effective on 15 August 2010.

20 Amendments directed at the participation of states include the addition of the waiver of sovereign immunity provision contained in Art. 1(2) and the doubling of all 15-day time limits imposed on parties: see PCA State/non-State Rules, Notes to the Text, available at www.pca-cpa.org/showpage.asp?pag_id=1188.

21 These rules have been used in thousands of contracts and treaties, particularly treaties for the protection of investments; see, e.g., North American Free Trade Agreement (entered into force 1 January 1994) and Energy Charter Treaty, signed December 1994 (entered into force April 1998), and were the model for the rules of procedure adopted by the Iran–US Claims Tribunal, the United Nations Compensation Commission, and the rules of the arbitral institutions of the Asian–African Legal Consultative Organization.

22 See Eritrea–Ethiopia Boundary Commission, Rules of Procedure, 11 April 2002, Art. 1(1): available at www.pca-cpa.org/showpage.asp?pag_id=1150.

23 See Eritrea–Ethiopia Claims Commission, Rules of Procedure, October 2001, Art. 1(1): available at www.pca-cpa.org/showpage.asp?pag_id=1151.

24 See The Kingdom of Belgium v. The Kingdom of The Netherlands, Rules of Procedure regarding the ‘Ijzeren Rijn’: available at www.pca-cpa.org/showpage.asp?pag_id=1155; The Kingdom of Belgium v. The Kingdom of The Netherlands, Award of the Arbitral Tribunal, 24 May 2005, para. 5.

25 See www.vlada.si/fileadmin/dokumenti/si/projekti/2010/Arbitrazni_sporazum/10.a_Arbitra%C5%BEni_sporazum_-_podpisan_EN.pdf. By its terms, proceedings under the Slovenia–Croatia Arbitration Agreement will commence following the signature of an instrument of accession to the European Union by Croatia.

26 As discussed later, the parties modified the PCA State/non-State Rules by providing for a five-member tribunal.

27 It was just as easy to modify the State/non-State Rules to provide for a five-member tribunal as it would have been to amend the State–State Rules to apply to an intra-state dispute.

28 Missing from the PCA State–State Rules and the PCA Optional Rules for Arbitration Involving International Organizations and States is the content of Art. 1(2) of the UNCITRAL Arbitration Rules, which provides that ‘These Rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.’ See also Douglas, Zachary, ‘The Hybrid Foundations of Investment Treaty Arbitration’, (2003) 74 British Year Book of International Law 151CrossRefGoogle Scholar.

29 If the application of the Netherlands Arbitration Act is allowed, then a fourth option for procedural rules should be considered, that being an ad hoc clause referring to arbitration in the Netherlands, whereby the Netherlands Arbitration Act would provide the procedural rules for the conduct of the proceedings.

30 The agreement to the application of the PCA Rules in Art. 1(1) requires that a tribunal be formed, so the first clause of Art. 1(2) adds nothing, while Art. 1(2)'s provision ‘that the PCA Rules shall not apply when excluded or modified by this Agreement’ does no more than Art 1(1)'s ‘subject to such modifications as the Parties agreed herein or may agree in writing’.

31 The rarity of arbitral tribunals with more than five arbitrators would indicate that the relative increase in legitimacy is less than the increased cost and delay encountered with more than five arbitrators. Seven-member tribunals are, however, constituted from time to time. At the time of writing, a seven-member tribunal was being constituted in the Indus Water Treaty dispute between India and Pakistan under the Indus Waters Treaty 1960, signed 19 September 1960: see Tom Toulson, ‘Arbitrators Appointed in Indus Water Treaty Dispute’, Global Arbitration Review (London, 21 June 2010), available at www.globalarbitrationreview.com/news/article/28486/.

32 The PCA State–State Rules provide that the two party-appointed arbitrators are to agree on the remaining arbitrators, while UNCLOS provides for an agreement by the parties. In practice, it is generally accepted that the party-appointed arbitrators may consult with the party that appointed them before agreeing on the remaining arbitrators, meaning that these provisions operate in a similar manner in practice.

33 UNCLOS Annex VII, Art. 3, entitled ‘Constitution of arbitral tribunal’, provides,

For the purpose of proceedings under this Annex, the arbitral tribunal shall, unless the parties otherwise agree, be constituted as follows:

  1. (a)

    (a) Subject to paragraph (g), the arbitral tribunal shall consist of five members.

  2. (b)

    (b) The party instituting the proceedings shall appoint one member to be chosen preferably from the list referred to in article 2 of this Annex, who may be its national. The appointment shall be included in the notification referred to in article l of this Annex.

  3. (c)

    (c) The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national. If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e).

  4. (d)

    (d) The other three members shall be appointed by agreement between the parties . . .

34 1899 Convention for the Pacific Settlement of International Disputes (hereinafter 1899 Convention), Art. 24; 1907 Convention for the Pacific Settlement of International Disputes (hereinafter 1907 Convention), Art. 45; however, these conventions lacked an agreed appointing authority. Where there was no agreement, the 1899 Convention deadlocked while the 1907 Convention solved the problem through the drawing of lots.

35 Art. I, Treaty between Her Majesty and the United States of America for the Amicable Settlement of all Causes of Difference Between the Two Countries (‘Alabama’ Claims; Fisheries; Claims of Corporations, Companies or Private Individuals; Navigation of Rivers and Lakes; San Juan Water Boundary; and Rules Defining Duties of a Neutral Government during War), signed in Washington, 8 May 1871 (hereinafter Treaty of Washington (1871)). (Ratifications exchanged in London, 17 June 1871.)

36 Draft of concluding chapter in Jan Paulsson, The Idea of Arbitration (forthcoming); other authors have pointed out that virtually all dissenting opinions in international arbitration are made by arbitrators appointed by the losing party. See Albert Jan van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’, in Mahnoush Arsanjani et al. (eds), Looking to the Future: Essays on International Law in Honor of Michael Reisman (forthcoming). Adding to this statistical trend, the dissenting opinion in the Abyei arbitration was critical of decisions that were unfavourable to the party that had appointed the dissenting arbitrator.

37 ‘One [arbitrator] shall be named by the President of the United States; one shall be named by Her Britannic Majesty; His Majesty the King of Italy shall be requested to name one; the President of the Swiss Confederation shall be requested to name one; and His Majesty the Emperor of Brazil shall be requested to name one.’ Treaty of Washington (1871), Art. I.

38 Professor James Lorimer, letter to Thomas Balch, New York Tribune, 11 April 1874., cited in T. W. Balch, The Alabama Arbitration (1900), 49 n. 35.

39 Despite this risk, several recent arbitrations have opted for four party-appointees and only one mutually agreed arbitrator: Eritrea–Yemen, Eritrea–Ethiopia Boundary and Claims Commissions, and the Belgium–Netherlands Iron Rhine arbitration. The last three modified the PCA State–State Rules to provide for four party-appointees.

40 Although pursuant to the terms of the respective arbitration agreements the Eritrea–Ethiopia and Belgium/Netherlands arbitrations were to base their procedural rules on the PCA State–State Rules, the parties amended the appointment procedure so that each would appoint two arbitrators rather than one.

41 The author speculates that experience in the intervening years led the PCA to abandon the approach taken in the 1899 and 1907 Conventions when drafting the 1993 State–State Rules. It is unclear why the Alabama precedent was not followed in 1899. Recorded comments from the Hague Peace Conference on the question are limited: ‘it is very important to provide for the case where there may be no such agreement [on the identity of arbitrators], and to determine, in that event, an easy and sure method of forming the arbitral tribunal. The first rule would naturally appear to be: the nomination by each party of an equal number of arbitrators and the designation, by all of the latter, of an umpire, whose function is most important in prospective cases of equal division of votes’. Annexes of the Seventh Meeting of the Plenary Conference of The Hague Peace Conferences, 25 July 1899, paras. 93–94, available in The Proceedings of the Hague Peace Conferences: The Conference of 1899 (1920).

42 Composition of the Arbitral Tribunal, Arbitration Agreement between Government of the Republic of Slovenia and the Government of the Republic of Croatia, dated 4 November 2009, Art. 2:

  1. (1)

    (1) Both Parties shall appoint by common agreement the President of the Arbitral Tribunal and two members recognized for their competence in international law within fifteen days drawn from a list of candidates established by the President of the European Commission and the Member responsible for the enlargement of the European Commission. In case that they cannot agree within this delay, the President and the two members of the Arbitral Tribunal shall be appointed by the President of the International Court of Justice from the list.

  2. (2)

    (2) Each Party shall appoint a further member of the Arbitral Tribunal within fifteen days after the appointments referred to in paragraph 1 have been finalised. In case that no appointment has been made within this delay, the respective member shall be appointed by the President of the Arbitral Tribunal.

  3. (3)

    (3) If, whether before or after the proceedings have begun, a vacancy should occur on account of the death, incapacity or resignation of a member, it shall be filled in accordance with the procedure prescribed for the original appointment.

43 Paulsson, supra note 36, calls mutual confidence in arbitrators the fundamental premise of arbitration.

44 ‘The Permanent Court is competent for all arbitration cases, unless the parties agree to institute a special Tribunal.’1899 Convention, Art. 21; 1907 Convention, Art. 42.

45 The PCA maintains a regularly updated list of Members of the Court, whom the PCA member states (110 at the time of writing) may appoint.

Art. 23, 1899 Convention, provides:

Within the three months following its ratification of the present Act, each Signatory Power shall select four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.

The persons thus selected shall be inscribed, as Members of the Court, in a list which shall be notified by the Bureau to all the Signatory Powers.

Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of the Signatory Powers.

Two or more Powers may agree on the selection in common of one or more Members.

The same person can be selected by different Powers.

The Members of the Court are appointed for a term of six years. Their appointments can be renewed.

In case of the death or retirement of a Member of the Court, his place shall be filled in accordance with the method of this appointment.

Article 44, 1907 Convention, provides:

Each Contracting Power selects four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrator.

The persons thus elected are inscribed, as Members of the Court, in a list which shall be notified to all the Contracting Powers by the Bureau.

Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of the Contracting Powers.

Two or more Powers may agree on the selection in common of one or more Members.

The same person can be selected by different Powers. The Members of the Court are appointed for a term of six years. These appointments are renewable.

Should a Member of the Court die or resign, the same procedure is followed for filling the vacancy as was followed for appointing him. In this case the appointment is made for a fresh period of six years.

46 To illustrate, at the time of writing the PCA was acting as registry in over 50 arbitrations, but in only four of these pending cases was it agreed that the PCA could make any disclosure about the case on the PCA website.

47 Statute of the International Court of Justice.

48 1907 Convention, Art. 44; 1899 Convention, Art. 23.

49 PCA member states regularly appoint individuals holding these and similar positions as Members of the PCA.

50 Assuming application of one of the PCA's modern sets of rules of procedure, all of which allow for the challenge (removal) of arbitrators who are not independent and impartial with respect to the parties to the dispute.

51 PCA letter to the parties of 16 July 2010 (unpublished).

52 For example, he is the appointing authority for state–state disputes under the Energy Charter Treaty (see Energy Charter Treaty, Dec. 17, 1994, 34 ILM 381, Art. 27, at www.pca-cpa.org/showpage.asp?pag_id=1068), was the appointing authority in the Belgium/Netherlands ‘Iron Rhine’ arbitration (see Procedural Rules, available at www.pca-cpa.org/showpage.asp?pag_id=1155, Art. 5(4)), and is the appointing authority in the Mauritian Arbitration Act for international arbitrations taking place in the territory of Mauritius (Mauritius International Arbitration Act 2008, available at http://supremecourt.intnet.mu/Entry/dyn/GuestGetDoc.Asp?Doc_Idx=7110944&Mode=Html&Search=No.,Art.12). Other examples are available at www.pca-cpa.org/showpage.asp?pag_id=1068.

53 Drafters of dispute resolution mechanisms should typically provide a neutral entity, such as the PCA Secretary-General, the ability to extend deadlines in the procedure for constitution of the tribunal, after which such competence can be vested in the tribunal itself. The co-operativeness of all parties to a proceeding cannot be guaranteed even at this early stage, so a failure to agree on an extension where one proves necessary may threaten to make the conduct of the procedure ultra vires the arbitration agreement, potentially requiring the recommencement of proceedings.

54 The ICSID Convention, for example, allows the parties to the dispute broad freedom in the selection of arbitrators, while the appointing authority (chairman of the ICSID Administrative Council) must appoint from a panel: ‘Arbitrators may be appointed from outside the Panel of Arbitrators, except in the case of appointments by the Chairman pursuant to Article 38.’ ICSID Convention, Art. 40(1).

55 Art. 4(3) of the Arbitration Agreement provides: ‘The Tribunal shall endeavour to complete the arbitration proceedings including the issuance of the final award within a period of six months from the date of the commencement of arbitration proceedings subject to three months’ extension.’

56 Abyei Final Award, supra note 2, para. 52.

57 Ibid., para. 66, n. 5.

58 See ‘CIEL and IISD call for an end to an era of secrecy in investor–State arbitration: UN body must support transparency in new arbitration rules’, available at www.ciel.org/Tae/Investor_Secrecy_27Jun08.html, New York, 26 June 2008.

59 PCA State/non-State Rules, Arts. 25(4) and 32(5).

60 There were over 2,000 viewers of the hearing through the webcast from 49 countries. The webcasts remain available on the PCA website.

61 ‘In summer 2004 the Methanex arbitrators further defanged their critics by opening their hearings to the public. Without the aura of concealment, arbitration became boring: Journalists didn't bother to attend the hearings.’ From M. D. Goldhaber, ‘Balancing Act’, American Lawyer, 1 August 2009, available at www.law.com/jsp/tal/PubArticleFriendlyTAL.jsp?id=1202432561749. (On 31 May and 1 June 2010, ICSID reportedly made its first webcast of an investor–state arbitration. Cite CIEL Article on webcast.) ‘Webcasting as a Tool to Increase Transparency in Dispute Settlement Proceedings’, CIEL, June 2010.

62 See PCA website at www.pca-cpa.org/showpage.asp?pag_id=1179.

63 The legal team representing the SPLM/A at the public hearing number 27 Counsel, Advocates and Legal Advisers, Abyei Final Award, supra note 2, at 25.

64 PILPG reports that it provides over US$2 million in pro bono legal assistance annually; see www.publicinternationallaw.org/about/index.html. One lawyer who worked on the Abyei arbitration informed the author that the market price for the services provided to only one side in the arbitration was ‘several million dollars’.