Document:- A/CN.4/36

Memorandum on the Soviet Doctrine and Practice with Respect to Arbitral Procedure, prepared by the Secretariat

Topic: Arbitral Procedure

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IN'fJmNATIONAL lAW COMMISSIONSecond session

MEMORANDUM

ON

TB:E SOVIE~ DOOTRm: AND

PRACTICE wrm RESP.B~T TO

ARBITRAL PROCEDURE

(Prepared by the Secretariat)

GEN.ERAL

A/CN.4/3621 November 1950

ORIGINAL: ENGLISH

/TABIJ3: OFA/CN)~/36

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A/CN.4/36Page 2

" _.• t'o' , ".

IV. COMl.\1ERCIAL ARBITRATION ••••••••••••••••••••• 17

lIT. COMMERCIAL AGREEMENTS 0' •• 4 • • • • • • • • • • • • • • • • • 15

v. THE PEACE TREATIES •••..•...••..•..•.....•.. 21

TABLE OF CO:NT.ENrS

I • ~!rEJC1r WR.I~S ••••• 0 • • • • • •• • ••••••••••• "

II. -mFJ\.TIES. • • • • • • • • • • • • • • • • • • • • • u • • • • • • • • • • Q •

VI • 'THF~ DICTIOlIAR.IES •.••••••••• 0 ••••••••••••• IJ •

VII. BECAJ?ITrJIATION ••••.•••••••• 0 • 0 •••••••••••••

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S9YI;ET DOCTRINE AIm PRACTICE WI:pH RESPECT TO ARBITRAL PROCEDlJRE

I. THE 1rRl(T vlRITE..."tS

~~O post-war Soviet text-books on international law state the U.S.S.R.'s

position with respect to arbitration.

The more comprehensive of the two texts, published in 1947 by the Institute

of Law of the Aoademy of Sciences of the U.S.S.R. under the general editorship

of Professor V. N. Durdenevskii and Judge S. B. ~ylov, ~nd issued by the Ministry

of Higher Edu0ati~n of the U.S.S.R. as a text-book for Juridical Institutes and

Faculties, stf1.tes the Soviet positj.on briefly', as follows (in translation from the

Russian):

Pos1tj_on of the U.S ..S.R. with rela.tionto questio~s of arbitration.

9. ~!le U.S.S.R. and-l!lternationaJ.:...~~bitration. The U.S.S.R., tal~ing.

into consideration tl1j,s character of internatj,Ol1C:.l justice, has beenreserved towerd internationa.l arbitration both as to its permanent Hagueforms and as to ad hoc courts; not shunning in maI~ cases settlement througharbitration of diiputes concerning questions of private internatiOllal law, theU.S.S.R. prefers ,for jnter-govarnmental disputes related to political matterethe procedure of diplomatic action and conciliatory commissions.

(Institut Prava Akademii Nauk S.S.S.R., lVIez:ldUnarodnoe Pravo, Moscow,1947, p. 475) 0

The para&~aph is preceded b~ a seven-page history of arbitration. It is to

this historical sketch that the authors refer when they state that the U.S.S.R•

has taken into consideration "this character" of international justice. The

autho~st conclusions, as ~ result of their historical presentation, are that

througr...Ollt its life the Permanent Court of Arbitration at The Hague has heard

cases of a rather secondary 1mporta~ce, whiie the Permanent 'Court of International

Justice was not the recipient of a single really :important dispute during its

existence.

The decisions of the Permanent Court of International Justice are found to

have been characterized generally by protection of the interests of the great

powers which directed the League of Nations and of the powers of the Little

Entente. Only in those cases in which the interests of the great powers went

separate ways were decisions found to have been registered againat one of them.

It is remarked that the cla.:ims of minorities in Poland, Rumania and elset'lhere

were sytematically dismissed on the ground of lack of jurisdiction or lack of

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definiteness. The Second World 1var is held to have proved Lenin correct when hesaid thnt no international court of arbitration could, of itself, save mankindfram new im~erialist wars (Lenin, Collected Works, Second and Third Btlssianeditions, 'Vol. 25, p. 281). It is noted that the UoS.S.R. has not adhered to theConvo!"!tic.ns for tt.e Paclf'ic Settlement of International Disputes, signed atThe Hague.

A Iwarly simila.'t' attitude is expresS-ed in the other text, written byProfessor ~o I. Kozhevnikov and bearing the note that it has been approved by theAll-Union Juridical ?art-+ Jme Institute of the Ministry of Justice of the U.S.S.R.as a study aid for part-time students. Soviet and Russian L"llperial practice, thelatter of which is not mentioned at all in the other text-book discussed above,is sketched in brief. Not all of the same conclusions are reached, however.The Permanent Court of Arbitration is thought to have decided a considerablenumber of "rather important cases, as for example that of 11 Nover:J.ber 1912

..campensatil~ Russian sU~jects 8ufferir~ losses dl~i1~ the Russo-Turkish'War of1871-1878 and t~~t of 6 ~~y 1913, on the detaining by the Itelians of the FrenchMail Steamship tCarthage t. or (pc 202). It is also remarked (in translation framthe Russian):

It must be emphasized that Russia exerted serious affirmative influenceon the inculcation of the idea of a court of arbitration in internationalpractice (p. 198). - -- One can affirm boldl;)'" that in the development of aninternational legal procedure and court system Russia unquestionably playeda leading role (p. 199).(]'. l·, KozheVl~ikov, Uchebnoe, Posobie po Mezhdunarodnomu Publiclmorn.uPravu. /Ocherki/~ ~oscow, 1947).

The ~elation between the participation in international arbitration by theImperial Russian Goverrment and its foreign policy is set forth as follows:

It goes wit.holtt saying that it ,vould be very naive to overestimate framthis fact as well as fram others, the sincerity for pacifism on the part ofprs-:i:'8volutionary TI'.lssia anp. of bourgeois diplomacy in general in these,times ~p. 199). . . 'The UQS.S.R.'s attitude tow~rd arbitration at the present time is set forth

in brief, but in greater detail than in the other volum.e, as follows:Soviet .diplomaoy has not repudiated in principle under all circumstancesthe institution of arbitration' /arbitrazh! as one of the peaceful means ofsettling international disputes. On the contrary, the Soviet Governmentthinks it fully possible (under certain circ~tnnces) to apply even tIlisprocedure for settling peacefully disputes arising between the Soviet stateand individual capitaliststat6s.

A/CN.4/36Page 5

/Il.. TREATIFS

Thus, the Sov:f.et Government"agreed at the meeting of the ExecutiveCamm.1ttee of' tho Moscmv Conference for Reduction of Armaments of'8 D€'cer:tbel~ 1922 to accept a draft convention on ncm-aggreseion and erbltr~tiou

/tret"Jiskoe razbiratelfstvo!.' The parties to this convention agreed that ifa dis?ute arose among thGm concerning qusat1cns alre~dy decided by the peacetreatj0s, or concern'~ territorial 'questions" the question giving rise tothe oispute would be referred to arbitration ltretelskoe razbiratel!stvo/:Y,n the event that it was fOU11d to be impossible 'bo settle the dispute throughdipl~tlc channelso '

In entering the League of Nations in 1934 the U..SoS.R. likewise a.cceptedin ge::'10ral the pr1nci:ple of ar'bitration /arbitrazh/ provided for in the ,Covenant of that organiz~t10n. The U.S.S.B. , however, in this case mad~ a

, substantial reservation to this effect -- that arbitrat:too /tre-te:t.skoe .razbiratel'stvo/ or judicial settlement, pToviq,ed for by Arti....le.G 12 and :t.3of the Covenant of the j~ague, could not be applied to confliots relating toquestions whioh had arisen befo~e ita entrance into the league.

Finally" participation of the UaB..S.:R. in the United Nations Organizatj.ononce again confirms Soviet diplomacy's p081tive ,approach ,in principle, toarbit:t'ation /arbitrazh!.. '

It goes without saying 'that ul'lder all circumstances there will re;ma.inunchar..ged that general principle of Soviet foreign policy, under whichSovle't diplomacy will always seek 'to obtain such a bench for the arbitration/treteiekie/ tribunals or for other eiIli1lar agencies as Will guar8.rite~ tothe U.S.SFB. the same meaSl~e of disinterestedness and Justice as is assuredother states (1'. 204)., '

Both of the volumes, f.'ran which the quotations have been selE)ct~, have

b~n seriously criticized by the Director of the Institute of 'Law of the Academy

of Sciences,,' Professor Eugene A. Koro.vin (see -his reView tranahted in ]?art in

American Journa.l of Intel'national law, Vol. 43 (1949), pp. 381-389). Professor

Korov:tn, who has long been one of the most noted or Soviet w:rit~,:s on

international ~~w, criticizes his colleagues for fai~ing to portray the Soviet

position toward international law with sufficient patriotic-pathos, and, in'

particular, for failing to explain the Soviet feeling that same states ~e trying

to subordinate the Security Cou.ucil of the thited. Na.tions to the Internat:t.ona.1

Court of Justice. He doee not, however, comment criticaJ.ly on the trea:anent' of

the subject of arbitra.tion in either VOlUme. S:1mil~ ~riticism of United States

and British attitudes toward the, Inte;rnationa.1 Court of Justice has be,en m&:t,e ~Foreign Minister Vysh1nsky (see this article "Internat,ionalL9.w and International

Organization" (in Russian), Sovetskoe Qosudarstvo i Pravo, (1948)., No.. 1, p. 1).

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The record of Soviet :p::'actice 'in' ·ti'eatles of th~ 1nt.er-war years re~t1rlg~ . '., ..' . ~

to the :pse.oeful:- s~ttlemont of .t4s);lUtes' :1n:d1~.B:tes. extellf3ive proviai~e 'for

Mixed COllImidSiQIlS, h".1.t arb1tJ:'ai:;ion ·procedJ,lres· under which a third party' ls

a:pIlo:i.rl~ed.as a 11 super arbiterh, as .umP1:r,-e" ..in aC;01'~ce 'W1tli provisions .

similar to those set forth in the Hague Conventions, have not b'een ·fOl.Lt."'ld.. , .

EI'he .si~1.atiQIl· to "'which Professol" Kozllev:nrkov.r~fer8as·an instance ~

Soviet wiL:irigness tc? .acce:Pt- B:r~it~tion is not ·8uf'ficient.'1y riu.ly reported to:permit a dete-rmi:na.tion·of the str..1.cttlre of the trib'U.tlB.l intende~. An

eXarail1..~tion· of h~s cited materials 'reV-ears'the :rollomng: .

The article of the itDraj"b' Convention on Non-Aggress101land an A,rbit~'tion

" -:;trete~Bkoe razbirat~l f stvo/, accepted by the ExeCutive Cammitt~e Of the

MosCOW' don:fel'~nce for Reducti~n. of '.Arma.i.ilents on 8 1)ecembe~ 1922," reB.~a :'aafOl).'O\lS. (in; translation from the Russian) ~ '.

.. Articl~5 .•·· The H.igh CorrtJ:'acting Parties are agreed that i1' a dispute... arises among' t.1l0!ll.over q~estions wl1ich have alrea~ been decided by the

pea:ce' "~r3a~ies, and 'over terri+..orial questions; the dispute which :haser1~9n~ will be transferred. to arbitral review /treteiskoe razbirat6;L" stNolin ~e eV8:lt that it proves im1)ossible to settle the diapu'OO tJ1i:'otigh·diplcrn.atic chani.wls. " . .'

.(See.··Kl.y'llch..~lkov ~ Y. V. and Sabanin, A. V., Mezhdunarodnaya P~11tika ..Nave1shego v'rein.eni v Dogovorakh, l~ot~kh i DeklaratsiyaJr...h• Moscow) '1928 ~

:' ·Vol. '3, .Pa~ :r;,J;·te:r;rr No~ 112, :p. 211). . . _ ....>

T:tle Dra,ft ConveJ1~inn ...'as not signed 't?Y i!he .partie!3 ·t? ,the Conferenc;e.. If

the parties had a procedure in miI,ld for the trib~l, .~ procedure ·is. ;not

a~aillil-ble to this study.as +t haa 'noi; been re:po~d1n.~ ~1c:J..aJ;1'f?oo:r.d.of· ';

doclltJ.E1~~s .re~~,ting to Sov1-€}t· fe:reign ]olicy. 'Whet~er ~e tribuna],- wa.~ to ,',' .....i.nc,l,ude a ,.th:t-rd al"bit:t'ator :.i13. not indic~ted. . '" .... ... ' ...... .,:.'.:

)?ro:V.is~ofls whi9h are typical :9'f. Soviet M",:*ate.r8:;~ treati~s::on:~;J3~~J.~Ct.!

of ~I:1i:.~able .settlelIlen~ :ofd1sJ;l1.1te:s. a;r'~ .~Otile. ;1~' 'tth~. ~·C.~vent;i.on c01lOelT.l1ng~/ .::

C9ncil~atiC?n Procedure between ~e Unionot .Sovi.et Soc1a1,.ist R~:pub+.ics.._and..L.atV;i.a~ If.. 81841.3d· in .Riga '18 June 19~~. (See SbOl"Ilfk DeistvuYU$P.chikh Dos<?vorqvJ,:

. .Sog~ashenii·i Konve~1ie.ii zak~yucJ:1ennykh 's,.XnC?~trannymi. J~.os:u.!3a;r'stV8IlP,:) :.o.oJ+e:~tiOfl

. " . ." ..at:. Treatie.s; ~ee1:J1ertf3 a~d C~yentfc>ns ,in Fo.rca" Conclu4ed. withFo!'eign,~iiate~;

Peo1)le 1 s Commissariat of Foreign Affairs~ U.S.S.~. - c~ted hereafter' as '

Collection of Treaties etc., UoS.S~p.. - Vol. VII, i933, 1)- 8. Also in

A/CN.4/36Page 6

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.Tli~ pei-t1nei1t art~~l~~ ~ 'setfortb "in translation treD' the Rhssiat1 as.J .

.'follows:

Article 1. The High Contracting ;Parties mutually bind themselves to:p-1'eSe'!:.t to a CQ..'!1cil:tatory Car.md.:S,~1on /Sog.la.sitel1ne,ya Kanissiya/ for'~lim~'l:le sst':.lement in accordance ·With the :p-":'Ov1s:.i.ons of this 'J.'reaty elldis:~~'I.t';'t$ af~ killd 'Which arise between them out ofcircuI!i.stanceso(\{m':j;l':ng. c..ft'e"r th~ entry into force'of the Treaty signad in JUga OnF€'lort::~::.-~r 5, 1932; between the Union of Soviet. sociai:i.ot Republics andI,G::via: 'Which cannot be settled th!'O"J.gh Qj plomaol,.Jic chalmels within a2'(;"asGnable period. of time. This obligation aPDlies in particular alsoto· GiD~llteB concere:J.rl..g t.he l."1.t.el"Pretaticn and execution of Treaties andAgreep-;C'n:ts already concluded er to be ~oncluded between· the H~gh ContractiDgPart.;ies.

Artiole 2~ 'The Conciliatory Commission provi.ded for,1nArtiele J. shallnot be :permanellt$ -but shall be formed apecia.l1y for each session. It shallmeet an.."1.;JeJ.1y' in r9gl.11ar sessIon, on a date set each t:lJ:n.e in agreement'With bot..~ High Contracting J?13.rties., ' .

Special sessio!lS shall be held., if in tPe opinion af One of the WA'Oparties 'same urgent spec:tfic s< :.nation requires them..

All sessions of the Conciliatory Ccumss'ion shall be held aJ.ternative17in MOEfCOW and R:i.ga. "The place of the first sess1'()jl shall be'· chosen by

.' lot~ .

.. As a general rule· sessions shall not last for more thall fOurteen days,.

,. A:ctic.le 3. The Conciliatory Commission shell be c'amposed of fourmembers, 'two· of 'tvhich shall be named by each of the High Contracting Partiesfrom amohg its O'i.in citizens for each session of the Comniss1on. '.

. Each c1' t.:ne High Contracting Fariies has the right tci call to i~said e:x:p9r-~s namad by it, lmo may sit in the COllllIl1ssion With the right ofa con3'.llta-l.;,ivEl vote •.

. The Chairmanship of each session: shall ~ in one of tbe membera..or theComm:i.ssion from the side in whose territory it is sitting.

A.ctic~le 4. The Conciliatory CQIlllDission has the duty of clarifyingdis:9Uted. q::lesti~s put before ;f.t a;p.d of propoliSing to both High CC'ntraetingParties a solution of the ques"iiion "",'bieh is f~ir and satisfactory toboth .J;aI'ties and: in IJ6.r-cicuJ.ar, which shall avert the future possibledisag:!:ee:nent bet"WeeJ1, bot.'1' pa.rties on. the question concerned'. ....

. If +.J1e Conciliatory Co1ll!I1issioo doe·s not reach a general IxropOSaJ.during Que e'essl::>n on ar.:y of the questions on the agenda, 'bhe question' mayagain bE:! presented to a special session of the,Conciliatory Commission,whicli must, however, take place net later than four· months after thefirst session. ' . . :....

Th~. resUlts· or each session of ·theCanciliatar,y Commission shalJ. beset 'forth in a report to the govel"l'lDlC!lts 0-: both IJEirtiess .

. , Publi~ati~n of the re:po;vt in llhole or in part':may ~cur. only With theconsent of both govermnent8'~: .

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Art:Lcl~ 5. Not later than f1fte$.l daYEI, before the date set for, aregular session" of the' Conciliatory COmmission each of' the parties shallnotify the other through dip::'ar::J;ltic cha.J1Ilels ef the list of questions'W.Dic:i1 it wlEhes revie'W'Qd at, ~e se8s~on to, be held. ,

In the event of notice or the calli.Jg of a special session, the partygtv1::Je.3 tb.9 n.otice :must declare to the ()ther :PSI'ty ths circumata.'J.ces ofi.:,-:--~e t'~',g6nt spscific situaticn, which are the basis for tl1.6 call. TheC('i!:i'.:liL.sion 12.i.st assemble not late~" than one month after the notice hadb~en rec0ivei. ~

" Article 6. Each High contracting Party ob~.igates itself' to providethe Got!!lllission wtth all facts useful to thl;i case and to assist it in everyway in c~~"'.t'Yir<iS out its tasks.

Jo_1:'tic:'.e 7. Both High Contracting Parties obligate themselves torefra~1 from an:r measure "Which coUld influence in an ~desi~ble mannerthe discussion 'of a::.ry q'....estion in t..'lJ.e Conciliatory Commission. Inparticular" th~y declare their reacUness to take into cmsiQ.eration forthis :PUI1J~se the question of pre'Ven~ive measures. '

Article 8. A q~orum of the Conciliatory Conmlission shall be presentonlY' lw"hen all meml'Jers c~J..led in t.he req'.l1'red manr..er are present.

If one of t.ne members is not 1.."1 a conditio..11 to partic:J.pate in the'Wor~ of the Coirrn:l.ssiro, the intere~ted party shall name a BUDst'itute forhjm not less thai.l thirty days a...fter the impediment has been established.

The, decision of the Comm:l,3sion shall be ad0pted on the generalagreement of all ~ i ts membe~"s.

, , Article 9" ~~he Conciliatory Commission shall present to bothgovernments a report on all dis!"lltes referred to it for l1eview. 'Thereport shall be p~esented. before the end of the session dtU'ing which thedisputed questiolls ha'\"e been review:ed, unless the contracting :Parties haveagreed to exter.tltne period.

The repcrt ohall contain a draft for the settlement of each disputedquestion presented to the CoIlllIl1ssion" if this draft h!:l.s been accepted byall members of the pomm.1ssion.

, In ;the event that the Co:nI!I1ission has been unable t~ reach 'agreementon ane general report, the report shall contain the proposals of boths1Ctes of t.ne Camn1ssi9n.

" "Artiale 10. Furt..'lJ.er details of the proced:ure shall be defined to theextent necessary by the Conciliatory C~ssion itself.

Article ll~ Each of :the High Coilt.racting Parties obJ.igatea itselfto 'inte:r.m. the ot;he~ party Within a reasonable time, b:ut not to exceedtic-ee months, whet.aer it will accept the proposal of the Commissioncontained. in the report. .

Article 12. COIl1j)ensation of tlembers of the Conciliatory Commission,as i'Tell as of experts' and otlLer l?ersOIle: retained by each of the HighCont'acting Parties shall be :pa.id. out of fund.s of the party responsible.

All -(;rliher eX)?enditures, COlmected with the activity of the Ccamnission

/Shall beT

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shall be divided equa.lJ.y between both parties. '

Ar1iicle 13. This Convention is an integral pu"t of the Treaty-, ,ccm.cluded. in Bigaon 5 "Feb:t"'.lary 1932 between t..~e Union of Soviet Socialist

Repu111cs ani Labia, and is £:uoject· to ratification. .

It. sha]~ COITl.6 boto affect on the excha:nge of ratificatians of thea:fC:'.'E,1:8:1ticnoc. t:'eaty.,

~l·~~:i.S' cor..'lJ"e.ntion she.ll' rem..~in in force for the same ter-A for 'Which theTraaty (;f 5 Fe'bru.ary 1932 has been conclud.ed.

A:..--tic1e,140 T!1is Convention is concluded in the Russ:l.an and r..e.tvianla:lo"U2..c;es 0 Both texts have eg.ua! force.

(Concl...le.ing pa...""tlgraIJhs a..Tld signatures).

O+l1er conven~ionS concerning conciliation have been concluded by the U.S.S.R.

'W1th the follcr-wo-lr.lg cO".mtr-lee:

92EY..:& - "Convention Co.'lcerning a Con9iliation J?~ocedure between

the UoS.S.R" and Germany, u ~lgned :l~ MoscOW~ 25 J aIlUar,Y 1929 ,,- (Collection. . \ .'of Treaties, etc., U.S.S.B., Vel" V, 1930,'P. 10, and XC': 219 ooS).

This Convention is in ,;Le...'"lgl.lage id.e:J:l'tiical Vi.th that of the Latyie.n

Cc:mventicrc., set fOl"th abcve 1 exc~pt that it has no Articles similar to.Articles

6, 7, 8 and 9 of the Latvian Convention. It 'WaS extend.ed 1ndefinitely by' El.. '.. . .. .

Protocol signefi in Moscow on 24 J'me 1931,' each par'ty retaining the right to

denounce it on OIlE;)' ye,:lr's notice, 'blit'not b~fore 30 June 1933. (Collection

of Treaties, ete:, U~S.SClR" Vol. VIII, 1935, p. 7 and CLVII:383 Ui-l'S).

~~K1;'1gdS:!E! - "Protocol Relative to theProce~ !.or the

Settlement' or' Q';estione outsCantling between His MaJesty' s' G~ernment in

the Un:i.ted. Kingiom 'and the Goyernment of the ~on of SoViet Socialist

Bepublics,p such Procedure to become O~rative 1Imned1ately on the Resumption

of full Diplomatic Relatj.ona between the two states, including the

Exchange of knbassadors", s~gned''::'n ~ondon, 3 Octob~:r 1929 - (Collecti,on

of Treaties, etc., U~S,S..R", Vol. ''''I~ 1931" 'p. 5; British Parliamentary

Papers J Rus'sia 'No. 1" 1929, emd•.3418, Correspan.dence regarding the. '~."

:Resumption of Relations nth the Gover.nmentof the Union.Qf' Soviet

"Social1sJ\i ':Republics, p. '7) It

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This Protoc'ol depa.-r>ted sharply fram :the pattern of the Convention With. . . .' -

Germany of 25 January 1929 in that 11; listed five B!l6c1fic subjects l1h1ch would

be regulated by it, and the procedure established for aettJ,amant of .d1spu.t,~sf.' . .' •

~e less ,deta.:"" "'ld. The pertinent articles read as follows, in the E%!glish text:

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of Song

Inyesti8

on 3Jun

p. 79 8.."1

IfAgreeme

j Bord~r D".lit etc., u.'l·)

J.~j Conventi:~I type of

andfor

Prticle 5Q ThElse e:t:;perts shall re;po2't to each of the plen1;potentiarieso~ ~1~ results reached in their joint e~tion of ti1e respectiveq"..1.6s1:,L:;:""1s a...-:.d on the solution the-reof which they suggest.

A::::tlcle 6. All agreements resul.ting from the negotiations bet'lo<-eent~e rlcnj.~oten·Giaries 6hall take the form of a treaty or treaties bei-weenthe tVf) GQvernme~ts.

F'i.:r.."i..?.nd: "Con"tenticn Concerning a Concilia.tion Procedti.re between the_.......~.Union o.f Sovi'Gt Socialist Re!lublics and Finland," signe9, in Helsinki,

22 April 1932. (Collect.ion C1f Treaties, etc., U.S.SoR., Vol. VII, 1933,

p. 24 and CLVII ~ 401 LtfilS) •

This Convention contains many articles which arG worded identically 'W1th

those of' the subsequent Convention With La....via of 18 June· 1932, but some of the

introductory Articles vary in l8J:lg'J.age from tL"1e Latvian Convention, although

they provide fcr en essen'bially similar procedure.

Est.ol'..ia: "Ccnciliatory COJ;lvention Detween th~ Union of Soviet

Socialist Republics and Est0r4a, 11 ~ig.Tleq. in MoscOW, 16 June 1932.

(Collection or Treaties, etc., U.S.S.B., Vol. VII, 1933, p. 34 and

CXXXI:309 ~ITS).

This Oonvent1on is in laI\B"'1a~e nee'f:':'.;Y identical to that 0'£ tha Lerl.;vian

Conten!-ion, except that it omits. the details set forth in Article~ 8, 9, 11

and 12 of the Latvian Convention, stating in Article 6 (in translation): "The

Conciliat.oI""J Cammissio.""l shall define its proCedure itself. 11

.!:2l~: "Convention Concerning a Conciliation Procedure Bet"\oreen the

Union of Soviet Socialist Re:rmblics and the Polish Republic," s1gn~d in

Moscow, ?3 ·Novem,ber 1932. (Collection of Treaties, etc., U.S.S.R.,

Vol,,· VIr; 1933, !le 15 and CXXXVI:55 rnTS).

The pattern of the Convention· is similar to that of the Iatvian Convention,

although the language is not identical. Ita article on procedure substitutes

the iollaw:tng fer the 'Words of Article 10 of th!J !.atv-ian Convention (in

translation):

Article 6. To the 3xtent i?hat the contracting parties dp not by Joint, agreellient decide otilerv.'1se, the COnciliatiOn Commission shall t!sf1ne itselfits pJ:ocedure, preserving, however, in· doing so the regulations set forthin this Convention.

.Article 4. The plenipotentiaries of the two Gove:r:nD'lSnts shall, ifnecessary, be assis~cdby joint c~ttees, the members of which shall be

; a1?1ointad in equ::u ni.Ul!.bE:lr by each Govel"DmElnt from among theiX' nat.ionals,whet210r c!'ficial~ or not, e:pecially acquainted 1Yith the matters unc.ert?isc1.'Gsion.

Ilrance:

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A/CN.4/36Page 11

~:, "Convention Concemll'lg a Concilia.tion Procedure between the

Union of Suviet Socialist Rapubl:!.ca and ·b...'1e French ReJ:lub:'ic," signed. in

Paris, 29 ::-:rcvembe1" 1932. (Colli3ction of Treaties" etc., U.S.S.R., Vole VII,

1933, :p. 29 anc1.. CLVII;~·21 liiTS).

t.l'::e J:a:~tern of ·the CQ~ven"l:;ion is the SBJl1e as that of the I,atv:la.."1 Convention,

exce;rr. t:t:lt, a proceo:ure is not detailed (it beiI'l.g left by JU·ticle 5 to the

OOIaJllssian i tBelf to define its 0'WIl Ilrocedure) and the basis for decision is

wore..ed", as foliows, ins.tead of as in Article ~t of the Latvian Co.nven-cion (in

trsnsle.tion): ,

Article 6. The Connnission is required to study the disputed questionsbrou.g~t to it by both go-rel"IlI!lents and to l'econnnend to them an interpretationwlUch it recognizes as based upon law, or an agreement which it finds just.

I!aly: "Treaty of Frieniship, Non-Aggression and Neutrality Between

the Union of Soviet Socialist Republics anq. Italy," signed in Rome on

2 Se:i:?'C6mber 1933. (C,:>113ction of Treaties, etc., U.S.S.R., Vol. VIII,

1935, p. 8, and CXLVIII: 319 L~J:1S).

This Treaty. has one article 1)ertaining to concilia.tion, this reading as

follows (in translation):

Article 6. Tb-e High Contrac'ttng Parties b:L"'ld themselves to 8'l'!.bmit toa conciliatory :p-'l;:"C'cedIl!'6 /soglasitel~na.ra protsecllra!. ques'iilons on Which adifforence ,of' o:r,j,ni,,:,n hB.s arisen between them, and which cannot be decided bythe cust.:>::naX';r dipJ.on:;atic cha.."'l..'1.els.

Treaties establishing c~~ciliation procedure for the settle~nt of border

disputes a.lid incidents are also found in the practice of t..'1e U.S.SoR. TYIJical

of these ::;>;r'ocedures is ~t established in the "Convention Between the Union

of SOTI.'3ti SOi~ialist- ROpUblics and the Polish Re~blic on ~e Method of.-

Inyest.igattr.g and Settling Frontier Inci~nts ~"1d Disputes, If signed in Moscow

on 3 June 1933. (Collection of Trea'~ies, etc., U.S.S.R., Vol. VIII, 1935"

p. 79 a"1d c..U.lI~265 n~s). This Convention is an eXIJS,nd.ed form of the

"Agreement Bet'~veen the U..S.S.R. and the Polish ReF.A'blic on th,e Sett1emeni; of

Bord~r Di3putes," signed. i.."1 MOf3cOW on 3 August 1925. (Collection of Treaties,

etc., n.S.S ..R., Vpl. Ill, 1932" .p. 55)., Pertinent provisions of'the 1933

Ccnven~ion indicating tpe Soviet-'conciliation procedure for this particular

type Or :Problem read as foll~lfs (in tra.."1S1ation):

Article 1. The Government' of the Union of Soviet Socialist Republicsand t..he Covernment Of ,the"J?olish Republic shall each name Representativesfor Border Affairs,. 0.0. ",,;hOlI\. shall lie the responsibility for investigating

/and deciding

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A/CN.4/36Pa~ 12

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ofCCI

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the"maypropersexpe

precotatContconu

particip

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to the mee

by tbe Par.j

/Arlicle 7.

and deciding border incidents and conflicts, and aJ.so dis!lutes betweenbordsr authorities, o.f t..lJ.e Contr'docting Pa:r"ties,in accordance 'W1th.A:r.~,iole 4 of' tM.s Con"'1ention.

The surnames and given names of tbe Re:.gresentatiYes for Bort~.er Affairsshall 'be :mutu~ly cr.WlI!l'.m~ca'ted through diplama;tic channels as oach newRG~:ros..}r..te.tive for Border Affairs is ap:poir.Lood. .

The r..U:.llbe!' of Represente;I';:f.vee for B~d.er Affairs and also theQ:1.s~;T.~cte over 'W:lich they ha.ve jurisdiction ar..d the pla:Jes of peOl:".wa.i.10ntr8sidenoo of ~~ese ?ersons shall bQ established by a Protocol affixed tot:-:j El Go:..went1cn. Tilis Protocol may be changed on mutual agl'eemer..t t.'b.roughd~plo]Dat1c channols during t.'1e :period in v,h1ch this Convention remains inforce.

Article 4. The Representatives for :a~')!'der .Affairs are reqUired to:

See "j~Jat the '1Jo:':"ae":" e.1):1iI1orl-1jie'6 of the Co::rfjract1:Jg Partissconform to '~e bou:J.da.ry treaties, cOClventiC?ns and agreements betweenthe Union of Smriet Socialist· Republics ?..r.d the Polish Republicin as :!!!lch as 'borCter disp"l1tes, incidents or co..T1i'licts ':!J1ly arice inconnection lJi:l:ih these treaties, conventions and agreoments;

Take ~!easures to prevent incii:3::lts or conflicts which cap. ariseOn the state borders;

Invest:'.gate a.n..l settle incidents and cUDtlicts which have arisenon ~he state border in ~-tictllar instances of /11 classes of casesare li8·~ed/.

A:r.'t~.01e 5. The Orders ownich have been adopted by c-o'th ReprelJentativesfor Eot-der .Affairs or b;T their Agents based UPC>:"1 an exhaustive s'1;uo.y ofthe dispute, i:nci1.ent or conflict, shall be fi.r..a].. Exceptions are Orn.eroado,I:ted in accordance l'iJ:lih Suo-section 11 of Article 4 of this Conve:nJliion,if the f:lUIll :Paid exceeds the maxtmum eata"!:>lished for all ouch accountingsby t,he Con't;ractiJ-:-.g Party required to pay, as cotII:l:un1cated throughdiploIils;G:J.c oha1'lr.els to the ether CO"···{vJ:'acting Party. In such cases thedecisions which he.ve beon advpted enter into force only after theiral))';Jr;,:,va.l by the People's Commissariat of Foreign Affairs of the Union ofSOYlet Sooialist Republica and the Miills'cry of Foreign Affairs of thePolish Re~~olic.

Q.uestims on which agreement has not been reached by the Agents of theRaprese:n.ta.tives for I;ord.er ACts.irs sho.ll be trBJ.ls:m.itted to theseRe:Fi."esentatives for discu~sion.

Ques"cions on which agreement has not been reached by the Representat1-vesfo:':" :Borc.er .Affairs shall be tre.nsmitted for settlement th:rough diplomatic.cban:nals • .

A...~icle, 6. Each Representative for Bor.der Affairs has the right onhis o·iID. initiative to tl'a.nsf'er any cass for settlement t.lu'ough dipJ.cana.ticchan."1els i informing the Beprasen~ative for Border A...-Pfairs of the otherCCD.tracting Party of that fact.. :N'3verth!dless, .in suc:Q. cases theRe:p!'ese:ltatj.ves for Border Affairs must carry ont the per~iDent

investigation of the case .and set forGh the result in a Protocol.

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A/CN.4/36Page 13

Nrtieie 1. A short Protocol shall be prepared concerniIlg ea.ch. meet1J.igof the Representatives for Border Affairs or of their Agentc, in whiCh theCC'lt'se of 'the meetlng and t.he decision adopted must be set fo:::'th in brief~The }):otocol must be propared in two identical copies in the officialInn j'..~ae:es of thf3 Co..."1tracting Partiel3. The decisions shall be considered. ~n F,lil.o.9ted beyc:nd tl:e posulbillty of subsequent change· after signatureof t:' le Protoc()l by the s.forem.entiol"J.ed 1!srsol1s. .A::-"ticle 8. The Representatives for Border Affairs shall establish,on ~.1.e lmsis of nutl.1al agreement, control - transfer points on the stateCC1'::1.0r thrQuSh which exchange of all correspondence shall take place withrelat.ion to the activity of the Representatives for Border Affairs and

al~o tr~ough which tho tr~"1sfer of persons, livestock and property shalltake plc.co.

A::·ticle 9. Mootines and sessions of the Re]?resentativos for BorderAffairs or of their Agellts shall take place on the proposal of one ofthem and, if posRiblo, at the time set in the invitation. A reply to theinvitation I1lltst be givon immacliately J and in any event not later than48 hours from the time at which the invitation was received.The Representatives for Border Affail"s of one Contracting party mustpersonally attend the meeting or session to which he shall be invited by

~le otller Re~r0Gentative for Border Affairs, except for cases when hecannot attend because of seriou3 reasons (illness, leave of absence,Yacation). In +-1ds event the Representative for Border Affairs shall bereplaced by his Deputy, 'toiho must advise the Representative for BorderAffairs of the other Contracting Pa.l,·ty of this fact in good time. Onagreemont between the Representatives for Border Affairs meetings andsessions of their Deputies may take place.rn meetings or at sossions of the Representatives for Border Affairs,their Deputies or their Agents, in adclition to the named persons, theremay also partici~ate a representative of the local agency of border

protecti~n,J 'With a cOnDultative vote .• and the necessary technicalpersonnel (secretaries and inteJ..'Preters) and also, in the event of necessity,expertis of each Party 0

Article 10. Meetings and sessions, to which reference is made in thepreceding article, Iilllst as a rule occur alternately on apposite aides of theotate bord.er. Nevertheless, the Representatives for Border Affairs of theContracting Parties may !J!l.:tually agree to depart from this principle ifconuideratians of convenience sugge~totherwise. 'AJ."1. aeenda for tho· session must be established through preliminaryconveroations or by an exchaIl.ge of 'letters. III extraordinary situations,'upon the agreement of both Representatives for Border Affairs or of theirAgents, questions not included in the agenda may be accepted for review.

SUbsequent articles established a regime governing the 1sSl1ing of visas toparticipants in thE;) sessions, and guaranteeing inViolability of the person andof business papers, together with the right to bring necessary food and tobaccoto the meetings. Expenses of each C~tract~ngParty are to be borne fUJ..+Yby the Party.

lA similar

A/CN.4/36Page 14

ct

t

bcr

11s

cItra

ia to

Betwee

signed

(509),T

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291>1

: more

~,

A siInilar pattern for resolving border disputes and 1ncidenta was

established by t.."J.e fc.llo~'1LT1g Agream~!lt8:

!.a~:i;~ - tJoSoS.R", 19 July 1926 - (Collection of Treaties, etc.;U"S,SJ;(., Vo'. IV, 1936" p. 30; LIV~155 L!~S).

?~~~.~ - U~S"S.R~; 8 AugJ.st 1921 - (Collection of Treeties, etc.,U.S.8"i~o, \101 0 rv, 1939, p. 35; LXX:401 !MS).

T~£"~~~ - UoS.S.Rt', 6 August 19~8 - (Collection of Treaties, etc.,U~S.So~o, Vol. VI, 1931" ~. 29).

;ri~~.d - U;,S.S.R~, 24 September 1928 - (Collection ef Treaties, etc.,U.S ~S ..1, ~, Volo V, 1930, p. 38; LXYJCII: 63 IJfilS).

A Carl'~';:G.l Conci2.iation COJIIl:Iission and local Conciliation Commissions composed

of rep:"'esen'tatives of t."J.e U.S"S ..R. and Rumania was pr'Jvided for 'by a Statute

aigned on 20 November 1923 (Collection of Treaties, etc., U.S"SoR., Vol. I - II,

1935, p. 252). The ]?rocedu.~:,~ estab1iGhed for this CO!lcilia'~ion CollllJlisslon,

which was to have Jurisdiction over border i:J.cidents on t..'l1e Dnester River,

follmwd. the :pattern of tohe Lat"lien Conifentioll of 18 June 19320

A mi::::ed commission to Ir...9.P the bOULdary between the UoS.SoR o and

Afghaniste..:..'l ~'re.s established b~r an "Agreement between the Union of SOViet

Socialist P..eIJFb1ics and Afghanistan on Border Q,uestions," signee. 1..'11. MoscoW on

13 June 19L16. (Vedom.osti Verkhovr.ogo Soveta, SoS.S;R., No~ 6 (460),

12 February 1941, p, 4) c Tho COIilIi!:tssioTJ. is to be c-::>m:posed of three

representatiV'es of each IJ8!'ty-' and. is e:rn.power'sd, to decide the owr.ership of

is1antls. The report. of the COIDlllission 1..1.th the description of the boul"ldary and

the map is sUbj,:;;ct to al1prova1 by 'the govenr;nents of the Contraoting Parties.

No procedu!'e for the Commission 'W9.S defined ;i.n the Agreement"

A si.'lIlilar Mixed Border Commission was prOVided for by Article 3 of the

"T:r.eai.iy BetwE:e..'l the Union of Soviet Socialist Rjpublics and the Firmish RepUblic

Concerning the Trancfer to the Territory of t:1e Soviet Th1ion of a Part of the

TerI'it/,)!'Y of F:!.=liand in the district of Yaniskoski Electric Station and the, . '

Regulatory Dam of Niskakosld ," signed in Helsinki on 3 February 19J.V{ (Vedo!i1osti

Verkhovno20 Sovet.s. S"S.S.R., No. 19 (413) :I;.l June 1947, :p. 4). The Mixed

Soviet-Finnish CO!lDllissj,on Jxr.·ovided for by article 3 of the Treaty l':aa directed

by a note atJ.:;ached to the Treaty, "to set up border .marJ:.:ers and to draw up a

detailed description of the line Gerving as the border of the aforementioned

territory and to ir.8cribe ,this line on a map of the scale of 1:25;000." The

line so defined by the Commission "laB "subject to the approval of both

governments. "

I

A/CN.4/36Page 15

" III. COMMERCIN:. AG:REEM:ENTS "

Soviet practice has been to provi~ for and utilIze arbitration in

settlomnt of disputes arising out of commerce. An example of such a provision

is to be fOlIDd in the "Treaty Concerning Trade and rravigation Between the

Un1c::l of Soviet Socialist Republics and Denmark,," signed in MoSCOW" on

17 August 1946 (Vedomosti Verkhovnogo Soveta S.S.SeR., No. 11 (465)"29 Narch 1947; 8: 201 UNTS). The pertinent articles read (in translation):

Article 14. The settlement of disputes which have arisen overcontracts relating to tra.<le betvleen the two countries may be reachedthroU&~ arbitration /arbitrazh/.

Each of the Contractipg Parties shall be prepared" at the request ofthe otherI to enter into negotiations for the purpose of .concluding anagreement concerning a uniform. and the best possible procedure forarbitration, based upon the principle of parity, and also concerning aprocedure for execution of arbitration awards. The statute setting upsuch an agreed upon procedure shall be retroactive.

Article 15. All disputes relating\ to commercial agreements cOncludedbetween Soviet commercial organizations and Danish individuals orcorporations are suPject" in the absence of an arbitration /treteiekoerazbil~atel'stvo/ clause, to the jurisdiction of the Danish courts if tbeagreement ,.;as concluded in Denmark and to the Jurisdiction of Sovietcourts if the agreement 'Yle.S concluded in the Union of Soviet Socialist'Republics • Nevertheless, the courts of another country shall have theright to try disputes in every instance in which their jurisdiction oversuoh disputes is established by a special condition of the oontract •

.An article, "Worded identically to Article 14 of the Danish Treaty (above)

is to be fO'U..'1d as Article 16 in the "'rreaty Concerning Trade and Navigation

Between the Union of Soviet Soci~list Republics and the Hungarian Republic,"

signed in Moscow on 15 July 1947 (Vedomosti Verkhovnogo Soveta S.~.S.R., No. 10

(509),10 March 191.'-8, p,. 4.).The article relating to ,arbitration clauses in commercial agreements ie

:Jnore dElta-iled than in the Danish Treaty. It reads as follows (in translation):

, Artiole 17. The Contracting Parties, obligate themselves to executeal'bit.ral alrards /arbitrazhnye resheniya/ in disputes arising out of 'commercial agreeDents concluded by their citizens" organizations orenterprises" if' the settlement of the dispute by an arbitration tribunal/arbitrazh/, whether ad hoc or perm""nent, was provided for in theagreement itself or in a separate e~ 3ement estabiiShing a for.m;oftribunal suitable for such a business arrangement.

Execution of an arbitral avTard" issued in accordance with theprocedure set forth above in this article" may be refused only 111 thefollOWing cases:

lea) if the arbit;raJ,.

A/CN.~/36Page 16

r

F

U

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IIv. COMMERCIAL

(a) if' the arbitral award, on .the 'basis of the laws ·of the countrywhere it was mu~e does not have the force of a final decision;.' .. . . .:(b) if the arbitral .a"lvard requires a.party to do e.."1 act forbiddenby the lalvs of the cour.:.tryin which execution of the award is sought;

. (c) if the arbitral'award 'is'contrary to the p~blic policy/~"..blicb.r..jri porY::idok! of the country in which execution is sought.

The decree on execut.ionJ as "\oTell as the execatiol1 of the arbitrala.T'1?.rds~ shall proceed in accordaIl.c~, with the legislation of theCUJ:_traeting Party execu.ting the a'Ward~

The wording of Artic:le 17 concerning execution of arbitral awarcls of theHu..TJ.Garip.,:l: Treaty is fO'h'L.'ld 1..'"1 ide:ltical form in Article 14 of the 'lTreatyClln~er.li...""lg Trade and Navigation Between the Union of Soviet Susialist Republicsand the Czechoslova..lc Re:t>:ublic," signed in Moscow on 11 De,cember 1947(Vedomosti Verkhovnogo Soveta S.S.S.R., No. 9 (556), 22 February 1949, p. 4).There is, however, no article corresponding to Article 14 of the DanishTreaty and Article 16 of the Hlli1garian Treaty (providing for tne settlement of

.. disputes arising over co:mm.ercial mo.ttel's between the countries concerned byarbitration) •

. The "Treaty Concerning Trade and Navigation Between the Union of SovietSocialist ,Republics and the People's Republ-ic of Bulgaria," signed in MoscoW

. on 1 April 1948 (Vedomosti Verkhovnogo Soveta S.S.S oR., No Q 10 (557),26 February 19)+9, P. 4) is similar, in resl'teot to arbl~ra't1on, to theCzechosla,vak Treaty, i.e., it has a."l a:t'ticle relating to theexecut-ion ofarbitral awards D'9tween commercial pe.nies but no article establishingarpitration in settlement of cOii.IJmercial disputes between the statssconce!'f:led.

Th3 ~'Trade T:cec.ty llet'tveen trJ.e Union of Soviet SOCiflJ.ist Republics and theS"riss Fed$l~~tion," signed in MOSCO"\oT on 17 March 1948 (Vedomosti Verkhovnogo

. Soveta S.S.S.R 0", No. 13 (560), 27 March 1949, p. 4)~ follows the form. of theTr3<lty "Ivith Bulgaria. There is no provision for ,arbitration between the t1'TO. " .' :states "I'Thieh are parties ,to the agreement, but only the p!'ovisi~ of theTreaty "Idt.h Bulgaria relating to the execution of, arbitral awards Iilade inconnecticn with disputes involVing cammerc~al parties which are corporationsor individual ciM.zena of the two states"·

A/CN.4/36Page 17

I

IV. COMMJi1RCIAL ARBITRATION

i~t,­, .

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Co:mnerctal 81"bitration has long been a part of the commercial practice of

Soviet s'~'~e tl~ading corporations. Since the subject is one relating to disputes

ariBtr~i3 01.'.t of transactions between indiViduals or cO'I'];lorations, ratner than

state.:! J It ~oes not seem pertinent to the subject of this memorand.um. It may be

adeCl~.';.5.t.e to i!:',dicate only that two Arbitration Commissions exist in the U.S.S.R.. .

to hm:..:L:e f.:>re:tg:l !Datters. A Statute for a Maritime Al~bitration Commission of the

All-Union C~.:£lmber of Commerc.e was approved. by the Central Execut~ve COl'lnnittee of

the U.S.S.R. on 13 December 1930. (Collection of laws, U.S,S.R , 1930, Part I,

No. 60, Article 637).The Commission is composed of 25 members (increased from 15 by an Amendment

to the Stotute under date of 8 JClluary 1933, Collection of laws, U.S.S.R., 1933,

Part I, No. 2, Article 12) from which each pf;lrty to a dispute names an

arbitrator. A t~ira. member is not selE:cted U!'J.less the two arbitrators cannot

reach agree!!l6Ilt on the award. Such a third member .is named by the two

arbitrators, and if they cannot agree, the Chairman of the Commission names him.

If the parties so dE:cide, a single arbitra tor !Day be named by the Chairman of

the CommisS:!.O:1 to make the award. Appeal from the alrard lies to the Supreme

Court of the U.S.S.R., loihich may set it aside and remand it to the Connnission

i.f the lavr has not been properly applied or has been violated by the arbitrators.

Rules of p:::'ocec.urc were issued by the All-Union Chamber of Commerce of the

U.S.S ..R, on 8 Fe1>rv.ar-y 1931-

Non-Iaaritime disputes arising in foreign commercial intercourse :may be

refer~"ed tll:;'''OUgh the I!lodium of an arbitration clause in 8 contract to the

Foreign ~"ade Arbitration Cor.mUssion of the All-Union Chamber of Commerce of the

U.S.S.R. This Arbitration Comm1ssi9n was created by decree of 17 June 1932~

(Colleetion of TJal~s, U.S.S.R., 1932, Part I, No. 48, Article 281). The

Commission is a panel of 15 persons named for one ye!=lr terms from representatives

of Soviet treding, 1r~uBtr1el and transport organizations and others (largely

Professors of Law) having special kno~Tledge of foreign trade. Appointment of

arbitrators by the parties and of an u:rnp1J:'s in the event of inability to reach·

an agreement on the part of the two arbitrators fo1l9ws the practice of the

Mariti:r.1e Arbitration Comm:1asion. There 119 no appeal, however, from the awards

of the Commission. Ru.lee of procedure detail the steps to be taken by' the

/parties

..'$.

:

A/cN.4/36Page 18

parties in submitting disputes. (Pl.1bl:J.shed in English with a translation of the

statute in a brochure e..'"lti-cled ''0' .S.S.R. Chamber of Commerce, ]'oreign Trade

Ar"bitratio.':l COI!.ilrLission, " Moscow, no date).

Tha pl·9.~tice of both tribunals is indicated or.J.y partially. Decisions for

the first f:l.'ve yeara of the Maritime Arbitration Commission are published in tl-ro

voli.llJ1.$s e::.lti..tl.ed. "Sbornik Reshenii Morskoi Arbitrs,zhnoi Kommissii pri Vsesoyuznoi

Tor[;oYoi P6lste" (Moscmr, 1936), indicnting that 65 cases were decided in the

first five J"ears, thirty-six being between Soviet organizations and foroi~Grs.

Tho All-Ur.:.ion Chamber of Commerce of the U. S. S.R. issued an official report

in 1941 on about five years work of the Foreign Trade Arbitration Colllr!lission in

wh~ch 29 cases decidei during that period are reported or abstracted.

(Vneshnetorgovyi Arbitrazh, Moscow, 1941). The casss concernea. dis];lutes

b~tween Soviet state tradiD5 coprorations and ]~lgian, Canadisn, Dtltch,

Egyptirm, ~glish,\l French, German, Greek, Norwegian and SvTea.ish parties.

PElrhaps the most publicized arbitl~ation of a commercial character was

that between Lena Goldfields ComlJ6ny, Limited, and the U.S.S.R. The provision

relating to the Arbitration Court in the concession agreement of 30 April 1925

we 8 the follawl"e.

Parag~'a:ph 90

f.ll disputes and misund.erstand.1nGs concerning t!le interpretation orexecution of' the present agreement end all ap:pendlcee to it 8h511;> on therepresentation of either party, be e::mmin~d by t:!.1e Arbitration Court.

The Arbitration Court shall be composed of tr..ree (3) members, one ofwhom shall be seJ.w~ted by the Government, one by the Lam GoldfielisC01TJ.p'8T,JT and the third., w.110 is to be the. super-arbitrator, shall be chosenby ~u1j,e t{>TO parties together by IIIlltual a·grecment.

If s'l;'.,:,~h agl'ee:1lent is not rea.ched within 30 (thirty) days from the dayof re~ei];l"h by the defend.ing party of a 'lor.ritJ~en summons to the ArbitrationCC:Art) gi T.!.:r.~g an ex:pos:'Ltj.on o-Z the matters in diflpute ~ and the desigrlation ofthe F!".imbcr of the Court f:el~cted by the prosecuting party,\l then, within2 ('1:i";iO) 11~6ks 2 the Government shall nominate 6 (siX) candlCl.ates fr~I:l amengthe tY'o:tessors of the 1're10e1'g Mining Academy or of the Royal TeclmicalEib~ S~h0~1 of S~ockholm a~d shall reque~t the Lena Goldfields Comp3ny toappoint O.£le of t:l(7~ a 8 . super-arbi t:rat0r within a period of 2 (two) weeks.

If tbe Lena Goldfielc.s Company fails to appoint the super-arbitratorwithin the said 2 (tt~o) ~Teeks, t.herebeing no ins"J.perable obstacles toprevent s'l1ch appoi..'"ltment, the C'-roverrunent. shall be entitled to request theC~~cil of one of the said higher acaaemic institutions to appoint a super­arbitrator from 8mo':'1g the aforesCJid 6 (siX) cand.idates nominated by theGovernment.

IIf the Government

A/CN.4/36Page 19

The Ar"!)itration Court shall appoint a permanent secretary, who shallkeep recorda of all proceedings of the Court' a sessions. The remunerationof the prosident and the secretary of the Court, as well aa the latter'se:x:pensos, shall be paid by both parties in equal proportions. Each of .the parties shall pay his Oll"Il arbitrator a:'ld his eXIJenses, as well aa thecosts connected with the br:lnging of a suit before the Cou:fit.

Matters to be settled ·OY the Arbj.tration Court :must be presented inwritten form to the preside~1.t of the Court, and. the party bringing enaction must provide the other party with a copy of its declaration to theCourt. The eupe:~-arbitrator shall appoint the place and date for the holdingof the first session of the Court.

When appointing the date and place for a. session of the Court to beheld by the Buper-arbitrator and (s1c) the Arbitration Court shall giveconsideration to:

(1) the refisonable length of time required for either party to makepreparation for departure and arrival at the appointed place at the propel'time, and .

. (2) the accessibility of the place being auch that either pa.rty canreach it by the date fixed.

However, if either of the parties encotm.ters insuperaple obetacles'to fue ssu0.ing of their members to the Court or of the Court president intime to reach the appointed place at the proper time, early measures mustbe taken to infor'm. the BUper-arb1t~atorof the Arbitration Court of. th1scircumatance.

In any case, the super-arbitrator or the Arbitration Court in theevent of the absenoe of one party's representatives to the Cotll't, shall.. ondeolaring a session open, make a full statement relating to the matter indispute, snd the reasons for which the session has been called.

The Arbitration Court shall have full power thenceforth. to fix theplace and time of its sessions, as well as to settle methoda and order ofprocedure. It shall be obligatory on each of the parties to aupply theCourt, at the time it requires, .with all poas:f.ble information andevidence relating to the case l'1hich are at their disposition, regard beinghad to such as may be of State importance.

If the Government" in the absence of insuperable obstacles" fails tonominate 'tJ.'1e 6 (six) cal1clidates for the BU.psr-arbitratorship within thesaId peried of 2 (t",O) weeks, the Lena Golo.fields CoIn.pa:n:r shall be entitledto r9'll'!.est the Cou..'"lcil of one of the aforesaid higher academ:ci:c.ctJ..L·...c~ions to nomi."1ste 6 (six) candidates and to appoint a BU.per-arbitratorfr::.:u. er':.OIlg tbeir nu:aiber, as stated above.

If upon receipt of a notice from the super-arbitra.tor giving the dayanCL plE'.~.e of tue first 6\3ssion of the CO".l.rt one of the rarties, in theO"i.:iic.'::(;8 of inm'.perable obstacies, fails to send his arbitretor to theA..;'tlc·,:,etion Cou.rt or he refuses to :Participate in the seBsion, then thematter in dispute shall, at the request of the other party, be settled bythe surer-arbitrator and the other member of the Court, such settlement tobe %.:'::0. O.i'lly if lU13nimoua.rt

. of

n

ihe

III(

Ir

l'TO

noi

IAll decisions

I"

A/CN.4/36Page 20

AJ~ decisions of the Court must in eooh case be made in written formand a copy o~ ea~h ae~ision must i~~.ediately be sent to the two p9rties.Ev:~:~:r n:=.jority c'lccii:!icn of the Court shall be f:i.n-al and binding for both:p~rt~ es a.n1 shall inllediDteJ.y be put into execution.

If the .fI.l'oitro:'.::ion Court co::nes to a decision reClniring one of thePCyt.:i.""s to dJ so:r.9t.hlng or to re::rain from cloing flo1!l8thing, it shall, at"'1:..'3:'(I;..1e ti::ne s decide and lrarn the said :party of the cOllsequences aC0rn:'ngi'0X' f'3i"inl'e to csrrJr out its G.t3cision, namely, it 811['11 i!!:pose the paym-3ntef a ~Gr-~ain ste! to t:1e other P1:::1"ty, or it. shall fluthorize the ot~lf3r rD.:i."'tyto Cf.:r:-:y ont the n~glected work at the ex:rense of the defaulting :perty, orit s:L:-!..l rteela~e the ngree".llE>nt cmnulled, the latter only at the reCJ.uest ofthe pl.Jintiff.

(Centre.l C~l1ce8sions Comrrd.ttee of the U.SoS.R., DOCUlllenta CO!l.ce:rn:lng theCi)~::'9 t01"l,Ce ef the Arjitrn tion CO'J..rt Set up 1..">1 Co:-.nection 1d.th the QuestionsOutsta::'11ing ])etiveen the Lene Goldfields Company Limit0d and the U.S. S.R. ,~oocow, 1930, pp. 44-46).

Iv. THE PEACE

A/CN.4/36Page 21

v. ~m PEACE TRE..llTlES .

Articles of the Peace Treaties with Italy, Finland, Bulgaria, Hungary, andRumania provide procedures for the settlement of disputes, t-Thich m'a pertinent tothis study.

,j 'llha provisions of the Treaty with Italy, signed on 10 February 1947, read asfollo~s in the EP~lish lan~Guage text, with insertion of the words used in theRues ian lanGUage text for "Coneiliation Cammiss ion" •

Part IXSettlement of Disputes

Article 83.1. Any dispute which may arise in giving effect to Articles 75 and 78and Annexes XIV, XV, XVI and XVII, part B, of the present Treaty shc1.ll bereferred to a Conciliation Commission /Soglasitelfnaya Ko~s8iya/ consistingof one representative of the Govermllent of the United Nation concerned andone representative of the Government of Italy, having equal status. Ifwithin three months after the dispute has been referred to the ConciliationCommission no agreement has been reached, either Government may ask for theaddition to the Commission of a third member selected by mutual agreement ofthe two Governments from nationals of a third country. Should the t:vroGovernments fail to agree within two months on the selection of a thirdmember of the Co:umission, the Governments shall apply to the Am.bassadors inRome of the Soviet Union, of the United Kingdom, of the United States ofAmerica, and of France, who will appoint the third member of the Commission~If the Ambassadors are U11able to agree within a period of one month upon theappointment of the third member, the Secretary~eneralof the United Natior~may be requested by eitller party to make the appointnent.

2. When any Conciliation Commission is established under paragraph 1above, it 9hall have Jurisdiction over all disputes which may there~fterarise between the United Nation concerned and Italy in the application orinterpretation of Articles 75 and 78 and Ar..nexes XIV, x:r, XVI and XV"II,part E, o~ the present Treaty, and shall perform the functions attributed toit by those provisions.3. Each Conciliation Commission shall determine its own procedure,adopting rules conforming to justice and eqUity.4. Each Government shall pay the salary cf the member of theConciliation Carr.m.ission wham it appoir~s and of any agent whom it may

desi~1ate to represent it before the Commission. The salary of the thirdmember shall be fixed by special agreement between the Governments concernedand this salary, together with the cammon expenses of e~ch Commission, sr~llbe paid in equal shares by the two Governments.5. The parties underta.ke that their authorities shall furnish directlyto the Conciliation Commission all nssistallCe which may be within theirpower.

/6. The decision

1""·.··.'·.'.···.···1....,

I'J,:1

~~:

A/CN.4/36Page 22

6. The dec:f,sion of the majorit~ of the members of the Commission shallbe the decisioll of the Commission, and shall be accepted by the parties asdefinitive and biudir~.

(~. So Department of State Publication 2960, pp. 166-167).Settlement of disputes arising under other Articles of the Treaty than those

Bet forth in Article 83 is prOVided for by Article 87 in the following words:

1. E':{06pt where another proced~ is spocificaLl;>r provided under anyA::~t:tcJ,e of the present T~eaty, any dispute concerning the interpretation ore:c5cutj.on of 'the Treaty; which is not settled by direct diplomaticneeotlatior~, shall be referred to the FOl~ Ambas3adors actir~ underArticle 86 except that in this case the Ambassadors will not be restrictedby t~i.e t:i.Ile 11mit provided in that Article. Any such dispute not rE-solvedby the~ withi~ a period of two months shall, unless the parties to thedispute uutually agree upon ~~other means of settlement, be referred at therequest of either party to the digpute to a Cmmnission cc~p0ged of onerepresentative of each :party and a third member selected by mutual agreementof the two parties from r4ticnals of a third cOlmtry. Shculd the two partiesfail to agree withi."1 a period of one month upon the appointment of the thirdmember, the Secretary-Gen3ral of the United Nations may be requested by eitherparty to make the appointment.

2. The decision of the majority of the members of the Connnission shallbe the decision ef the Commission, and shall be accepted by the parties asdefinitive azld binding.

(ey. cit., p. 168).Provisions in the treaties with the other defeated states are essentially

s:lmila:r, although not identical, there being no' requirement in the Bulgarian,

Finnish, Hungarian and Ih~nian Treaties that a third mamber of the Ccm~ission for

specialized problems be a national of a third country, although sucli a provision

exists in the article relating to the Camm1ssion which shall interpret the general

articles of the Treaty in the absence of agl'eement between the representatives of

the parties to the dispute.

/vr. THE DrC'rrONARIES

.Three.

the subjeo

.ab'ove f:,:,(,m

.give tllt'} ft

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arbit'

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questi2. Aand ra/Trete

dispu.tA't'';)~+'t'---Eosh6rJ

Sconcil.Concil

A/CN.4/36Page 23

VI. TJ;IE :PIC~ION.ARIES

.Three. 'Words· or phrases appear in Soviet teAts and treaties concerned with.. ..... .

the Bubjsc-lj of ar"bitl'ation,. T:bey mve been :L"1dicated in brackets in translations

·ab·ove f:-:-c.,m te:>.."ts and treatiss.. They are "Arbitrazh", "I'!'eteiskoe Ra.zbiratel'stvo"

a..'l'J.d "S~;g:'e.;:.:~ tePll~ya Kommissiya" • Soviet dictionaries of the RU.ssian langu.age

'give tilt'} f().1.1cvrir..g definitions ..

:£~1o~!,y" o~~~.ian Laneua.eie, compiled by S. I,. Ozhegov, Chief~'li':;0:(,_ Ac.aG.3Illl.oia..."l Se> P .. Obn.orrucii, published by the Institute of theBuseiarj, Language of the Academy of S~ience8 of tl1e U.S.. SoR., Noscow, 1949./Slova:." s I'\usS};:oBo Yazyka/. t

AY·b1.+.r!:'.zh - The decj.sion of disputed questions by aJ....bitrators, by anarbi-ljr€:itrIbiinal /Tretelskii SUd/.

~:et~~k~.! - Releting to the trial of a dispute, of a conflict, bye..third, dl£interested ?arty.

I • Soglasitel 'n;yi _ Serving to remove disagreement:.. A Concilletiori.Conn:n.::.'fiSIOn IS,~glamel 'naya Komm:i.se.i;Y~8/.

. E~':!:~~J.::c.12.!cti~!7 .of t;w .B2s9itp Ia~:!:§~, co~iled. byG. o. Vinoku.1:', Frof. 13, A. Larln, S. I. Ozh13gov, B, V. Tomashevskii,.Prof. D. N. Usl1akcv, under the editorship of Prof. D. N. UsN.ili:ov, .published by the st~te Diction3.ry - Encyclopedia Press, M08CO'W~ 4 vols'.;1934-194o~ /To]Jrovyi Slovar i Ruaskogo Yazyka!. .

Arhit'l:'e.lh - (French arbitrage). 1. The decision of disputedqU6stTOziBbyarbit:::'ator,J (1ai-1). ~sfer a ~uer3~on to arbitration..:,2. A commercial operation ba.sed upon th0 use of differences b pricesand rate3 of exchange (trade). 3. International Arbitra~ionTribunal/Treteiskii Sud./ (law).

~i~ - In meaning related to the trial of any conflict, of adispv.te by a third disinterested party. Arbitral judge., jT. Sud 'ya/•A1'::>:+'t'~l Court IT .. SUd/. ~~l decision of~u.te !Treteiskoeltosh6:nle lConflikta/. ...

§~gJ.ftsi'tel 'llyi ... (Bookish, official language). Sel"ving to compromise,concil.L-~te something, el~mi.ns.te difference of opinion" contradiction. AConciliation Commission jSoglasitel'naya KommisSiya/.

/VII. BECJI.PlTOLATION

•

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De11II!a

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Treatconc1­

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the t1i

VII. RECAPITULll.TION

Soviet text 'Writ~rs accept erbitra.tion as a means of settling disputesbetween Ert.,'l.tes.

Soviet diction'll"Y defiI'l..itions indicate a use of t!J.e word in connection with:~decisj.0:_~.a of d.ispu.teci. questions by a third disinterested party. Pra.ctico :~inCicC'.tas,ll h0vever" a ma.i:'ked preference foI' mi:red cow~ssions, and even S"l1ggests ~a che.ng::"llg l:Jeaning for the "'-<')l:'ds "a.::'b1trazh" and "treteiokoe razbiratel l stvo". .iFor example, '!';non the word "art..itrazh" is used in the recent treaties withDenmaJ.'k and :a'..mgary, there are ~~dl1.ed tlle 'Words "1.'"1 accordance with theprinc11I1e ci' parity. 11 This modifiE.r suggests that the J;art:i.es have in mind anarbitral procedure which makes no provisio~ for a third disinterested party tothe arbitration to serve as a super-arbitrator or umpire.

Older treaties use the loroj."ds "arbitrazh" and "tl'eteiskoe razbiratellstvo"to refer to procedures which m9ke no provision for the naming of a thirddisinterested party.- Stlch a procedure j.s proYided for only in the PeaceTreaties end. in connection "rith disputes which arise out of connnercial contracts.·concl~ded by iniividuels and ccrpor~Gions of foreign states with Soviet statetrading corporations. Even in these i~Elta."1ces the third party is chosen onlythe two arbitrators named by the parties are unable to reach agreement.

I