15.Procedure before the European Court of Human Rights

An application can be lodged before the Court by a Contracting State (State application) of by an individual (individual application). Each application is assigned to a Section, and the Section President appoints a rapporteur for that particular case. The rapporteur examines the case to determine if it should be handled by the three-member review Committee, or given directly to the Chamber. If the case is given to the Committee, the members can unanimously declare a case inadmissible and no further examination is necessary. Applications deemed to be admissible, however, along with those referred directly to a Chamber, are reviewed by the Chamber. At any time, the Chamber may refer the case to the Grand Chamber if it “raises a serious question of interpretation of the Convention or where there is a risk of departing from existing case-law.” Parties to the case have one month to object to such a referral.

The first stage of the proceedings is usually written, and it is here that the Chamber decides the merits and final admissibility of the case. The Chamber may then request further evidence and observations by the parties involved, including requests for “just satisfaction” by the applicant. The President of the Chamber can also request submissions from Contracting States or individuals not directly party to the proceedings. The Chamber may decide to hold oral hearings on the case, though the majority of cases do not require this. During the entire process, the Court’s Registrar can work toward a friendly settlement between the two parties.

Judgments are decided by majority vote within the Chamber, though individual judges can attach separate opinions to the final decision. Both parties to the case then have three months to request that the case be referred to the Grand Chamber. Requests for referral are analyzed by a panel composed of the President of the Court and each of the Section Presidents, minus the Section President who presided over the case during the original Chamber judgment. If no request for referral is made, the Chamber’s judgment becomes final after the three-month period has passed. If the Grand Chamber accepts a request for referral, its judgment, which is made by majority vote, is final immediately. All judgments made by the ECHR are binding, and responsibility for execution of the judgments is given to the Committee of Ministers.

In addition to binding judgments, the Court also issues advisory opinions at the request of the Committee of Ministers. Advisory opinions handle legal questions regarding the interpretation of the Convention and its Protocols.

16.Permanent Court of Arbitration and ad hoc arbitrations

The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 at the first Hague Peace Conference. The PCA provides services for the arbitration and resolution of disputes involving states, state entities, intergovernmental organizations, and private parties. The PCA is different from the International Court of Justice which is housed in the same building, the Peace Palace in The Hague.

The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the pacific settlement of international disputes, which was a result of the first Hague Peace Conference. At the second Hague Peace Conference, the earlier Convention was revised by the 1907 Convention for the Pacific Settlement of International Disputes. The Conference was convened at the initiative of Czar Nicolas II of Russia "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments." The most concrete achievement of the Conference was the establishment of the PCA: the first global mechanism for the settlement of disputes between states. The 1899 Convention was revised at the second Hague Peace Conference in 1907.

The PCA is not a “court in the conventional understanding of that term, but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures, including commissions of enquiry and conciliation.”^[2] It is a permanent framework available to assist temporary arbitral tribunals or commissions. The judges or abitrators that hear cases are officially called "Members" of the Court.

The PCA is housed in the Peace Palace in The Hague, which was built specially for the Court in 1913 with an endowment from Andrew Carnegie. From 1922 on, the building also housed the distinctly separate Permanent Court of International Justice, which was replaced by the International Court of Justice in 1946.

The public at large is usually more familiar with the International Court of Justice than with the Permanent Court of Arbitration, partly because of the closed nature of cases handled by the PCA and due to the low number of cases dealt with between 1946 and 1990. The PCA's caseload has, however, increased since then.^[3]

The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, human rights, international investment (investor-state arbitrations), and matters concerning international and regional trade.

Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA website.

Cases: Hanish Islands conflict (1998 and 1999), Barbados v. Trinidad and Tobago (2006), Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia (2002) The Eritrea-Ethiopia Boundary Commission was organized through the Permanent Court of Arbitration., Mauritius v United Kingdom (pending), Philippines v. China (pending).

Ad hoc arbitration is a proceeding that is not administered by others and requires the parties to make their own arrangements for selection of arbitrators and for designation of rules, applicable law, procedures and administrative support. Provided the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an administered proceeding. The absence of administrative fees alone make this a popular choice.

Provided the parties approach the arbitration with cooperation, ad hoc proceedings have the potential to be more flexible, faster and cheaper than institutional proceedings. The absence of administrative fees alone provides an excellent incentive to use the ad hoc procedure.

The arbitration agreement, whether reached before or after a dispute has arisen, may simply state that 'disputes between parties will be arbitrated'. It is infinitely preferable at least to specify the place or 'seat' of the arbitration as well since this will have a significant impact on several vital issues such as the procedural laws governing the arbitration and the enforceability of the award. If the parties cannot agree on the detail all unresolved problems and questions relating to the implementation of the arbitration - for example, how the tribunal will be appointed or how the proceedings will be conducted – will be determined by the 'seat' or location of the arbitration. However, this approach will only work if the seat of the arbitration has an established arbitration law.

Ac hoc proceedings need not be kept entirely separate from institutional arbitration. Often, appointing a qualified arbitrator can lead to the parties agreeing to designate an institutional provider as the appointing authority. Additionally, the parties may decide to engage an institutional provider to administer the arbitration at any time.

Other options available to parties wishing to proceed ad hoc, who are not in need of rules drawn specially for them, or of formal administration and oversight, include: (i) adaption of the rules of an arbitral institution, amending provisions for selection of the arbitrator(s) and removing provisions for administration of the arbitration by the institution, (ii) incorporating statutory procedures such as the United States Federal Arbitration Act (or applicable state law) or the English Arbitration Act 1996, (iii) adopting rules crafted specifically for ad hoc arbitral proceedings such as the UNCITRAL Rules (U.N. Commission on International Trade Law) or CPR Rules (International Institute for Conflict Prevention and Resolution), which may be used in both domestic and international disputes, and (iv) adopting an ad hoc provision copied from another contract. Risks accompanying two of the available options are worthy of particular note.

Properly structured, ad hoc arbitration should be less expensive than institutional arbitration and, thus, better suit smaller claims and less affluent parties. Ad hoc arbitration places more of a burden on the arbitrator(s), and to a lesser extent upon the parties, to organize and administer the arbitration in an effective manner.  A distinct disadvantage of the ad hoc approach is that its effectiveness may be dependent upon the willingness of the parties to agree upon procedures at a time when they are already in dispute. Failure of one or both of the parties to cooperate in facilitating the arbitration can result in an undue expenditure of time in resolving the issues. The savings contemplated by use of the ad hoc arbitral process may be somewhat illusory if delays precipitated by a recalcitrant party necessitate repeated recourse to the courts in the course of the proceedings.