Download This Paper225 Years to the Jay Treaty: Interstate Arbitration Between Progress and Stagnation
3:1 Cardozo International Comparative, Policy & Ethics Law Review 1 (2020)
75 Pages Posted: 24 Apr 2019 Last revised: 29 Jan 2021
Date Written: March 26, 2019
Abstract
This article observes that 225 years have passed from the 1794 Jay Treaty between the United States and Great Britain, known among other achievements as marking the ‘modern’ era of arbitration in the resolution of interstate disputes. I argue that the perception of interstate arbitration reflected in the Jay Treaty, namely as a sui generis dispute resolution mechanism that is designed to resolve not only disputes that concern legal questions but also complex disputes involving political issues, is in line with its true nature and original purpose. In contrast, I trace the gradual judicialization of interstate arbitration over the last 225 years, which has culminated in a widely held perception of interstate arbitration and adjudication by a permanent international court as one of the same. To demonstrate the advantages of the ‘traditional’ understanding of interstate arbitration over this contemporary judicialized conception, the article presents a comparative case study analysis of four notable arbitrations concerning interstate territorial disputes. In this analysis, the article examines key legal and political aspects of these arbitrations in an attempt to illustrate how the parties’ and arbitral tribunals’ perception of the arbitral process may have affected the outcome of the case. The article then offers lessons to both state parties and arbitral tribunals regarding best practices in interstate arbitration. These include the parties appointing arbitrators familiar with the dispute who have extra-judicial expertise, and the arbitrators approaching their own role as judges-diplomats, deciding both the legal and political aspects of the dispute.
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