Next year marks the centenary of an event largely ignored at the time and almost forgotten about now: the Geneva Protocol on Arbitration Clauses. The Protocol, though, has a significance far beyond the shallow memories of the 21st Century. It was the first ratified international treaty on the enforcement of private arbitration agreements. It laid the foundations of what became Article II of the New York Convention and arguably much of the rest of that Treaty. It deserves to be remembered and studied.
Article 1 announced the international community’s acceptance of the idea that courts should enforce agreements to arbitrate both present and future disputes. With the consequent French amendment of the Code Civil to require the courts to enforce future dispute agreements in commercial cases, France established itself as a future intellectual leader of this subject.
The parties to a protocol agreement had to be subject to the jurisdiction of different contracting states. The subject matter could be commercial or anything else arbitrable although contracting states could limit their commitment to cases considered commercial under their national laws. England did not have a concept of a commercial contract as such in the 1920s and ended up using the concept built into Article 1 to define international arbitration between 1934 and the 1996 Arbitration Act. Even in the 1996 Act, section 85(2) follows the same approach.
One then jumps to Article 4 which requires the courts of contracting states to refer the parties to arbitration on the request of any party so long as the agreement remained valid under Article 1 except when the agreement or the arbitration could not proceed or became inoperative. The echo of this in Article II(3) of the New York Convention’s “null and void, inoperative or incapable of being performed” should be apparent.
Readers will notice that there were no formal validity requirements. Everything was left to national courts to decide whether they were faced with an arbitration agreement that they regarded as valid. Municipal tribunals found themselves able to apply either their own law, or more likely the law they considered applicable under their own private international law to determine formal questions as well as, as at present, substantive validity.
A lack of uniformity in formal validity rules may have led to the unfortunate mess created by Article II(2) of the New York Convention which probably sought to impose maximum formal validity standards that states could adopt actually led some countries to introduce formal requirements that they had never previously had or more typically were gradually going to dispense with in the years after they adopted the NYC. (Switzerland is a good example of the latter.) Strangely, if we moved back to the Protocol now, it would probably make life simpler.
The Protocol’s articles 2 and 3 have become largely lost in history. Article 2 sought to require arbitration procedure and the tribunal’s constitution to be governed by both the parties “will” and the law of the seat. It did not answer the obvious question of what happens when the two conflict. This led Article V(1)(d) of the New York Convention to answer the question the wrong way around by giving precedence to the parties agreement. That causes chaos when the law of the seat conflicts with that and is a silly idea. It also creates unnecessary discussions about the situation where a quirk of national law, such as the Dutch consolidation provisions or English rules on unilateral arbitrator appointments kick in. Article 2 of the Protocol also contains a slightly vague promise by contracting states to facilitate all necessary procedural steps that need to be taken as regards arbitrations taking place in their territory in accordance with their arbitration law.
Article 3 of the Protocol became subsumed in the 1927 Geneva Convention but contains a worthy but rather pointless commitment by contracting parties to enforce awards made in their territory in accordance with their national law in broad compliance with the other articles of in large part only applies to the enforcement awards rendered in other countries. Currently, own country enforcement is basically left to states’ own national laws.
The Protocol deserves much more publicity and discussion than it receives. The arbitration community should be celebrating it. Then again, it should have paid far more attention to it when the Protocol came into being. When will it ever learn?!
For a video on this, see https://www.youtube.com/watch?v=dNo7utsdlhw&t=1s