presiding commissioner by mutual consent, or, in case of inability to agree upon such neutral member, of obtaining such a designation by the President of the Permanent Administrative Council of the Permanent Court of Arbitration at The Hague, in accordance with the provisions of the claims convention. Realizing that considerable time might be required in either process, the Department of State, at the request of the Agency, at once proposed to the Panamanian Government that the time allowed for the arbitration be extended by another convention. Such a convention, extending the duration of the Commission from April 1 to July 1, 1933, was ultimately concluded and finally became effective.

Meanwhile, the United States was actively endeavoring to obtain the agreement of the Panamanian Government to the selection of a new presiding commissioner. The two Governments were, however, unable, during the period allotted therefor by the convention, to harmonize their views with respect to a proper person to discharge the duties of that position. But shortly after the expiration of the convention period the Pan American Government joined the United States in a request for such a designation by the President of the Permanent Administrative Council of the Permanent Court of Arbitration who, fortunately, acted promptly by designating the Dutch jurist, Baron Daniel Wigbold van Heeckeren. Baron van Heeckeren was able to take up his duties in Washington on March 2, 1933. Meanwhile the 3 months of additional time provided by the extension convention had been entirely dissipated in the process of obtaining a new presiding commissioner, and therefore, when the Commission resumed its labors on March 2, 1933, it stood, in the matter of time allowed for the completion of its labors, in exactly the same position it had been in when the extension convention was first deemed necessary. It was the determination of both the Commission and the Agency of the United States, however, to complete the work of arbitration within the time allowed, if at all possible. Baron

van Heeckeren was strongly in favor of the development of all cases by oral arguments. Consequently, the cases then on the trial calendar, in which pleadings had been completed, were rapidly argued and submitted for adjudication.

The delay of the Panamanian Government in the matter of filing its reply briefs in the remaining American cases then began to retard the progress of the Commission. Only two pleadings were filed by Panama during the month of March and on April 1, although the pleadings of the United States had been so filed as to net a total of 126 days ahead of due dates, the delays on the part of Panama on the pleadings already filed and those then overdue totaled more than 50 months. This tardiness on the part of the Government of Panama continued until the Commission was finally forced to give notice that it would feel compelled to proceed to adjudications without pleadings if they were not filed within extended periods then definitely fixed.'

'The Commission's Orders Nos. 6 and 7 were as follows:

"ORDER NO. 6

46

The Commission hereby orders:

April 20, 1933.

"That oral arguments be presented to the Commission in the following cases on the second date indicated after each case and that Reply Briefs be filed on or before the first date mentioned after each case.

"If the Reply Briefs should not have been filed on the dates indicated, the Commission will reject such Reply Briefs in conformity with Article 20 of the Rules of Procedure and will proceed with the hearings of the cases on the dates fixed therefor.

1

That the Briefs of the Government of Panama in the under-mentioned cases must be filed on or before May 5, 1933, and, if they should not be so

The delays on the part of the Panamanian Government in filing its pleadings finally totaled 62 months and 11 days, whereas the pleadings of the United States were filed a net total of 10 months and 23 days ahead of time. Panama thus gained, and the United States lost, a total of 73 months and 4 days in the matter of pleading 26 cases. As a matter of fact, the Government of Panama so neglected the pleadings in its own cases in several instances that, in order to allow them to come before the Commission for adjudication during its existence, the United States was compelled to forego some of the time allowed for the filing of its reply briefs (60 days) and, in several cases, filed such pleadings, as an accommodation to the Panamanian Government, in 30 days or less. See schedule of pleadings, post, p. 854. Future claims conventions should contain provisions making a repetition of this condition impossible without proper excuse or appropriate penalties.

The last reply brief was filed by the United States on June 8, 1933, and the last oral argument was concluded on June 13 (with the exception of a supplementary oral argument on June 23 on the question of damages in the De Sabla claim which was called for by the Commission). At the final session of the Commission on June 29, the last of its decisions were rendered and the work of the Commission concluded, thus completing, by presentations and filed, the Commission will reject all such Briefs in conformity with Article 20 of the Rules of Procedure.

"That the dates for the filing of the Reply Brief by the Government of Panama and of the presentation of oral arguments in the case of Cecelia D. Baldwin, et al., Registry No. 9, be extended from April 28 and May 8, 1933, as contained in the Commission's Order No. 6 of April 20, 1933, to May 1 and May 10, 1933, respectively."

adjudications extending over a period of but 16 weeks, an arbitration which under ordinary circumstances would probably have consumed two or three times this period. Out of total appropriations of $104,000 for the purpose of this arbitration the amount of approximately $49,750 was saved and returned to the Treasury. This record for economy of time and money, it is believed, has never been approximated in any general arbitration of this kind. Awards in favor of the United States numbered 19 and totaled $114,396.25 and those in favor of Panama numbered 4 and amounted to $3,150.

THE CLAIMS CONVENTION OF 1926

ITS ADVANTAGES AND DEFECTS

Because of the custom hitherto of designating, as agents for the United States, persons from private life who, after the termination of their services, have usually returned to private life, and because it has not been the general custom of such agents to make reports of their work, preserving in definite form the benefits of their practical experience, a natural consequence has been that international arbitral conventions have been drafted and the work of the agencies has been carried out without the benefit of the practical experience gained in previous cases.

The convention under which the present arbitration was conducted, which was concluded on July 28, 1926, was modeled from the General Claims Convention between the United States and Mexico which had been concluded on September 8, 1923, but which had not then been subjected to the rigid test of extensive arbitral proceedings. It is proper and logical therefore to record, for such assistance as they may afford in future, some of the lessons learned by practical experience under the provisions of this

convention.

The paramount guide in preparing claims conventions should be, of course, a desire for absolute clarity of expression since the existence of the tribunal, the scope of its authority, the law or rules to be applied by it, and

the method of applying them are usually determined by the convention, and in the absence of clear evidence as to the intent of the contracting parties on these points the very purpose of the convention may be defeated.

Article I of the convention in this case is particularly defective in this respect. This article was primarily intended, apparently, as a jurisdictional provision, yet the entire first paragraph is composed of but two sentences, and the language is so involved as to be the source of numerous inquiries to which it, of itself, offers no clear answers.1

For example, within what period of time must a claim have arisen to be cognizable by the Commission, bearing in mind that nearly 5 years elapsed after the conclusion of the convention and before it became effective by exchange of ratifications? Was it the intention that when the Commission should come into existence it should adjudicate all claims which had arisen up until the beginning or until the end of its sessions, or only until the date of the signing of the convention, or until the date of the exchange of ratifications? Lack of clarity in this respect occasioned the necessity of two lengthy arguments before the Commission and resulted in failure to obtain an adjudication in the largest and one of the most meritorious claims of the United States, amounting to $1,500,000. It seems logical to suppose that the two Governments intended that when the Commission once came into existence (after the lapse of 30 years without any general adjudication of the claims pending between them) it should definitely dispose of all claims accumulated during the period of its existence, in order that such claims might not have to be left pending another long period of time. In the case just mentioned, however, the Commission, in the absence of clarity of expression in the convention, determined that its jurisdiction extended, in point of time, only to the date of

1See the text of art. I, post, p. 836, and the reports of the Noyes and Mariposa claims, post, pp. 155 and 533.

2 See the Decision in the claim of the Mariposa Development Company et al., post, p. 573.