CO537-3707 — Page 82

7.

If the case is to be submitted to an arbitral tribunal and not to the International Court, the composition and procedure of the tribunal becomes a matter for agreement between the parties.

This may have some advantages but it is doubtful again whether we are likely to extract a useful agreement from the Chinese. It seems probable that the composition of the International Court is as favourable as anything we are likely to get by agreement, and there is no special reason for seeking some other procedure than that of the Court. It may be thought that it would be desirable for the tribunal to contain persons of military knowledge. An arbitral tribunal set up by agreement could, of course, include such persons, but the International Court can equally provide for military assessors to sit with the court, without the right to vote. Provision for this is made by Article 30(2) of the Statute and Article 7 of the Rules of Court. Paragraph 1 of Article 7 of the Rules of Court provides that:

"The Court may, either upon its own initiative or upon the request of a party made not later than the end of the written proceedings, decide, for the purpose of a particular case, to appoint assessors to sit with it but without the power to vote"

It will be seen, therefore, that in proceedings before the International Court military assessors would have no right to vote, whereas upon an arbitration it would be possible to provide that one or more persons possessing special military knowledge should have a right to vote. In practice, the presence of military assessors is not likely to be an advantage. If there is to be a submission to arbitration, it would be best to have a reference to a single good arbitrator.

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