In Full Flower 329
which the decision will be reached. Th e parties also determine the selection
of the arbitrators, so that arbitral panels are, in a manner of speaking, the
servants of their creators rather than their masters. Several other factors
stand in the way of developing international law by way of arbitration. One
is that arbitral panels are assembled on an ad hoc basis for the resolution of
a single dispute and then disbanded. Th is precludes the building up of a
body of consistent case law. Since each panel is entirely in de pen dent of every
other, rulings by one are not binding on others. Th is makes the emergence
of inconsistent rulings possible. In addition, arbitrators are not necessarily
lawyers (and many were not, especially in the early part of the century). And
oft en the reasons given for the rulings were so sketchy as to be of little use
for the development of international law.
Th e position is somewhat diff erent for mixed- claims commissions, such
as the ones established by the Jay Treaty. In these cases, it is usual for the
commission members to be experts in the law. Also, the fact that these com-
missions handle batches of cases, instead of single disputes, means that they
can build up a corpus of case law (as the Jay Treaty commissions did). Th e
most prominent of the mixed- claims commissions— and the most famous
deployment of international law in the resolution of disputes— of the nine-
teenth century were established by the United States and Britain in the Treaty
of Washington of May 1871. Th ere were two of these. One concerned Brit-
ain’s legal responsibility (if any) arising from the fi tting out of various Con-
federate warships in British ports during the recent American Civil War. Th e
other dealt with allegations, by each country against the other, of injuries to
nationals that occurred in the course of the Civil War. Most, but not all, of
these were claims by Britain for injuries to its nationals, frequently at the
hands of American blockading squadrons.
Th e principal arbitration, on the neutrality claims, was held in Geneva in
- Unfortunately, it did not go smoothly. Th e British member was so em-
phatic in his disagreement with the panel’s fi nding on the inadequacy of
Britain’s adherence to its duties as a neutral that he refused to put his signa-
ture to the ruling. Th e British government duly paid the award (of some
$15.5 million). But it disagreed so strongly with the panel’s holding that it
withdrew its support from the plan to invite the accession of other states to the
Washington Rules, pursuant to which the arbitration had been conducted.
Th e rules, accordingly, died a quiet death.