Considerations of Equity in the Settlement of Territorial and Boundary Disputes.

• Superior document: International Law in Japanese Perspective Series ; v.2
• Author: Miyoshi, Masahiro.
• Place / Publishing House: Boston : : BRILL,, 1993.; ©1993.
• Year of Publication: 1993
• Edition: 1st ed.
• Language: English
• Series: International Law in Japanese Perspective Series
• Physical Description: 1 online resource (299 pages)

Table of Contents

• Intro
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• Preface
• Acknowledgements
• Table of Abbreviations
• Table of Cases
• Table of Treaties
• Introduction
• Chapter I. Preliminary Considerations of the Concept of Equity
• 1. Diverse Meanings of Equity
• 2. Attempts at Clarification of the Meaning of Equity
• (1) "Equity" and "equitable principles"
• (2) "Equity" and "ex aequo et bono"
• 3. Expressions Having an Equivalent Effect to Equity
• Chapter II. Arbitration Clauses
• 1. Multilateral Arbitration Treaties
• (1) The Hague Convention for the Pacific Settlement of International Disputes
• (2) The Statute of the Permanent Court of International Justice
• (3) The General Act for the Pacific Settlement of International Disputes
• 2. Restricted Multilateral Treaties
• (1) Regional Arbitration Treaties
• a) The Convention Establishing the Central American Court of Justice to Act as a Permanent Court of Arbitration
• b) The Treaty of Conciliation and Arbitration between Estonia, Finland, Latvia and Poland
• c) Little Entente: General Act of Conciliation, Arbitration and Judicial Settlement
• d) The American Treaty on Pacific Settlement (Pact of Bogotá)
• e) The European Convention for the Peaceful Settlement of Disputes
• f) The Protocol to the Charter of the Organization of African Unity
• g) The Final Act of the Conference on Security and Co-operation in Europe
• h) The Statute of the Court of Justice of the Cartagena Agreement
• (2) Treaties of a Functional Character
• a) The Statute on Freedom of Transit
• b) The Slave Convention
• c) The Convention for the Protection of Human Rights and Fundamental Freedoms
• d) The Treaty Establishing the European Coal and Steel Community
• e) The European Fisheries Convention.
• f) The BENELUX Protocol concerning the Co-ordination of Economic and Social Policies
• g) The Treaty Instituting the BENELUX Economic Union
• h) The Act regarding Navigation and Economic Co-operation between the States of the Niger Basin
• i) The European Convention for the Protection of Animals During International Transport
• j) The International Convention on the Elimination of All Forms of Racial Discrimination
• k) The United Nations Convention on the Law of the Sea
• (3) Treaties for the Settlement of Commercial or Civil Disputes
• a) The European Convention on International Commercial Arbitration
• b) The Convention on the Settlement of Investment Disputes between States and Nationals of Other States
• c) The Convention on Settlement by Arbitration of Civil Law Disputes Resulting from Economic, Scientific and Technical Co-operation
• d) The UNCITRAL Model Law on International Commercial Arbitration
• 3. Bilateral Treaties
• (1) General Arbitration Treaties
• 1) "ex aequo et bono"
• a) "ex aequo et bono"
• b) "according to the principles of international law, or ex aequo et bono"
• c) "a tribunal having authority to decide ex aequo et bono"
• d) "a tribunal having power to decide ex aequo et bono, provided that a rule of international law cannot be applied"
• e) "ex aequo et bono if there exist no such substantive rules applicable as those of Article 38 of the Statute of the Permanent Court of International Justice"
• f) "ex aequo et bono if there are no rules of international law applicable"
• g) "If the dispute is not of a juridical nature in the opinion of the Court, the Parties agree to its being settled ex aequo et bono."
• h) "Arbitration, but the right reserved to submit the case to the Permanent Court of International Justice which decides ex aequo et bono".
• i) "non-legal disputes to be submitted to the Permanent Court of International Justice, which decides ex aequo et bono if there is no rule of law applicable"
• j) "non-legal disputes may be submitted to the International Court of Justice, which may decide ex aequo et bono if the parties so agree"
• 2) "the powers of an amiable compositeur"
• 3) "Unless the compromis imposes the application of special rules or authorizes the arbitrator to decide as an amiable compositeur, he must apply the principles of international law"
• 4) "On the basis of claims of the parties in the absence of a compromis"
• 5) "in accordance with the principles of justice and equity"
• 6) "in accordance with considerations of equity, if the parties agree"
• 7) "in accordance with the principles of law and equity"
• 8) "differences which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity"
• 9) "Permanent Court of Arbitration unless otherwise agreed"
• 10) "an arbitral tribunal in accordance with the Hague Convention for the Pacific Settlement of International Disputes"
• 11) "the Permanent Court of International Justice in accordance with its Statute or an arbitral tribunal according to the Hague Convention"
• 12) "provisions of the Hague Convention in the absence of particulars in the compromis"
• 13) "Article 38 of the Statute to be applied by the arbitral tribunal"
• 14) "equitable compensation for consequences of a domestic judicial measure"
• (2) Treaties of a Functional Character
• 1) "on the basis of respect for law"
• 2) "the powers of an amiable compositeur"
• 3) "ex aequo et bono"
• 4) "consideration of relevant circumstances"
• 5) "consideration of special circumstances"
• 6) "pursuant to equity"
• 7) "justice and equity"
• 8) "law and equity".
• 9) "equity in the absence of law"
• 10) "in an equitable manner"
• 11) "amicable settlement"
• 12) "on the basis of mutual interests"
• 13) "reference of the claim to the Permanent Court of Arbitration"
• 14) "application of the provisions of the General Act of 1928"
• 15) "arbitration based on the principle of parity"
• 16) "arbitration, rather than legal proceedings"
• 17) "rules of procedure in accordance with justice and equity"
• 18) "rules of procedure of the Hague Convention"
• 19) "rules of procedure to be decided by the tribunal"
• 20) "provisions of the European Convention on International Commercial Arbitration" 55
• 4. Special Agreements (Compromis)
• (1) Special Agreements for Arbitration of Claims Cases
• 1) "according to equity"
• 2) "upon a basis of absolute equity"
• 3) "according to justice and equity"
• 4) "carefully and impartially"
• 5) "equitable or just solution"
• 6) "amiable compositeur"
• 7) "ex aequo et bono"
• 8) "according to evidence"
• 9) "taking into account all relevant matters"
• 10) "to the best of the arbitrator's judgment and according to law"
• 11) "to the best of the arbitrator's judgment and according to justice, equity and law"
• 12) "according to justice and in compliance with the provisions of this convention"
• 13) "according to law and/or equity"
• 14) "on the basis of respect for law"
• 15) "provisions of the Hague Convention"
• 16) "rules of procedure conforming to justice and equity"
• 17) "rules of procedure of the Hague Convention"
• (2) Special Agreements for Arbitration of Territorial and Boundary Disputes
• 1) "scrupulous and impartial decision"
• 2) "exchange of territory"
• 3) "according to evidence"
• 4) "arbitrators of equity, acting ex aequo et bono"
• 5) "equitable solution"
• 6) "according to justice and equity".
• 7) "according to law and justice or equity"
• 8) "provisions of the Hague Convention"
• 9) "taking into account the relevant circumstances"
• 10) "in view of the reasons and documents produced"
• 11) "according to equitable principles"
• 5. Conclusions
• Chapter III. Arbitrations of Territorial and Boundary Disputes
• 1. Equitable Considerations in Procedural Matters
• (1) Tribunal's Liberty of Accepting and Collecting Evidence
• (2) Acceptance of Additional Documents During the Preliminary Phase
• (3) Examination of Pleas of Estoppel and the Critical Date
• (4) Taking Account of the Spirit Which Guided the Conclusion of the Treaty
• 2. Equitable Considerations in Substantive Matters
• (1) Equitable Considerations infra legem
• 1) Very careful weighing of legal bases of the claims and supporting evidence of the parties
• 2) By reason of historical right, of equity and of a geographical nature
• 3) Equitable interpretation of treaty provisions
• a) Most reconciliatory interpretation of the documents which present no desired clarity of the case
• b) Equitable interpretation of the text so as to give practically significant effect to it
• c) Considerations to give the best interpretation of the intention of the diplomatic instruments
• d) Consideration of special circumstances in the interpretation of treaty provisions
• e) Intentions of the parties ascertained from treaty provisions in the light of all the circumstances
• f) Liberal and detailed appreciation of alleged facts
• 4) Considerations concerning estoppel
• a) Estoppel or preclusion from the previous arrangement, provided it is an equitable principle
• b) Diplomatic correspondence suffices to prevent the establishment of a title to territory
• c) Absence of protest may lead to a title to sovereignty, provided a protest is reasonably expected.
• d) Silence or non-reaction not necessarily recognition of a claim to sovereignty.