An Old Story of Bias and Refusal to Comply - Chapter 51 - Reflections on International Arbitration
Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann
The notion that arbitration is a permissible way both to resolve disputes between sovereigns and to avoid wars has been accepted for many centuries, from the writings of Alberico Gentili and Hugo Grotius to the Jay Treaty and the seminal Alabama case. In the Middle Ages, it was common for popes and kings to be called to resolve disputes between other kings and their vassals, not out of political or regal authority, but as judges applying rules of law. The nature of these decisions, however, has often been fraught with difficulty. The history of the award made by Saint Louis in the dispute between the King of England and his barons illustrates the sometimes uncertain boundaries between arbitration and political bons offices. Indeed, it is an interesting example of how an award which was manifestly tainted by bias ultimately turned out to be unenforceable and worsened the opposition between the litigants.
Son of King John of England and of Isabella of Angoulême, Henry III had been crowned in 1216, at the age of 9. After assuming full authority in 1227, he engaged in long, costly and ultimately unsuccessful military operations to recover territories that had been conquered by Philip Augustus in the west of France. These military misfortunes led Henry to seek an alliance with the pope, thus committing – first to Innocent IV, and then to Alexander IV – to engage into militarily operations to oust Emperor Frederic II from Sicily. Henry, however, lacked the requisite funds to fulfill his promises, prompting a threat of excommunication that led him to seek financial assistance from his barons. The barons, led by the King’s brother-in-law Simon de Montfort – son of the leader of the fourth crusade – saw in the King’s weakness an opportunity to impose upon him what would form in 1258, as an important development of the 1215 Magna Carta, the embryo of history’s first constitutional monarchy regime: the Provisions of Oxford.