Lance Paul Larsen

v.

Hawaiian Kingdom

Procedural Order No. 4

1. In its Procedural Order no. 3, the Tribunal identified a number of issues which in its view are preliminary to any consideration of the merits of the dispute between the parties. The Tribunal gave the parties until 7 August 2000 "to present, jointly or separately, their views on the procedure that should now be followed".
   
   
2. On 2 August 2000 the parties entered into "Special Agreement No. 2". The central provision of that Agreement is Article I, which provides as follows:

   "Pursuant to Article 32 (1) of the UNCITRAL Rules, the Parties request the Arbitral Tribunal to issue an Interlocutory Award, on the basis of the 1843 Anglo-Franco Proclamation of 28 November 1843 and the rules and principles of international law, verifying the continued existence of Hawaiian Statehood with the Hawaiian Kingdom as its government."

3. The Tribunal set out in its Order No. 3 the questions which, in its view, are raised before it can proceed to the merits of the dispute. The issue identified in Article I of the Special Agreement No. 2 is not one of these. Rather it appears to be a reformulation of the first substantive issue identified as being in dispute.
   
   
4. It is not open to the parties by way of an amendment to the Special Agreement to seek to redefine the essential issues, so as to convert them into "interim" or "interlocutory" issues. In accordance with article 32 of the UNCITRAL Rules, and with the general principle of arbitral procedure, it is for the Tribunal to determine which issues need to be dealt with and in what order. For the reasons already given, the Tribunal cannot at this stage proceed to the merits of the dispute; these merits include the question sought to be raised as a preliminary issue by Article I. If the arbitration is to proceed it is first necessary that the preliminary issues identified in its Order No. 3 should have been dealt with.
   
   
5. If the parties are not content with the submission of the dispute to arbitration under the UNCITRAL Rules and under the auspices of the Permanent Court of Arbitration, they may no doubt, by agreement notified to the Permanent Court, terminate the arbitration. What they cannot do, in the Tribunal's view, is by agreement to change the essential basis on which the Tribunal itself is constituted, or require the Tribunal to act other than in accordance with the applicable law.
   
   
6. For these reasons the Tribunal reaffirms its Order No. 3. The issue of the continuing existence of "Hawaiian Statehood with the Hawaiian Kingdom as its government" is an issue for the merits if and to the extent that the Tribunal holds that it has jurisdiction to proceed to the merits. If the parties wish the present arbitration to go forward, they should proceed to an exchange of written pleadings on the issues referred to in Order No. 3.
   
   
7. The Tribunal accordingly gives the parties until 25 September 2000 to agree a pleading schedule for a preliminary round, as envisaged in Order No. 3. In default of such an agreement, the Tribunal will itself determine that schedule, or make such other order as may be appropriate in respect of the proceedings.

[signed on behalf of the Tribunal]
James Crawford SC
President

Christopher Greenwood QC
Member

Gavan Griffith QC
Member

5 September 2000