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International Law and the Global South
Perspectives from the Rest of the World

Leïla Choukroune Editor

Judging the State in

International Trade
and Investment Law
Sovereignty Modern,
the Law and the Economics
International Law and the Global South

Perspectives from the Rest of the World

Series editor
Associate Prof. Dr. Leïla Choukroune, Director of the Centre for Social Sciences
and Humanities (CSH - a French CNRS Research Unit), New Delhi, India;
Maastricht University Law Faculty, The Netherlands

International Editorial Board

Prof. Dr. Balveer Arora, Former rector and Pro-vice Chancellor, Jawaharlal Nehru
University, New Delhi, India
Hon. Justice Prof. Eros Roberto Grau, Former Minister, Brazilian Supreme
Court; and Emeritus Professor, Faculty of Law, University of Sao Paulo, Brazil
Associate Prof. Dr. Denise Prévost, Maastricht University Law Faculty,
The Netherlands
Prof. Dr. Carlos Miguel Herrera, Director of the Centre for Legal and Political
Philosophy, University of Cergy-Pontoise, France
Hon. Justice Robert Ribeiro, Permanent Judge, Hong Kong Court of Final
Appeal, Hong Kong, SAR China
This book series aims to promote a complex vision of contemporary legal
developments from the perspective of emerging or developing countries and/or
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but also from authors who deliberately integrate this perspective into their thinking.
The series approach is not only comparative, post-colonial or critical, but also truly
universal in the sense that it places a plurality of well-informed visions at its center.

The Series

• Provides a truly global coverage of the world in reflecting cutting-edge devel-

opments and thinking in law and international law
• Focuses on the transformations of international and comparative law with an
emphasis on international economic law (investment, trade and development)
• Welcomes contributions on comparative and/or domestic legal evolutions

More information about this series at http://www.springer.com/series/13447

Leïla Choukroune
Editor

Judging the State

in International Trade
and Investment Law
Sovereignty Modern, the Law
and the Economics

123
Editor
Leïla Choukroune
Centre for Social Sciences and Humanities
New Delhi
India

ISSN 2510-1420 ISSN 2510-1439 (electronic)

International Law and the Global South
ISBN 978-981-10-2358-3 ISBN 978-981-10-2360-6 (eBook)
DOI 10.1007/978-981-10-2360-6
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Foreword

To say that there is a tension between nation State sovereignty and the instruments
of global governance would be to state the obvious. However, in an increasingly
interdependent world, it is crucial that this tension is managed equitably, effec-
tively, and in a predictable and stable manner.
The covered agreements of the WTO and the jurisprudence that has developed
around them over the past two decades provide an excellent example of how this
tension can be managed. There are two inter-related themes in WTO law and its
jurisprudence which relate to the interface of sovereignty with global governance:
• Coherence of WTO law with other norms of international law
• Regulatory autonomy of the State to pursue legitimate non-trade concerns
The Appellate Body has emphasized both principles. On the issue of regulatory
autonomy in particular, there is already a substantial body of case law which has
emerged from the Appellate Body over this period.
A central objective of the dispute settlement system of the WTO is to provide
security and predictability to the multilateral trading system while preserving the
rights and obligations of Members, without adding to or diminishing them. The
provisions of the various WTO Agreements reflect a balance between the interests
of all WTO Members who are in various stages of development. In order to serve
these goals, an objective basis for interpretation of the provisions of the covered
agreements is necessary. This basis is provided by the customary rules of inter-
pretation of public international law, and the Appellate Body in particular, has
usually, though not exclusively, relied on the provisions of the Vienna Convention
on the Law of Treaties for the purpose.
The basic rules and principles of treaty interpretation, such as the presumption
against conflict and the necessity for effective interpretation, are expressions of the
need for coherence between various systems of international law. The Appellate
Body has relied on other rules of international law where relevant to ensure
effectiveness of the treaty regime. It has stressed that WTO law does not exist in
“clinical isolation” of other norms of international law and, therefore, WTO

v
vi Foreword

provisions should be interpreted harmoniously with other international norms. The

pursuit of coherence is intrinsic to the idea of global governance.
While the WTO agreements seek to foster orderly trade by reducing trade bar-
riers on a non-discriminatory basis, they also recognize the overlaps that exist
between trade and non-trade concerns and the rights of Members to pursue legit-
imate regulatory policies that may bring them into conflict with their commitments
under the WTO. In general, the WTO corpus of rules cannot be construed to
provide for a hierarchical relationship between trade issues and other societal
values.
In the GATT era, it was mainly the exceptions provided in GATT Article XX
which allowed Members to maintain trade restrictive measures which are
non-protectionist and materially contribute to non-trade objectives listed in
Article XX. In various decisions, the Appellate Body emphasized the need for a
balance between the market access rights of Members and their right to pursue other
legitimate societal objectives.
The WTO era has brought in a greater recognition of the need to balance trade
rules with the non-trade concerns of Members. Various covered agreements
explicitly acknowledge the non-trade concerns of Members. The preamble of the
Agreement Establishing the WTO includes the objective of sustainable develop-
ment as well as the right of members to pursue policies for economic development.
Unlike in the GATT where health measures could only be justified as exceptions,
the Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures
confers the right on Members to protect health in some instances, provided there is
a sufficient scientific basis. Similarly, the Agreement on Technical Barriers to Trade
(TBT), while imposing some disciplines, acknowledges the right of Members to
determine product characteristics and related processes and production methods
through trade restrictive technical regulations or standards as long as they are not
more trade restrictive than necessary to achieve legitimate objectives. In a number
of appeals involving TBT provisions (Clove Cigarettes, Tuna, and COOL), the
Appellate Body has clarified that Members may use such technical regulations if the
discrimination entailed stems exclusively from legitimate regulatory distinctions.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
and the subsequent decisions of WTO Members accord importance to public health
objectives. This recognition is manifested both, in the text of the Agreement, as well
as in a waiver and later an amendment adopted by Members. While the text of the
TRIPS Agreement (specifically Article 8.1), recognizes the right of Members to
adopt measures “necessary to protect public health,” the subsequent waiver and
amendment concern the rules governing compulsory licensing. Article XIV of the
General Agreement on Trade in Services (GATS) allows for general exceptions for
addressing various non-trade concerns.
One of the challenges presented by the issue of non-trade concerns is that of
hidden protectionism. How does WTO law distinguish between measures that
genuinely pursue legitimate non-trade goals, and those that simply seek to protect
domestic industry? WTO provisions and the related case law now include a series
of rules, tests, and principles to enable an objective identification of protectionism
Foreword vii

while ensuring that measures genuinely pursuing legitimate non-trade objectives are
protected.
One of the most compelling narratives of the world today is of our growing
interdependence. This requires a shared understanding of the basic values of global
governance. We can no longer afford the luxury of fragmentation of rule-making in
various areas of human endeavour. Nor can we allow tensions to persist between
sovereign responsibilities and global governance.

Ujal Singh Bhatia

Member, Appellate Body, WTO
Acknowledgements

Judging the State in International Trade and Investment Law addresses the topical
issue of why, how and what for is the State judged in international trade and
investment law. The perspective is a “State centric” one as opposed to current
developments often inspired by private arbitration practices and not well suited to
the specificities of the State and its international trade and investment activities.
This edited volume builds upon a very successful conference panel I organized
in January 2015 in the context of the Indian Society of International Law (ISIL)
world Congress on International Law. This edited book eventually brings contri-
butions from a number of leading experts in the field of international trade and
investment law and economics. These renowned academics and/or practitioners all
adopt an integrated and conceptual approach based on a very specific angle of
research (the State as a special entity in trade and investment law and economics) so
that this edited volume appears as a true research project and not a juxtaposition of
conference papers. Hence, in a logical, clear and concise manner, informed by the
latest theoretical discussions, Judging the State in International Trade and
Investment Law provides readers with: a comprehensive framework and truly
original perspective linking the many facets of the “judicial activity” on the basis of
a trade as well as a general international law approach; a focus on the emerging
world and recent case law at the international and domestic levels; an interest for the
judicial actors and procedures; a personal and so unique perspective with general
international law as a common thread.
This common project could not have been achieved without the great and
constant support of a number of institutions and individuals. I hereby would like to
express my sincere gratitude to the Indian Society of International Law for sup-
porting my initiatives for the past 10 years or so. I am especially thankful to its
Executive Council and namely its President Dr. Natchiappan, all its vice-Presidents,
and A.K. Ganguli in particular, as well as Vinai Kumar Singh. I would also like to
warmly thank all the contributors to this book who rapidly engaged in writing and
have always been responsive and truly enthusiastic. Lastly, let me conclude by
saying how much I have appreciated to work with the Springer team. Their

ix
x Acknowledgements

dedication and commitment has been instrumental in the making of this book and
the launching of my book series International Law and the Global South. I very
much thank Dr. Brigitte Reschke and Sagarika Ghosh for welcoming the idea of a
series and the subsequent books, as well as Nupoor Singh and Saloni Narang for
their inestimable and so precious editorial support.

New Delhi, India

July 2016
Contents

1 Introduction: Judging the State in International Trade

and Investment Law – Why, How and What for? . . . . . . . . . . . . . . 1
Leïla Choukroune

Part I International Trade: The WTO and Beyond

2 Judging the Judges or Judging the Members?: Pathways
and Pitfalls in the Appellate Body Appointment Process . . . . . . . . . 11
Arthur E. Appleton
3 WTO, State and Legal Capacity Building:
An Indian Narrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
James J. Nedumpara
4 States’ Regulatory Autonomy to Protect Societal Values
by Legitimate Regulatory Distinctions: Finding the Balance
in the WTO Agreement on Technical Barriers to Trade
Through Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Denise Prévost

Part II Investment Litigation at a Crossroad

5 Investor-State Arbitration Distorted: When the Claimant
Is a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Julien Chaisse and Dini Sejko
6 Claims and Counterclaims Under Asian Multilateral
Investment Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Trisha Mitra and Rahul Donde
7 Determination of Indirect Expropriation and Doctrine of Police
Power in International Investment Law: A Critical Appraisal . . . . 127
Prabhash Ranjan and Pushkar Anand

xi
xii Contents

Part III International Law’s Local Experiments and Global

Challenges
8 Role of Indian Judiciary in the Realm of International
Trade and Investment Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Amal K. Ganguli
9 Human Rights in International Investment Disputes:
Global Litigation as International Law Re-Unifier . . . . . . . . . . . . . . 179
Leïla Choukroune

Part IV Conclusion
10 Sovereignty Modern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Leïla Choukroune
Editor and Contributors

About the Editor

Prof. Leïla Choukroune is Director of the Centre for Social Sciences and
Humanities (CSH), New Delhi India, the French National Research Centre (CNRS)
Unit on South Asia. She has more than 15 years of experience in the regulation of
international economic activities in Asia and the emerging world.
When Associate Professor of international economic law with the Faculty of
Law of the University of Maastricht in the Netherlands, she was Deputy Director
of the Institute for Globalization and International Regulation (IGIR) and Director
of the Advanced Master in international economic law.
She has been frequently invited to teach and deliver guest lectures globally and
in particular recently by the World Trade Institute (Bern), the University Paris II
Panthéon-Assas, the Trade Policy Training Centre in Africa (Arusha, Tanzania), the
China-EU School of Law (Beijing), and the University of Geneva.
Her research focuses on the interactions between trade, investment and human
rights and is applied to emerging countries, China and India in particular. She has
published numerous original scientific articles in international and comparative law
and authored several books including (with Sangeeta Khorana) Global Health and
the Emerging World: An Integrated International Trade Approach, (Springer,
forthcoming 2017). She is the Editor of the Springer book series International Law
and the Global South, http://www.springer.com/series/13447 and member of the
Editorial Board of China Perspectives and Perspectives chinoises.
Professor Choukroune is regularly solicited for executive training course as well
as an expert on international economic law and business and human rights issues by
governments, international organizations and private companies. She is an inde-
pendent adviser to the International Federation for Human Rights (FIDH) and a
Member of the French National Books Commission (CNL).

xiii
xiv Editor and Contributors

Before taking the responsibility of the CSH directorship, she was Associate
Professor with the Law Faculty of Maastricht University, Assistant Professor with
HEC Paris, Consultant with the OECD, Lecturer with Paris I Panthéon-Sorbonne
and Researcher with the French Centre for Research on Contemporary China
(CEFC) in Hong Kong.
She holds a Doctorate in international law (suma cum laude—highest honor)
from the University Paris I Panthéon Sorbonne and is a qualified lawyer to the Paris
Bar. She is fluent in French, English and Spanish, speaks Mandarin and German
and learns Hindi.

About the Foreword Author

Ujal Singh Bhatia is a Member of the World Trade Organisation Appellate Body
(AB). He is currently an independent consultant and academic engaged in devel-
oping a policy framework for Indian agricultural investments overseas, while at the
same time working with the Commonwealth Secretariat on multilateral trade issues.
From 2004 to 2010, Mr. Bhatia was India’s Permanent Representative to the
WTO. During his tenure as Permanent Representative, he was an active participant
in the dispute settlement process, representing India in a number of dispute set-
tlement cases both as a complainant and respondent in disputes relating to
anti-dumping, as well as taxation and import duty issues. He also has adjudicatory
experience having served as a WTO dispute settlement panelist.
Mr. Bhatia previously served as Joint Secretary in the Indian Ministry of
Commerce, where he focused on the legal aspects of international trade. During this
period, he was also a Member of the Appellate Committee under the Foreign Trade
(Development and Regulation) Act. The Committee heard appeals of exporters and
importers against the orders of the Director General Foreign Trade. Mr. Bhatia was
also Joint Secretary of the Ministry of Information and Broadcasting and held
various positions in the public and private sectors of the Indian State of Orissa.
Mr. Bhatia’s legal and adjudicatory experience spans three decades. He has
focused on addressing domestic and international legal/jurisprudence issues,
negotiating trade agreements and policy issues at the bilateral, regional and mul-
tilateral levels, and formulating and implementing trade and development policies
for a range of agriculture, industry and service sector activities.
Mr. Bhatia is a frequent lecturer on international trade issues, and has published
numerous papers and articles in Indian and foreign journals on a wide range of trade
and economic issues.
Mr. Bhatia holds an M.A. in Economics from the University of Manchester and
from Delhi University, as well as a B.A. (Hons.) in Economics, also from Delhi
University.
Editor and Contributors xv

Contributors

Pushkar Anand is an Assistant Professor with the College of Legal Studies,

University of Petroleum and Energy Studies, Dehradun, India. He holds a B.A.LL.B.
(Hons) from Chanakya National Law University, Patna and a LL.M. from Faculty of
Legal Studies, South Asian University, New Delhi.
Arthur E. Appleton is a founding member of Appleton Luff where he advises on
trade-related, commercial and investment matters. He also serves as a senior trade
and investment consultant to the World Bank. He has assisted clients in industries
including steel, aviation services, natural gas, automobiles, agriculture and tobacco.
He has advised on projects involving the WTO, investment, FTAs, subsidies,
regulatory matters, the FCTC, INCOTERMS and other issues. Arthur has repre-
sented clients in trade-related arbitrations and has served as both a sole and
party-appointed arbitrator in ICC and ad hoc proceedings. He is on the list of
experts (chairpersons) for disputes involving trade and sustainable development for
the EU–Colombia-Peru trade agreement, and the association agreement between the
EU and Central America. He has provided consulting services to the WTO, IFC,
ITC, ADB, IDB, UNITAR, UNCTAD, COMESA and the ACP.
Dr. Appleton is also an adjunct professor at Johns Hopkins University (SAIS–
Europe) where he teaches international trade law, and a member of the visiting
faculty of two leading trade law institutes: WTI (University of Berne) on whose
board he serves, and IELPO at the University of Barcelona. He has authored and
edited two books, and more than 40 pieces on trade and arbitration.
Arthur is admitted to practice in Maryland and Washington, D. C. (USA), and is
a member of the Geneva Bar Association (OdA). He has a Ph.D. and a DES from
the Graduate Institute at the University of Geneva, a JD from the University of
Maryland, and a B.A. from College of William and Mary Williamsburg, USA. He
speaks English and French.
Prof. Julien Chaisse is an award-winning specialist in international economic law
with particular expertise in the regulation and economics of foreign investment. His
research also covers other relevant fields, such as WTO law, international taxation
and the law of natural resources. Before joining the CUHK (Chinese University of
Hong Kong) Law Faculty in 2009, Prof. Chaisse served in the Ministry of Foreign
Affairs of France, and started his academic career in Europe. Since then, Prof.
Chaisse is frequently invited as a guest lecturer to many academies and universities
around the world, including the Academy of International Investment and Trade
Law, Columbia University, Brown University and Boston University (U.S.), Passau
University (Germany) and Melbourne University (Australia) where he is a Senior
Fellow to the Law School.
Professor Chaisse has authored a broad body of well-regarded and widely-cited
articles on topics ranging from the rise of sovereign wealth funds, the regulation of
foreign investment, and decision-making challenges facing the WTO, which have
been published in the top refereed journals of international law. In recognition of his
outstanding scholarly achievements, Prof. Chaisse received the CUHK Research
xvi Editor and Contributors

Excellence Award in 2012, and was appointed Director of the Center for Financial
Regulation and Economic Development of the Faculty since 2013.
In addition to scholarly work, Prof. Chaisse has wide experience as a practi-
tioner, and is engaged as expert, counsel and arbitrator in transnational dispute
settlement. Apart from his frequently being interviewed by local and international
media on current events and legal issues, Prof. Chaisse is also regularly invited to
provide legal advice and training courses on cutting-edge issues of international
economic law for international organizations, governments, multinational law firms
and private investors, including Ernst & Young, Deloitte U.S., Maxwell Stamp, the
United Nations ESCAP and ITC, World Trade Organization, ASEAN Secretariat,
European Commission, Asian Development Bank, numbers of European countries
and ASEAN Member States.
Rahul Donde specializes in international commercial and investment arbitration.
He has acted as counsel, secretary and assistant of the arbitral tribunal in numerous
international arbitration proceedings under both ad hoc (UNCITRAL, Swiss PILA,
Indian Arbitration Act, 1996) and institutional arbitration rules (ICC, LCIA, ICSID,
CEPANI).
He has particular experience in disputes relating to utilities, natural resources
(water, oil, gas, renewable energy) and joint venture/shareholder agreements in
different jurisdictions. He is currently involved in high-profile disputes under the
NAFTA and the Energy Charter Treaty concerning renewable energy. He has
pursued specialized studies in oil and gas law, with a focus on renewable energy.
Prior to joining LKK Lévy Kaufmann-Kohler, he worked for several years at
Kanga & Co., in Mumbai, India and as a judicial clerk at the Bombay High Court.
He has acted as counsel in numerous commercial disputes before arbitral tribunals
and domestic courts, and has specialized knowledge of the idiosyncrasies of dispute
resolution in India.
Rahul has spoken at events organized by the ICC World Business Institute, the
Chartered Institute of Arbitrators, the Asian Society of International Law and
others. His publications cover topics of current interest in water, energy law and
international arbitration. He is a member of several professional arbitration asso-
ciations (YIAG, ICC YAF, CIArb YMG).
Amal K. Ganguli is a Senior Advocate, Supreme Court of India. He has inter-
national memberships with SIAC, KLRCA, UIA, Paris ILA, ITLDC, ILA-London,
IBA-London, LCIA, LAWASIA, IPBA, ASIL, SAARC—Law, WJA-Washington.
He is also associated with National Institutions like UIA-India Chapter ISIL, ILI,
ICA, ICADR, DAC, NHRC, SCBA, HCBA and many more.
Amal K. Ganguli has a large experience in arbitration followed by Constitutional
Issues, Inter State Water Disputes, Corporate Law, Public Interest Litigation (as
Amicus Curiae). He was also Senior Counsel in the panel of Government of India
Since 1984 and Indirect Taxes. He has been awarded Justice Krishna Iyer Award
sponsored by Capital Foundation Society. He was consultant at Delhi High Court
Arbitration Centre (DAC).
Editor and Contributors xvii

Trisha Mitra graduated as a lawyer in 2012 from the Symbiosis Law School,
Pune. During her years of law school she participated in various events. She was
awarded the Advocate S.K. Jain Scholarship for being the topper of B.A., LL.B.
from her batch.
Prior to pursuing her Masters in International Dispute Settlement from Graduate
Institute of International and Development Studies, she served as an associate at the
ADR teams of Bharucha and Partners and Wadia Ghandy & Co.
Soon after the completion of her masters she had the opportunity to work with
Prof. Pierre Tercier and later joined Shearman and Sterling as a legal trainee in their
International Arbitration team.
Prof. James J. Nedumpara has an experience of more than a decade and half in
the field of international trade and regulatory laws. He is currently an Associate
Professor and Assistant Dean, Projects and Institutional Development, and
Executive Director, Centre for International Trade and Economics Laws (CITEL) at
Jindal Global Law School, Sonepat, India. He has previously worked in the New
Delhi offices of Dua Associates and Luthra and Luthra Law Offices before taking up
the position of Trade Officer (Legal) with the United Nations Conference on Trade
and Development (UNCTAD), New Delhi. He has also served as a General
Manager (Trade and Legal) of a leading Fortune 500 corporation in India. Professor
Nedumpara has undertaken consultancy engagements for international organiza-
tions such as UNCTAD, law firms, think tanks and business firms on issues relating
to international trade law and, more specifically, trade remedy investigations and
free trade agreements. He has also taught specialized courses in trade law at FGV
Law School (São Paolo, Brazil), NLSIU Bangalore, ISIL, New Delhi and IIFT,
New Delhi. Professor Nedumpara’s current areas of focus include WTO law, trade
regulation and taxation law. He has co-authored two books on international trade
issues, published by Macmillan Publishers India Ltd entitled “Dealing with Trade
Distortions in Steel” (2006) and “Trade Liberalisation and Poverty in India” (2005).
He also serves in the Editorial Board of Global Trade and Customs Journal,
Kluwer Law International, Netherlands. He was recently engaged by the Central
Board of Secondary Education (CBSE) as the Convener of the Group of Legal
Studies to introduce legal studies as an optional subject in CBSE schools in India.
Professor Nedumpara received his Bachelor of Law (LL.B) Degree from Mahatma
Gandhi University, Kerala, India and holds LL.M. degrees from the University of
Cambridge, UK, the New York University School of Law, USA and the National
University of Singapore. He received his Ph.D. in Law from the National Law
School of India University, Bengaluru. He also served an internship at the Legal
Affairs Division of the World Trade Organization, Geneva. He is a recipient of the
Cambridge Commonwealth Scholarship.
Denise Prévost is Associate Professor in international economic law at Maastricht
University. She was the Academic Coordinator of the Institute for Globalisation and
International Regulation (IGIR) until 1 August 2009, when she was appointed
Deputy Academic Director of IGIR. Previously (2004–2007) she worked as
xviii Editor and Contributors

Assistant Professor in international economic law at Utrecht University, where she

coordinated and lectured courses in this field on Bachelor’s and Master’s level and
conducted research on WTO law issues. From 1998 to 2004, she worked as a
research associate in the Department of International and European Law, at
Maastricht University, where she lectured courses on the external relations of the
European Union, legal English and international trade law, and conducted research
towards her Ph.D. Her doctoral thesis is entitled: Balancing Trade and Health in the
SPS Agreement: The Development Dimension (2009, Wolf Legal Publishers).
In 2001, Denise interned at the Legal Affairs Division of the Secretariat of the
World Trade Organization. She has also done consulting work for various inter-
national organisations, the European Commission, national bodies and industry
groups. Further, she is a member of the international faculty of the Trade Policy
Training Centre in Africa at the Eastern and Southern African Management
Institute, Arusha, Tanzania as well as of the China Europe School of Law in
Beijing, China.
Denise studied law at the University of Pretoria, South Africa (BLC cum laude
1992, LL.B cum laude, 1994). She worked as a researcher at the University of
South Africa (1995–1996) where she also obtained an LL.M. with a focus on
international economic law. She was admitted as an advocate of the High Court of
South Africa in December 1996. Subsequently, she followed the Magister Iuris
Communis programme at Maastricht University (LL.M. summa cum laude, 1998).
Prabhash Ranjan is Assistant Professor of law at the Faculty of Legal Studies
(FLS) of the New Delhi based South Asian University.
He was awarded Ph.D. by King’s College London in 2012 where he studied on a
King’s College London School of Law Doctoral Scholarship. He studied at School
of Oriental and African Studies (SOAS) and University College London (UCL) for
LL.M., as a British Chevening scholar. Prabhash also holds degrees in Economics
and Law from University of Delhi.
Prabhash has been an Associate Professor at National Law University, Jodhpur;
Assistant Professor at National University of Juridical Sciences (NUJS), Kolkata;
Visiting Scholar at University of Sydney; Young Asian Scholar at National
University of Singapore (NUS); Guest Tutor and Lecturer at King’s College
London; Research Assistant at University College London; Research Consultant to
United Nations Development Programme (UNDP); Visiting Faculty at Indian Law
Institute, Indian Institute of Foreign Trade and TERI University; and Consultant to
Oxfam Great Britain in India. He has also advised the Indian government on
bilateral investment treaty negotiations.
He teaches and publishes in the area of international investment law and world
trade law. Professor Ranjan has published in leading international refereed journals.
Dini Sejko is a Ph.D. candidate at the Faculty of Law at The Chinese University of
Hong Kong. He has a strong multicultural background having studied or worked in
Albania, Italy, Tunisia, the United Kingdom, Switzerland and China before joining
the Ph.D. programme. Dini is an active member of the Hong Kong legal research
Editor and Contributors xix

community. He has participated in various domestic and international conferences

and seminars. Together with Prof. Gregory Gordon and fellow student Damian
Bethke, he helped establish in 2015 the Hong Kong Law Research Postgraduate
Symposium which provides an annual forum for Hong Kong young law researchers
to present their work and make and renew acquaintances as well as contribute
toward a more collegial and intellectually vibrant law research environment in
Hong Kong.
Chapter 1
Introduction
Judging the State in International Trade and
Investment Law – Why, How and What for?

Leïla Choukroune

Abstract Why, how and what for are States sued for breaches of their International
trade and investment law obligations? At a time when multilateralism is deeply
questioned by the forces of mega-regionalism as well as political and economic
contestation, these essential interrogations have never been more pressing. Whether
by a permanent court or an ad hoc body, the questioning of judging the State for
breaches of its treaty obligations however remains at the core of today’s interro-
gations on the adequacy and legitimacy of trade and Investor States Dispute
Settlement System. While rich and diverse in the way it addresses some funda-
mental issues in international trade and investment dispute settlement, our book
does not claim to be exhaustive. Its analysis is voluntarily limited to trade and
investment disputes settled at the international level by the World Trade
Organisation (WTO) dispute settlement mechanism and international investor
States disputes systems. But in this relatively restricted context, Judging the State in
International Trade and Investment Law takes into account the latest evolutions of
a globalized trade and investment regulation struggling to put people’s expectations
at its core, and provides a comprehensive framework and truly original perspective
linking the various facets of “judicial activity” to the specific yet encompassing
character of international law and the rule of law in international society.

Why, how and what for are States sued for breaches of their international legal trade
and investment obligations? At a time when multilateralism is deeply questioned by
the forces of mega-regionalism as well as political and economic contestation, these
essential interrogations have never been more pressing. With 3304 International
Investment Agreements (IIAs) and almost 600 Free Trade Agreements (FTAs), the
Universe of global economic regulation has indeed reached unknown spheres of
complexities, which are likely to expand further with the negotiation, by 150

L. Choukroune (&)
Centre for Social Sciences and Humanities (CSH), New Delhi, India
e-mail: Leila.choukroune@csh-delhi.com; Leila.choukroune@maastrichtuniversity.nl

© Springer Nature Singapore Pte Ltd. 2016 1

L. Choukroune (ed.), Judging the State in International Trade
and Investment Law, International Law and the Global South,
DOI 10.1007/978-981-10-2360-6_1
2 L. Choukroune

countries, of at least 57 new IIAs.1 These local responses to the limited achieve-
ments, if not “failure”, of the Doha round of trade negotiations initiated by the
World Trade Organization (WTO), at its fourth Ministerial conference in November
2001, takes the form of a myriad of mega-regional trade and investment agreements
of an unprecedented political, economic and societal magnitude. As in the
“scrubbed” EU–Canada Comprehensive Economic and Trade Agreement (CETA),
or the recently concluded Trans-Pacific Partnership (TPP), other mega deals from
the Transatlantic Trade and Investment Partnership (TTIP), to the Regional
Comprehensive Economic Partnership (RCEP), aim to cover an immense landscape
of norms, of which implications in terms of rights protection, creation or diminution
have yet to be measured.2 International trade and investment regulation is indeed
constantly evolving from a conceptual framework to another one hence adjusting
the processes of economic liberalization to the political conceptions and societal
aspirations of a given period of time. But as shown in international dispute set-
tlement, the time of legislation might not always meet public demands and the need
for the State to exercise its sovereignty to not only promote and protect economic
growth, but also essential public policies as many guaranties of its autonomy to
legislate in favour of its own population’s rights enforcement and fostering. In this
regard, the past 10 to 20 years of international trade and investment adjudication
have proven rather controversial. With 70 new cases initiated in 2015, treaty-based
investor–State arbitration reached a new annual summit with a total number of
known Investor State Dispute Settlement (ISDS) cases amounting to 696.3
Interestingly, developing countries are not the only ones to be targeted anymore as
40 % of the 2015 new cases were brought against developed economies such as
Spain (with 15 new cases for a total of 29) or the Czech Republic (with 3 new cases
for a total of 33).4 The latest decisions have also shown that the State often prevails
on the contrary to largely disseminated ideas according to which States systemat-
ically loose ISDS cases. However, previous disputes had made the legal headlines
and triggered profound questionings if not complete distrust towards the system.
Since the late 2000s indeed, with many Latin American cases directly challenging
public policies (59 cases against Argentina, 36 against Venezuela or 22 against
Ecuador), concerns with ISDS developed on the basis of a number of clearly
identified issues: a systemic unbalance favouring investor claimants while dis-
couraging States claims, a democratic deficit coupled with a deficit of legitimacy in
relation to the questionable professionalism, independence and impartiality of
arbitrators and the lack of transparency in the proceedings and publications of
decisions; a deficit of coherence and consistency in the arbitral awards; third-party
opaque funding practices; the ever increasing cost of international arbitration, and

1
See, UNCTAD World Investment Report 2016.
2
The (scrubbing) as presented by the EU and Canada refers to a de facto renegotiation of the first
treaty text produced in 2014. See, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1468.
3
See, UNCTAD World Investment Report 2016. Calculations are based on the 1987–2015 period.
4
Ibid, 105.
1 Introduction 3

finally, the absence of an appeal mechanism.5 To a lesser extent, similar remarks

could be formulated in a trade context, with the introduction of a series of new cases
(US–Clove Cigarettes, Australia–Plain Packaging, EU–Seal, to name only a few)
directly questioning “States autonomy to regulate” for public purpose.6 As a result,
a number of countries such as Ecuador, Bolivia or Venezuela have denounced the
International Convention for the Settlement of Investment Disputes (ICSID) and
some of their Bilateral Investment Treaties (BITs), as exemplified by Ecuador’s
March 2013 decision to terminate its BIT with the USA, a few months after the
record USD 2.3 billion award against Quito in the Occidental Petroleum
Corporation v Ecuador case.7,8 Another revealing example was provided, in early
2013, by India when it suspended all its BITs negotiations to eventually publicly
release a first new BIT model draft, which has largely been commented since the
beginning of 2015 and now starts to serve as a basis for new negotiations.9 This
reaction did not come as a complete surprise as India is facing, for the past 5 years
or so, a growing number of investors’ claims (around 17).10,11 Some of these
disputes, and the landmark decision on the White Industries case to start with, have

5
See, for quite critical study, P Eberhardt & C Olivet, Profiting from Injustice, How Law Firms,
Arbitrators and Financiers Are Fuelling and Investment Arbitration Boom, Corporate Europe
Observatory and the Transnational Institute, November 2012.
6
See, DS406, United States – Measures Affecting the Production and Sale of Clove Cigarettes;
DS434, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging
Requirements Applicable to Tobacco Products and Packaging and DS400, DS401: European
Communities – Measures Prohibiting the Importation and Marketing of Seal Products, in which
the Appellate Body upheld the Panel's finding that the EU Seal Regime is “necessary to protect
public morals” within the meaning of Article XX(a) of the GATT 1994 while concluding that the
European Union had not justified the EU Seal Regime under Article XX of the GATT 1994.
7
Convention on the Settlement of Investment Disputes between States and Nationals of Other
States (the ICSID Convention or the Convention) entered into force on 14 October 1966.
8
Ecuador in Occidental Petroleum Corporation v Ecuador, ICSID Case No ARB/06/11 award 5
October 2012. It has been reported that this is the largest sum ever awarded by a tribunal under the
ICSID Convention and, unsurprisingly, has been challenged by Ecuador. This controversial dis-
pute arose out of Ecuador’s April 2006 decision to terminate, by way of a decree the Participation
Contract under which Occidental Petroleum Corporation (Occidental) and Occidental Exploration
and Production Company (OPEC, the Claimants, were exploiting oil in the Oriente Basin in the
Ecuadorian Rainforest (the same region where the Chevron- Texaco case took place). While the
three arbitrators of the tribunal were unanimous on the liability of Ecuador (breach of the contract
and violation of the US-BIT in acting disproportionate manner), Professor Brigitte Stern firmly and
brilliantly dissented upon the calculation of damages. She indeed argues that the Claimant himself
contributed to the damage causing the contract termination by Ecuador.
9
See, https://mygov.in/group-issue/draft-indian-model-bilateral-investment-treaty-text/.
10
See, The Hindu available at: http://www.thehindu.com/news/national/indiaus-investment-
protection-pact-in-the-offing/article7444730.ece?homepage=true.
11
Some of these cases are identifiable on the Investment Treaty Arbitration website available at:
http://www.italaw.com.
4 L. Choukroune

literally produced a landslide of comments and interrogations on the direction to be

given to India’s investment policy with regard to some essential aspects of its
autonomy to regulate economic activities including its tax policy.12 In addition,
according to the United Nations Conference on Trade and Development
(UNCTAD) estimates, about 100 countries have reviewed their IIAs networks and
about 60 have used the organization’s policy instruments to amend their treaty
provisions.13 This tumultuous context led the EU and Canada to reconsider their
international investment dispute settlement mechanisms and propose, in their new
CETA text, an interesting institutionalized system which includes the possibility to
appeal decisions and may serve as the basis for the creation of a permanent
investment court.
Whether by a permanent court or an ad hoc body, the question of judging the
State for breaches of its treaty obligations however remains at the core of today’s
interrogations on the adequacy and legitimacy of trade and investment dispute
settlement systems. So that, again one needs to reflect upon the three fundamental
interrogations previously raised above: why, how and what for are States sued in
international trade and investment law?

1.1 Why?—Justiciability Questioned

The question of justiciability has always been at the centre of international law and
the rule of law in international society.14 In 1933 already, in his seminal book, The
Function of Law in the International Community, Hersch Lauterpacht, addressed
the problem of the judicial function in in a strikingly acute manner.15 At that time
indeed, it had been conventionally accepted that arbitration or judicial settlement
were unsuitable for dealing with disputes over “vital interests and honour”, and
many arbitration treaties contained a specific reservation to that effect.16 This “vital
interest and honour” formula is not without resonance today when, for example,
applied to investment water and sanitation cases challenging human rights or recent
States claims to consolidate their economic sovereignty over natural resources as in

12
We will further develop the White Industries case’s impact on the Most Favoured Nation
(MFN) standard of treatment below. The White Industries case Final Award is available at: http://
www.italaw.com/sites/default/files/case-documents/ita0906.pdf.
13
See, UNCTAD World Investment Report 2016.
14
See, Mary Ellen O’Connelll & Lenore Vanderzee, The History of International Adjudication, in,
Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The Oxford Handbook of International
Adjudication, Oxford (OUP), December 2013, 40–62.
15
See, Sir Hersch Lauterpacht, The Function of Law in International Community Oxford (OUP,
2012) 477.
16
See, ibid, The Doctrine of Limitations of the Judicial Process in International Law, 1–25.
1 Introduction 5

the WTO China Raw Materials and Rare Earth disputes.17,18 So that a sort of test
of justiciability had to be performed based on a number of criteria including the
nature and importance of a dispute and resting largely on the function assigned to
international law that is whether you hold it in high value or not. In this matter,
Hersch Lauterpacht had imagined four “clear—although not mutually exclusive—
conceptions of legal or judicial disputes”: the possibility to apply “existing” and
“ascertainable” rules of international law (a); the identification of questions, which
do not affect “vital interests of States, or their external independence, or internal
sovereignty or territorial integrity, or honour, or any other of the important interests
covered by the restrictive clauses” (b); the existence of disputes for which the
application of “existing rules of international law is sufficient to ensure a result
which is not incompatible with the demands of justice and with a progressive
development of international relations” (c); the presence of disputes for which the
“controversy concerns a claim of legal right as distinguished from a claim admit-
tedly aiming at a change of the existing law”.19 The world has dramatically evolved
since the 1930s post-Weimar Constitution debates: actors have multiplied and
States successively lost and regained presence in economic affairs through the
adoption of liberal economic policies and, later, the emergence of new State cap-
italists in the former socialist countries converted to market economy, but per-
forming Lauterpacht test of justiciability still enables the State, as well as the
individual, to address the proper role of law in the international community and,
eventually, the relationships between law and politics as expressed in the concept of
State sovereignty. Is it then that some disputes are not justiciable as a consequence
of this doctrine of sovereignty? For Lauterpacht, the response was negative as long
as the rule of law was respected and the applicable rules enforced so that there were
no issues of a greater importance than others and the judges and arbitrators did not
lack means to apply the law in innovative ways, and to set aside rules that appear to
be obsolete or unjust. The resonance with today’s trade and investments dilemma is
once again striking: are Bilateral Investment Treaties (BITs) negotiated in the lib-
eral 1990s well suited to today’s societal need and expectations? Is the WTO
compulsory jurisdiction really “providing security and predictability to the multi-
lateral trading system” as stated in the Dispute Settlement Understanding
(DSU) Article 3.2 while preserving “the rights and obligations of Members under
the covered agreements, and to clarify the existing provisions of those agreements
in accordance with customary rules of interpretation of public international law”
without diminishing “the rights and obligations provided in the covered agree-
ments”? Are trade and investment adjudicatory body decisions coherent and con-
sistent hence participating to global legal certainty and economic security? To what

17
See, Leïla Choukroune, Human Rights in International Investment Disputes: Global Litigation
as International Law Re-unifier (Chap. 9) (Springer 2016).
18
See, DS394/DS395/DS398: China – Measures related to the exportation of various raw materials
and DS431/DS432/DS433: China – Measures related to the exportation of rare earths, tungsten,
and molybdenum.
19
Ibid, 19.
6 L. Choukroune

extent are trade and investment disputes settled in accordance with general inter-
national law norms and principles beyond the now traditional yet rhetorical invo-
cation of the Article 32 of the Vienna Convention on the Law of Treaties (VCLT)?
All these questions inform the reasoning of the book’s contributors to understand
Why States are sued in international trade and investment law and why the existing
systems have not always been understood as offering a greater range of flexibilities.
In their chapter dedicated to “claims and counterclaims under Asian multilateral
investment treaties”, Trisha Mitra and Rahul Donde not only consider who can
bring claims and counterclaims, but also what the subject matter of these claims
must be. In doing so, they tackle a number of preconceptions and show that nothing
virtually restricts States from raising claims and/or counterclaims in investment
arbitration while certain treaties such as the Article 17(1)(2)(a) of the Organization
of the Islamic Conference (OIC) Agreement provide an equal right to a Member
State to make a claim. Julien Chaisse and Dini Sejko equally stress unexpected
flexibilities in the current dispute systems in analysing how State capitalism is
reshaping international economic law through the precise case of States claimants in
international investment disputes. Hence, they unveil a “great paradox”, that of
regime designed to serve the interests of the private sector and which is now
protecting the State as a new versatile global economic actor.

1.2 How?—Methods and Actors

How could such a transformation—and many other more controversial—take

place? What are the methods and actors at the core of the trade and investment
dispute resolution systems? “Who judges?” Quis judicabit? as Lauterparcht could
have put it, then becomes the key question. Is the lawyer—as judge and arbitrator—
the foundation of the rule of law? What are international judges for and what sort of
function do they perform in the international trade and investment arena?20 In the
absence of clear just and accurate rules as a practical basis, the adjudicators have
often been seen as the last resort to equity and the rule of law in international affairs.
In performing much more than judging and so engaging in law making and gov-
ernance, the same judges have been denounced as exceeding their powers and too
zealously embarking in judicial activism. Isn’t the task a Herculean and debatable
one indeed as it would equal to the impossible and contestable mission described by
Martti Koskenniemi as a “civilizing” one.21
On the methods first, Prabhash Ranjan and Pushkar Anand, in their chapter on
the “determination of indirect expropriation and doctrine of police power in

20
On the role of judges, see, José Alvarez, What Are International Judges for? The Main Functions
of the International Adjudication, in, Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The
Oxford Handbook of International Adjudication, Oxford (OUP), December 2013 158–178.
21
See, Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law (1870–1960) Cambridge, Cambridge University Press (CUP, 2001) 584.
1 Introduction 7

international investment law”, critically examine the role of the police power
doctrine in judging a claim of indirect expropriation against the host State. This is
certainly an important question as it helps to understand whether this doctrine could
serve as a benchmark to judge a host State’s regulatory measures, but also what are
the influences either comparative (American) or international (customary law)
under which States are judged. On the actors then, James J. Nedumpara examines
the background and the key WTO disputes which triggered a policy shift in India
towards the State playing a more proactive role in encouraging the building of a
unique hybrid trade-related legal capacity. In doing so, he shows how the building
of a national capacity upheld a particular development paradigm, of which objec-
tives were to ensure not only market access for products that can affect the
livelihood of the maximum number of people, but also safeguard the benefits of the
most vulnerable and so protect States and people’s interests. The same objective
seems to transpire in the Indian judiciary effort to implement international com-
mitments. India appears as a good student of international trade for A.K. Ganguli
whose chapter on the “role of Indian judiciary in the realm of international trade and
investment law” stresses that the “judiciary has not only shown deference to India’s
international commitments” but “has gone a step further in giving effect to several
international treaties and covenants through its pronouncements, even though in
respect of many international treaties India has not been a signatory and, in some
cases, the treaties had not been backed by legislations.” However, judges are not
often that internationally minded or daring and, as demonstrated by Arthur E.
Appleton, in an era of court “proliferation” the processes of appointment of the
WTO Appellate Body Members (AB) can go through many pathways and pitfalls.
In view of the current WTO AB crisis, the need to critically examine an eminently
political process is nothing but evident if indeed the WTO wants to fulfil its mission
to provide security and predictability for the multilateral trading system.22

1.3 What for? Beyond the Right to Regulate

While policy options for liberalization and regulation have fundamentally evolved
over the years, the question of the ultimate objectives pursued in judging the State
are of crucial importance. Beyond the tension between States responsibility for
breaches of international obligations and the preservation of the States right to
regulate autonomously, remains the question of a paradigm shift to which adjudi-
cation could contribute.
In her chapter on the Sates’ regulatory autonomy to protect societal values
through legitimate regulatory distinction in the WTO Agreement on Technical

22
On proliferation, see, Pierre-Marie Dupuy & Jorge E Vinalaes, The Challenge of Proliferation:
An Anatomy of the Debate, in, Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The Oxford
Handbook of International Adjudication, Oxford (OUP), December 2013 135–157.
8 L. Choukroune

Barriers to Trade (TBT), Denise Prévost underlines the crucial role of adjudication
in achieving an appropriate balance between the sovereign autonomy of States to
regulate in order to protect important societal values on the one hand and trade
liberalization on the other. In stressing the dangers of case law-driven solutions to
legal problems, she also offers some suggestions for more sustainable interpretation.
In the same vein, and in calling for more consistency in the international adjudi-
catory systems, the contribution on “global litigation as international law re-unifier”
demonstrates that the apparent contradiction between trade and investment norms
and human rights could be easily resolved if a political and economic will to read
the law from a holistic perspective making use of its many flexibilities eventually
manifested itself. It then argues in favour of an alternative (human) rights-based
perspective to not only provide victims with essential remedies, but also participate
in international law reunification.
While rich and diverse in the way it addresses some fundamental issues in
international trade and investment dispute settlement, our book does not claim to be
exhaustive. Its analysis is voluntarily limited to trade and investment disputes
settled at the international level by the World Trade Organisation dispute settlement
mechanism and international investor States disputes systems. But in this relatively
restricted context, Judging the State in International Trade and Investment Law
takes into account the latest evolutions of a globalized trade and investment reg-
ulation struggling to put people’s expectations at its core, and provides a com-
prehensive framework and truly original perspective linking the various facets of
“judicial activity” to the specific yet encompassing character of international law
and the rule of law in international society.
 Part I
International Trade:
The WTO and Beyond
Chapter 2
Judging the Judges or Judging
the Members?
Pathways and Pitfalls in the Appellate Body
Appointment Process

Arthur E. Appleton

Abstract The politicization of the WTO Appellate Body selection process is

undermining the Appellate Body’s legitimacy. Quasi-permanent seats, growing
obstacles in the appointment and reappointment process, and the growing tendency
of Members to appoint political as opposed to legal experts, are damaging the
Appellate Body as an institution. Instead of choosing Appellate Body Members
with strong legal backgrounds, Members are demonstrating a preference for judges
with government experience, in particular ex-ambassadors. This development may
erode respect for Appellate Body decisions. As Montesquieu noted, “there is no
liberty, if the power of judging be not separated from the legislative and executive
powers.” Members would be wise to remember this as they ponder Appellate Body
appointments and reappointments.

Arthur E. Appleton, JD, PhD, adjunct professor, Johns Hopkins School of Advanced
International Studies (SAIS Europe).
The author is also a visiting faculty member at the University of Barcelona (IELPO), a faculty
and board member of WTI (University of Bern), and a partner with Appleton Luff International
Lawyers (Geneva). The author would like to thank the Editor, Dr Leïla Choukroune, for her very
useful comments. He would also like to thank those who commented on earlier drafts and prefer
to remain anonymous. The author states that all remaining errors are his own.

A.E. Appleton (&)

Appleton Luff, Geneva, Singapore
e-mail: appleton@appletonluff.com

© Springer Nature Singapore Pte Ltd. 2016 11

L. Choukroune (ed.), Judging the State in International Trade
and Investment Law, International Law and the Global South,
DOI 10.1007/978-981-10-2360-6_2
Another random document with
no related content on Scribd:
"Until international co-operation among leading nations for
the coinage of silver can be secured, we favor the rigid
maintenance of the existing gold standard as essential to the
preservation of our national credit, the redemption of our
public pledges, and the keeping inviolate of our country's
honor. We insist that all our paper currency shall be kept at
a parity with gold. The democratic party is the party of hard
money, and is opposed to legal-tender paper money as a part of
our permanent financial system; and we therefore favor the
gradual retirement and cancellation of all United States notes
and treasury notes, under such legislative provisions as will
prevent undue contraction. We demand that the national credit
shall be resolutely maintained at all times and under all
circumstances. "

This resolution was rejected by 626 votes against 303. Another

resolution from the same source, commending "the honesty,
economy, courage and fidelity" of the "democratic national
administration" of President Cleveland, was voted down by 564
to 357. Resolutions to protect existing contracts against a
change of monetary standard, and to provide for a suspension
of silver free coinage, at the ratio of 16 to 1, after trial
for one year, if it failed to maintain parity between silver
and gold, were similarly voted down. The declarations then
adopted, for the "platform" of the party, were as follows:

"We, the Democrats of the United States, in National

Convention assembled, do reaffirm our allegiance to those
great essential principles of justice and liberty upon which
our institutions are founded, and which the Democratic party
has advocated from Jefferson's time to our own—freedom of
speech, freedom of the press, freedom of conscience, the
preservation of personal rights, the equality of all citizens
before the law, and the faithful observance of constitutional
limitations.
"During all these years the Democratic party has resisted the
tendency of selfish interests to the centralization of
governmental power, and steadfastly maintained the integrity
of the dual scheme of government established by the founders
of this Republic of republics. Under its guidance and
teachings the great principle of local self-government has
found its best expression in the maintenance of the rights of
the States and in its assertion of the necessity of confining
the General Government to the exercise of the powers granted
by the Constitution of the United States.

"Recognizing that the money question is paramount to all

others at this time, we invite attention to the fact that the
Federal Constitution names silver and gold together as the
money metals of the United States, and that the first coinage
law passed by Congress under the Constitution made the silver
dollar the monetary unit, and admitted gold to free coinage at
a ratio based upon the silver-dollar unit.

"We declare that the act of 1873 demonetizing silver without

the knowledge or approval of the American people has resulted
in the appreciation of gold and a corresponding fall in the
prices of commodities produced by the people; a heavy increase
in the burden of taxation and of all debts, public and
private; the enrichment of the money-lending class at home and
abroad; prostration of industry and impoverishment of the
people.

"We are unalterably opposed to gold monometallism, which has

locked fast the prosperity of an industrial people in the
paralysis of hard times. Gold monometallism is a British
policy, and its adoption has brought other nations into
financial servitude to London. It is not only un-American but
anti-American, and it can be fastened on the United States
only by the stifling of that spirit and love of liberty which
proclaimed our political independence in 1776 and won it in
the war of the Revolution.
 "We demand the free and unlimited coinage of both gold and
silver at the present legal ratio of sixteen to one, without
waiting for the aid or consent of any other nation. We demand
that the standard silver dollar shall be a full legal tender,
equally with gold, for all debts, public and private, and we
favor such legislation as will prevent for the future the
demonetization of any kind of legal-tender money by private
contract.

"We are opposed to the policy and practice of surrendering to

the holders of the obligations of the United States the option
reserved by law to the Government of redeeming such
obligations in either silver coin or gold coin.

"We are opposed to the issuing of interest-bearing bonds of

the United States in time of peace, and condemn the
trafficking with banking syndicates which, in exchange for
bonds and at an enormous profit to themselves, supply the
Federal Treasury with gold to maintain the policy of gold
monometallism.

{567}

"Congress alone has the power to coin and issue money, and
President Jackson declared that this power could not be
delegated to corporations or individuals. We therefore demand
that the power to issue notes to circulate as money be taken
from the National banks, and that all paper money shall be
issued directly by the Treasury Department, be redeemable in
coin, and receivable for all debts, public and private.

"We hold that the tariff duties should be levied for purposes
of revenue, such duties to be so adjusted as to operate
equally throughout the country and not discriminate between
class or section, and that taxation should be limited by the
needs of the Government honestly and economically
administered.

"We denounce, as disturbing to business, the Republican threat

to restore the:McKinley law, which has been twice condemned by
the people in national elections, and which, enacted under the
false plea of protection to home industry, proved a prolific
breeder of trusts and monopolies, enriched the few at the
expense of the many, restricted trade, and deprived the
producers of the great American staples of access to their
natural markets. Until the money question is settled we are
opposed to any agitation for further changes in our tariff
laws, except such as are necessary to make the deficit in
revenue caused by the adverse decision of the Supreme Court on
the income tax.

"There would be no deficit in the revenue but for the

annulment by the Supreme Court of a law passed by a Democratic
Congress in strict pursuance of the uniform decisions of that
court for nearly 100 years, that court having sustained
constitutional objections to its enactment which had been
overruled by the ablest judges who have ever sat on that
bench. We declare that it is the duty of Congress to use all
the constitutional power which remains after that decision, or
which may come by its reversal by the court, as it may
hereafter be constituted, so that the burdens of taxation may
be equally and impartially laid, to the end that wealth may
bear its due proportion of the expenses of the Government.

"We hold that the most efficient way to protect American labor
is to prevent the importation of foreign pauper labor to
compete with it in the home market, and that the value of the
home market to our American farmers and artisans is greatly
reduced by a vicious monetary system, which depresses the
prices of their products below the cost of production, and
thus deprives them of the means of purchasing the products of
our home manufacture.
"We denounce the profligate waste of the money wrung from the
people by oppressive taxation and the lavish appropriations of
recent Republican Congresses, which have kept taxes high,
while the labor that pays them is unemployed, and the products
of the people's toil are depressed in price till they no
longer repay the cost of production. We demand a return to
that simplicity and economy which best befit a Democratic
Government and a reduction in the number of useless offices,
the salaries of which drain the substance of the people.

"We denounce arbitrary interference by Federal authorities in

local affairs as a violation of the Constitution of the United
States and a crime against free institutions, and we
especially object to government by injunction as a new and
highly dangerous form of oppression, by which Federal judges,
in contempt of the laws of the States and rights of citizens,
become at once legislators, judges, and executioners, and we
approve the bill passed at the last session of the United
States Senate, and now pending in the House, relative to
contempts in Federal courts, and providing for trials by jury
in certain cases of contempt.

"No discrimination should be indulged by the Government of the

United States in favor of any of its debtors. We approve of
the refusal of the Fifty-third Congress to pass the Pacific
Railroad funding bill, and denounce the effort of the present
Republican Congress to enact a similar measure.

"Recognizing the just claims of deserving Union soldiers, we

heartily endorse the rule of the present Commissioner of
Pensions that no names shall be arbitrarily dropped from the
pension roll, and the fact of an enlistment and service should
be deemed conclusive evidence against disease or disability
before enlistment.

"We extend our sympathy to the people of Cuba in their heroic

struggle for liberty and independence.
"We are opposed to life tenure in the public service. We favor
appointments based upon merit, fixed terms of office, and such
an administration of the civil-service laws as will afford
equal opportunities to all citizens of ascertained fitness.

"We declare it to be the unwritten law of this Republic,

established by custom and usage of 100 years, and sanctioned
by the examples of the greatest and wisest of those who
founded and have maintained our Government, that no man should
be eligible for a third term of the Presidential office.

"The absorption of wealth by the few, the consolidation of our

leading railroad systems, and formation of trusts and pools
require a stricter control by the Federal Government of those
arteries of commerce. ''We demand the enlargement of the
powers of the Inter-state Commerce Commission, and such
restrictions and guarantees in the control of railroads as
will protect the people from robbery and oppression.

"We favor the admission of the Territories of New Mexico and

Arizona into the Union as States, and we favor the early
admission of all the Territories giving the necessary
population and resources to entitle them to Statehood; and
while they remain Territories we hold that the officials
appointed to administer the government of any Territory,
together with the District of Columbia and Alaska, should be
bona fide residents of the Territory or District in which
their duties are to be performed. The Democratic party
believes in home rule, and that all public lands of the United
States should be appropriated to the establishment of free
homes for American citizens.

"We recommend that the Territory of Alaska be granted a

Delegate in Congress, and that the general land and timber
laws of the United States be extended to said Territory.
 "The Federal Government should care for and improve the
Mississippi River and other great waterways of the Republic so
as to secure for the interior people easy and cheap
transportation to tidewater. When any waterway of the Republic
is of sufficient importance to demand aid of the Government,
such aid should be extended upon a definite plan of continuous
work until permanent improvement is secured.

{568}

"Confiding in the justice of our cause and the necessity of

its success at the polls, we submit the foregoing declaration
of principles and purposes to the considerate judgment of the
American people. We invite the support of all citizens who
approve them, and who desire to have them made effective
through legislation for the relief of the people and the
restoration of the country's prosperity."

In the course of the debate upon the silver question, a speech

of impassioned eloquence was made by William J. Bryan, of
Nebraska, who had represented his district in Congress for two
terms, 1891-1894, and who was rising to prominence among the
leaders of the free-silver Democracy of the west. The speech
excited an enthusiasm and an admiration which led to the
nomination of Mr. Bryan for the presidency. That unexpected
choice was reached after four ballots, in each of which the
votes for the Nebraska orator rose steadily in number. At the
fifth ballot they had passed the requisite two-thirds, and his
nomination was declared to be unanimous, though protests were
made. The entire delegation from New York and many delegates
from New England and New Jersey cast no votes, refusing to
take any part in the nomination of a candidate on the platform
laid down. The chosen candidate for Vice President was Arthur
Sewall, of Maine.

UNITED STATES OF AMERICA: 1896.

The National Silver Party.
The considerable body of Republicans who desired an unlimited
free coinage of silver, and were prepared to quit their party
on that issue, had made efforts to persuade the Democratic
convention at Chicago to accept their leader, Senator Teller,
of Colorado, for its presidential candidate. Failing in that,
they assembled a convention of delegates at St. Louis, July
22-24, and, under the name of the "National Silver Party,"
took the alternative method of uniting the free-silver
Republican vote with that of the free-silver Democracy, by
accepting the Democratic nominations as their own. William J.
Bryan and Arthur Sewall were duly nominated for President and
Vice President, and a "platform" set forth as follows:

"The National Silver Party in Convention assembled hereby

adopts the following declaration of principles:

"First. The paramount issue at this time in the United States

is indisputably the money question. It is between the gold
standard, gold bonds, and bank currency on the one side and
the bimetallic standard, no bonds, and Government currency on
the other.

"On this issue we declare ourselves to be in favor of a

distinctively American financial system. We are unalterably
opposed to the single gold standard, and demand the immediate
return to the constitutional standard of gold and silver, by
the restoration by this Government, independently of any
foreign power, of the unrestricted coinage of both gold and
silver into standard money at the ratio of sixteen to one, and
upon terms of exact equality, as they existed prior to 1873;
the silver coin to be a full legal tender equally with gold
for all debts and dues, private and public, and we favor such
legislation as will prevent for the future the demonetization
of any kind of legal-tender money by private contract.

"We hold that the power to control and regulate a paper

currency is inseparable from the power to coin money, and
hence that all currency intended to circulate as money should
be issued, and its volume controlled by the General Government
only, and should be legal tender.

"We are unalterably opposed to the issue by the United States

of interest-bearing bonds in time of peace, and we denounce as
a blunder worse than a crime the present Treasury policy,
concurred in by a Republican House, of plunging the country in
debt by hundreds of millions in the vain attempt to maintain
the gold standard by borrowing gold, and we demand the payment
of all coin obligations of the United States as provided by
existing laws, in either gold or silver coin, at the option of
the Government and not at the option of the creditor.

"The demonetization of silver in 1873 enormously increased the

demand for gold, enhancing its purchasing power and lowering
all prices measured by that standard; and since that unjust
and indefensible act the prices of American products have
fallen upon an average nearly fifty per cent., carrying down
with them proportionately the money value of all other forms
of property. Such fall of prices has destroyed the profits of
legitimate industry, injuring the producer for the benefit of
the non-producer, increasing the burden of the debtor,
swelling the gains of the creditor, paralyzing the productive
energies of the American people, relegating to idleness vast
numbers of willing workers, sending the shadows of despair
into the home of the honest toiler, filling the land with
tramps and paupers, and building up colossal fortunes at the
money centres.

"In the effort to maintain the gold standard the country has,
within the last two years, in a time of profound peace and
plenty, been loaded down with $262,000,000 of additional
interest-bearing debt, under such circumstances as to allow a
syndicate of native and foreign bankers to realize a net
profit of millions on a single deal.
 "It stands confessed that the gold standard can only be upheld
by so depleting our paper currency as to force the prices of
our product below the European and even below the Asiatic
level to enable us to sell in foreign markets, thus
aggravating the very evils our people so bitterly complain of,
degrading American labor, and striking at the foundations of
our civilization itself.

"The advocates of the gold standard persistently claim that

the cause of our distress is over-production; that we have
produced so much that it has made us poor—which implies that
the true remedy is to close the factory, abandon the farm, and
throw a multitude of people out of employment, a doctrine that
leaves us unnerved and disheartened, and absolutely without
hope for the future.

"We affirm it to be unquestioned that there can be no such

economic paradox as over-production, and at the same time tens
of thousands of our fellow-citizens remaining half-clothed and
half-fed, and who are piteously clamoring for the common
necessities of life.

{569}

"Second. That over and above all other questions of policy we

are in favor of restoring to the people of the United States
the time-honored money of the Constitution—gold and silver,
not one, but both—the money of Washington and Hamilton and
Jefferson and Monroe and Jackson and Lincoln, to the end that
the American people may receive honest pay for an honest
product; that the American debtor may pay his just obligations
in an honest standard, and not in a standard that has depreciated
100 per cent. above all the great staples of our country, and
to the end further that the standard countries may be deprived
of the unjust advantage they now enjoy in the difference in
exchange between gold and silver—an advantage which tariff
 legislation alone cannot overcome.

"We therefore confidently appeal to the people of the United

States to leave in abeyance for the moment all other
questions, however important and even momentous they may
appear, to sunder, if need be, all former party ties and
affiliations, and unite in one supreme effort to free
themselves and their children from the domination of the money
power—a power more destructive than any which has ever been
fastened upon the civilized men of any race or in any age, and
upon the consummation of our desires and efforts we invoke the
gracious favor of Divine Providence.

"Inasmuch as the patriotic majority of the Chicago convention

embodied in the financial plank of its platform the principles
enunciated in the platform of the American Bimetallic party,
promulgated at Washington, D. C., January 22, 1896, and herein
reiterated, which is not only the paramount but the only real
issue in the pending campaign, therefore, recognizing that
their nominees embody these patriotic principles, we recommend
that this convention nominate William J. Bryan, of Nebraska, for
President, and Arthur Sewall, of Maine, for Vice President."

UNITED STATES OF AMERICA: 1896.

People's or Populist Party Platform and Nominations.

The People's Party, more commonly called the Populist Party,

held its national convention at St. Louis on the 22d-25th of
July, simultaneously with that of the National Silver Party,
and with strong influences urging it to act on the same line.
One section of the party strove to bring about a complete
endorsement of the Democratic nominations made at Chicago.
Another section, styled the "Middle-of-the-Road" Populists,
opposed any coalition with other parties; while a third wished
to nominate Bryan, with a Populist candidate for Vice
President, looking to an arrangement with the Democratic
organization for a fusion of electoral tickets in various
States. The idea of the latter prevailed, and William J. Bryan
was nominated for President, with Thomas E. Watson, of
Georgia, for Vice President. The People's Party had little
disagreement with the Chicago declarations of the Democratic
Party, and none at all on financial questions, concerning
which its doctrines were set forth in the following platform:

"The People's Party, assembled in National Convention,

reaffirms its allegiance to the principles declared by the
founders of the Republic, and also to the fundamental
principles of just government as enunciated in the platform of
the party in 1892.

"We recognize that through the connivance of the present and

preceding administrations the country has reached a crisis in
its National life, as predicted in our declaration of four
years ago, and that prompt and patriotic action is the supreme
duty of the hour.

"We realize that while we have political independence, our

financial and industrial independence is yet to be attained by
restoring to our country the constitutional control and
exercise of the functions necessary to a people's government,
which functions have been basely surrendered by our public
servants to corporations and monopolies. The influence of
European money-changers has been more potent in shaping
legislation than the voice of the American people. Executive
power and patronage have been used to corrupt our legislatures
and defeat the will of the people, and plutocracy has been
enthroned upon the ruins of democracy. To restore the
government intended by the fathers, and for the welfare and
prosperity of this and future generations, we demand the
establishment of an economic and financial system which shall
make us masters of our own affairs and independent of European
control, by the adoption of the following declaration of
principles:
"We demand a National money, safe and sound, issued by the
general government only, without the intervention of banks of
issue, to be a full legal tender for an debts, public and
private, and a just, equitable, and efficient means of
distribution direct to the people and through the lawful
disbursements of the Government.

"We demand the free and unrestricted coinage of silver and

gold at the present legal ratio of sixteen to one, without
waiting for the consent of foreign nations.

"We demand that the volume of circulating medium be speedily

increased to an amount sufficient to meet the demands of the
business population of this country and to restore the just
level of prices of labor and production.

"We denounce the sale of bonds and the increase of the public
interest-bearing bond debt made by the present administration
as unnecessary and without authority of law, and we demand
that no more bonds be issued except by specific act of
Congress.

"We demand such legislation as will prevent the demonetization

of the lawful money of the United States by private contract.

"We demand that the Government, in payment of its obligations,

shall use its option as to the kind of lawful money in which
they are to be paid, and we denounce the present and preceding
administrations for surrendering this option to the holders of
government obligations.

"We demand a graduated income tax, to the end that aggregated

wealth shall bear its just proportion of taxation, and we
denounce the recent decision of the Supreme Court relative to
the income-tax law as a misinterpretation of the Constitution
and an invasion of the rightful powers of Congress over the
subject of taxation.
 "We demand that postal savings banks be established by the
Government for the safe deposit of the savings of the people
and to facilitate exchange.

"Transportation being a means of exchange and a public

necessity, the Government should own and operate the railroads
in the interest of the people and on non-partisan basis, to
the end that all may be accorded the same treatment in
transportation, and that the tyranny and political power now
exercised by the great railroad corporations, which result in
the impairment if not the destruction of the political rights
and personal liberties of the citizens, may be destroyed. Such
ownership is to be accomplished gradually, in a manner
consistent with sound public policy.

{570}

"The interest of the United States in the public highways

built with public moneys and the proceeds of extensive grants
of land to the Pacific railroads should never be alienated,
mortgaged, or sold, but guarded and protected for the general
welfare as provided by the laws organizing such railroads. The
foreclosure of existing liens of the United States on these
roads should at once follow default in the payment of the debt
of the companies, and at the foreclosure sales of said roads
the Government should purchase the same if it becomes
necessary to protect its interests therein, or if they can be
purchased at a reasonable price; and the Government should
operate said railroads as public highways for the benefit of
the whole and not in the interest of the few, under suitable
provisions for protection of life and property, giving to all
transportation interests and privileges and equal rates for
fares and freight.

"We denounce the present infamous schemes for refunding those

debts and demand that the laws now applicable thereto be
executed and administered according to their true intent and
spirit.

"The telegraph, like the post-office system, being a necessity

for the transmission of news, should be owned and operated by
the Government in the interest of the people.

"The true policy demands that the National and State

legislation shall be such as will ultimately enable every
prudent and industrious citizen to secure a home, and
therefore the land should not be monopolized for speculative
purposes.

"All land now held by railroads and other corporations in

excess of their actual needs should by lawful means be
reclaimed by the Government and held for actual settlers only,
and private land monopoly, as well as alien ownership, should
be prohibited.

"We condemn the frauds by which the land grant to the Pacific
Railroad Companies have, through the connivance of the
Interior Department, robbed multitudes of bona fide settlers
of their homes and miners of their claims, and we demand
legislation by Congress which will enforce the exemption of
mineral land from such grants after as well as before patent.

"We demand that bona fide settlers on all public lands be

granted free homes, as provided in the National homestead law,
and that no exception be made in the case of Indian
reservations when opened for settlement, and that all lands
not now patented come under this demand.

"We favor a system of direct legislation through the

initiative and referendum under proper constitutional
safeguards.

"We demand the election of President, Vice-President, and

United States Senators by a direct vote of the people.

"We tender to the patriotic people of Cuba our deepest

sympathy in their heroic struggle for political freedom and
independence, and we believe the time has come when the United
States, the great Republic of the world, should recognize that
Cuba is and of right ought to be a free and independent State.

"We favor home rule in the Territories and the District of

Columbia and the early admission of the Territories as States.

"All public salaries should be made to correspond to the price

of labor and its products.

"In times of great industrial depression idle labor should be

employed on public works as far as practicable.

"The arbitrary course of the courts in assuming to imprison

citizens for indirect contempt and ruling by injunction should
be prevented by proper legislation.

"We favor just pensions for our disabled Union soldiers.

"Believing that the elective franchise and untrammelled ballot

are essential to a government of, for, and by the people, the
People's Party condemn the wholesale system of
disfranchisement adopted in some States as unrepublican and
undemocratic, and we declare it to be the duty of the several
State legislatures to take such action as will secure a full,
free, and fair ballot and an honest count.

"While the foregoing propositions constitute the platform upon

which our party stands, and for the vindication of which its
organization will be maintained, we recognize that the great
and pressing issue of the pending campaign, upon which the
present Presidential election will turn, is the financial
question, and upon this great and specific issue between the
 parties we cordially invite the aid and co-operation of all
organizations and citizens agreeing with us upon this vital
question."

UNITED STATES OF AMERICA: 1896.

National Democratic Platform and Nominations.

An extensive revolt in the Democratic Party against the

declarations and the action of the party convention at Chicago
had been quickly made manifest, and steps were soon taken
towards giving it an organized form. These led to the
assembling of a convention of delegates at Indianapolis, on
the 2d and 3d of September, which, in the name of the
"National Democratic Party," repudiated the platform and the
candidates put forward at Chicago, and branded them as false
to the historic party name which they assumed. General John M.
Palmer, of Illinois, was put in nomination for President, and
General Simon Bolivar Buckner, of Kentucky, for Vice
President, of the United States, and a declaration of
Democratic principles adopted, the fundamental passages of
which are quoted in the following:

"This convention has assembled to uphold the principles upon

which depend the honor and welfare of the American people, in
order that democrats throughout the Union may unite their
patriotic efforts to avert disaster from their country and
ruin from their party.

"The democratic party is pledged to equal and exact justice to

all men of every creed and condition; to the largest freedom
of the individual consistent with good government; to the
preservation of the federal government in its constitutional
vigor, and to the support of the states in all their just
rights; to economy in the public expenditures; to the
maintenance of the public faith and sound money; and it is
opposed to paternalism and all class legislation. The
declarations of the Chicago convention attack individual
 freedom, the right of private contract, the independence of
the judiciary, and the authority of the president to enforce
federal laws. They advocate a reckless attempt to increase the
price of silver by legislation, to the debasement of our
monetary standard; and threaten unlimited issues of paper
money by the government.
{571}
They abandon for republican allies the democratic cause of
tariff reform, to court favor of protectionists to their
fiscal heresy. In view of these and other grave departures
from democratic principles, we cannot support the candidates
of that convention, nor be bound by its acts. The democratic
party has survived defeats, but could not survive a victory
won in behalf of the doctrine and policy proclaimed in its
name at Chicago.

"The conditions, however, which made possible such utterances

from a national convention, are the direct result of class
legislation by the republican party. It still proclaims, as it
has for years, the power and duty of government to raise and
maintain prices by law, and it proposes no remedy for existing
evils except oppressive and unjust taxation. … The demand of
the republican party for an increase in tariff taxation has
its pretext in the deficiency of the revenue, which has its
causes in the stagnation of trade and reduced consumption, due
entirely to the loss of confidence that has followed the
populist threat of free coinage and depreciation of our money,
and the republican practice of extravagant appropriations beyond
the needs of good government. We arraign and condemn the
populistic conventions of Chicago and St. Louis for their
cooperation with the republican party in creating these
conditions, which are pleaded in justification of a heavy
increase of the burdens of the people by a further resort to
protection. We therefore denounce protection and its ally,
free coinage of silver, as schemes for the personal profit of
a few at the expense of the masses; and oppose the two parties
which stand for these schemes as hostile to the people of the
republic, whose food and shelter, comfort and prosperity are
attacked by higher taxes and depreciated money. In fine, we
reaffirm the historic democratic doctrine of tariff for
revenue only. …

"The experience of mankind has shown that, by reason of their

natural qualities, gold is the necessary money of the large
affairs of commerce and business, while silver is conveniently
adapted to minor transactions, and the most beneficial use of
both together can be insured only by the adoption of the
former as a standard of monetary measure, and the maintenance
of silver at a parity with gold by its limited coinage under
suitable safeguards of law. Thus the largest possible
employment of both metals is gained with a value universally
accepted throughout the world, which constitutes the only
practical bimetallic currency, assuring the most stable
standard, and especially the best and safest money for all who
earn their livelihood by labor or the produce of husbandry. They
cannot suffer when paid in the best money known to man, but
are the peculiar and most defenceless victims of a debased and
fluctuating currency, which offers continual profits to the
money changer at their cost.

"Realizing these truths demonstrated by long and public

inconvenience and loss, the democratic party, in the interests
of the masses and of equal justice to all, practically
established by the legislation of 1834 and 1853 the gold
standard of monetary measurement, and likewise entirely
divorced the government from banking and currency issues. To
this long-established democratic policy we adhere, and insist
upon the maintenance of the gold standard, and of the parity
therewith of every dollar issued by the government, and are
firmly opposed to the free and unlimited coinage of silver and
to the compulsory purchase of silver bullion. But we denounce
also the further maintenance of the present costly patchwork
system of national paper currency as a constant source of
injury and peril. We assert the necessity of such intelligent
 currency reform as will confine the government to its
legitimate functions, completely separated from the banking
business, and afford to all sections of our country uniform,
safe, and elastic bank currency under governmental
supervision, measured in volume by the needs of business.

"The fidelity, patriotism, and courage with which President

Cleveland has fulfilled his great public trust, the high
character of his administration, its wisdom and energy in the
maintenance of civil order and the enforcement of the laws,
its equal regard for the rights of every class and every
section, its firm and dignified conduct of foreign affairs,
and its sturdy persistence in upholding the credit and honor
of the nation are fully recognized by the democratic party,
and will secure to him a place in history beside the fathers
of the republic. We also commend the administration for the
great progress made in the reform of the public service, and
we indorse its effort to extend the merit system still
further. We demand that no backward step be taken, but that
the reform be supported and advanced until the un-democratic
spoils system of appointments be eradicated."

UNITED STATES OF AMERICA: 1896.

Prohibition Platform and Nominations.

The Prohibition Party had been the first to open the

presidential campaign with candidates placed in the field. Its
national convention was held at Pittsburg, on the 27th and
28th of May, and its nominees for President and Vice President
were Joshua Levering, of Maryland, and Hale Johnson, of
Illinois. But a split in the convention occurred on attempts
made to graft free-silver and kindred doctrines on the
one-issue platform which the majority of the party desired.
Except in a single particular, the latter prevailed. The
platform adopted was as follows:

"The Prohibition Party, in national convention assembled,