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I will be writing a summary of the arbitration of the Trail Smelter from the early 1920s to its conclusion in 1941.
Section Three Arbitration This section will outline the complexities of the arbitration that resulted when the dispute continued long term and include the involvement of the federal governments and international adjudicators.
I cannot do justice to the intricacies of the arbitration within 600 words.

Arbitration Details

The dispute is divided between litigation in the International Joint Commission and arbitration in a three-person Arbitral Commission and took place between 1927 – 1941. The case was originally between the farmers in the affected area and Cominco; however, what started off as the smelter versus agriculturalists soon became an international issue.

Cominco would have preferred to buy out the U.S. interests with cash payments, but Washington State's Constitution barred foreigners from owning property in Washington. While some farmers accepted payouts from Cominco, most came together to petition state and federal representatives for compensation due to the toxic smoke that had damaged their farmland. After complaints funneled through diplomatic channels, the dispute moved from a case between the agriculturalists and the smelter to Canada versus the United States eventually being referred to the International Joint Commission in 1927.

Both sides employed a variety of experts to represent their interests,including scientists and private or public enterprises. The United States used the U.S. State Department along with scientists from the Department of Agriculture to conduct investigations about the effects of the smelter's output on agriculture in the region. The Canadian side turned to Canada’s National Research Council (NRC) and was granted access to the Salt Lake Research Station to conduct research for the smelter's defence. These experts would remain active actors throughout the dispute. The decision laid down by the IJC awarded the farmers $350,000 in 1931 for the damages incurred by the Trail Smelter; this was much less than the farmers had sought. Additionally, this was the first time the IJC ruled on a trans-boundary air pollution case. The U.S. State Department flatly rejected the decision and submitted for arbitration. This resulted in diplomatic maneuvering which lead to an Arbitral Tribunal; it was the Tribunal’s decision that produced the most significant results in the dispute.

Tribunal

It was not until 1935 that a Convention was signed in Ottawa, Canada that legitimized the Tribunal. The Convention outlined 11 Articles under which the Tribunal would operate. Of the 11 articles, Article 3 outlines the four questions the Tribunal was to answer.

1. Whether damage caused by the Trail Smelter in the State of Washington has occurred since the first day of January, 1932, and, if so, what indemnity should be paid?
2. In the event of the answer to the first part of the preceding question being is positive, to what extent should there be compensation?
3. In light of the answer to the preceding question, what measures or regime, if any, should be adopted or maintained by the Trail Smelter?
4. What indemnity or compensation, if any, should be paid because of any decision or decisions rendered by the Tribunal pursuant to the next two preceding questions?

The American lawyers’ argument can be summarized as trying to prove that “invisible injury” occurred in the region. Large sums of money rested on the results of this case as the decision would affect various other smelting projects across North America; as such, the lawyers representing Cominco successfully limited the definition of damage to the actual, observable, economic damage. Lawyers on both sides were well practiced with a breadth of experience. R.C. “Judge” Crowe, VP of Cominco and a Montreal Corporate Lawyer, and John E. Read represented Cominco. The U.S. hired Jacob G. Metzger, a State Department attorney with experience in negotiating international claims. Metzger had a habit of not writing his arguments down, and when he died in 1937 the American scientists and lawyers went into the hearing unprepared.

The United States had conducted experiments that suggested sulphur soaked into the soil; however, the findings had limited clout in the arbitration because the data was from the early 1930s before the smelter implemented chemical recovery methods. On the other hand, the Canadians had the resources and the smelting industry supporting them. In addition to the industry support, the experimental data the American lawyers presented to the tribunal did not convince the arbitrators of “invisible injury” theory.

Because of the Canadian lawyers' success in narrowing the definition to the actual, observable, economic damage, the arbitrators awarded $78,000 in damages for 2 burns causing visible damage in 1934 and 1936. The final settlement for damages was awarded in April 1938 and was a victory for Cominco. When weighed against the backbone of the Trail economy - as well as the smelter's contributions to the war effort-, the economic contributions of small-scale famers in a less fertile agricultural area were minimal.