Download Non-participation in Arbitral Proceedings under Annex VII UNCLOS

Non-participation in Arbitral Proceedings under Annex VII
UNCLOS
The South China Sea case
Symposium on the South China Sea Award
7 December 2016
Dr. Otto Spijkers
Senior Research Associate
Netherlands Institute for the Law of the Sea
(NILOS)
Outline
– Non-participation in the past
– Law on non-participation
– Introduction of the case and role of non-participating State
– Legal and practical consequences of non-participation according to
Tribunal
– Non-participation in the future
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Non-participation in the past
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Non-participation in the past
• Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States)
• Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory
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Law on non-participation
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• States can choose type of dispute settlement mechanism
• Default option is arbitration under Annex VII
• Unilateral submission possible
– Annex VII, Article 1: “any party to a dispute may submit the
dispute to the arbitral procedure provided for in this Annex by
written notification addressed to the other party or parties to the
dispute.”
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• Article 9 (Default of appearance):
– If one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may
request the tribunal to continue the proceedings and to make its
award. Absence of a party or failure of a party to defend its case
shall not constitute a bar to the proceedings. Before making its
award, the arbitral tribunal must satisfy itself not only that it has
jurisdiction over the dispute but also that the claim is well founded
in fact and law.
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Introduction of the case and role of nonparticipating State
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Role of non-participating State
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22 January 2013: Arbitration instituted by Philippines against China
7 December 2014: Chinese position paper
29 October 2015: Award on jurisdiction
30 October 2015 : Comments by Chinese Ministry of Foreign Affairs
12 July 2016: Award on merits
13 July 2016 – today: a continuous flow of comments by State
representatives, scholars, NGOs, etc.
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• Unanimous (!) award was issued, in which the Applicant State
basically “won” on all submissions
• Respondent State made extensive reservations to the jurisdiction of
the arbitral tribunal, but Applicant formulated its submissions in such
a way as to circumvent the reservations.
• Tribunal took great efforts to come up with arguments and evidence
to support the Respondent.
• Respondent State indicated, before an award on the merits was
issued, that it did not consider itself bound by that award.
• Respondent State did express itself on the legal issues in other fora:
in the media, in scholarly articles, at conferences, and so on.
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Legal and practical consequences of nonparticipation according to Tribunal itself
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Is there a right to non-participation?
• Respondent: “not participating in arbitral proceedings is a right
enjoyed by a sovereign State”
• Respondent: Tribunal should clearly distinguish two different “rights”:
– Right not to accept – or: right to reject - the arbitral award because
of abuse of legal proceedings by applicant
– Right not to appear in the arbitral proceedings
• non-appearance can be a perfectly legitimate procedural course
of action, and should have no consequences on the award
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Legal consequences of non-participation
• Non-appearance is not in itself a breach of UNCLOS
• Non-participating State is bound under international law by
the award of the Tribunal
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Procedural consequences of non-participation
• Basic rule: the participating State should not be put at a
disadvantage because of the non-appearance of the other
• This means the Tribunal must:
– Avoid unnecessary costs and delays
– Give participating State an opportunity to respond to arguments the
non-participating State may have come up with
– Avoid that the participating State is put in the position of having to
guess what the non-participating State’s arguments might be and be
forced to formulate arguments for the non-participating State (play
devil’s advocate)
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Procedural consequences of non-participation
• At the same time, the Tribunal must take extra steps to
ensure procedural fairness:
– Deliver all communications and materials to non-participating State
(copies of transcripts hearings, award, memorials, etc.)
– Keep non-participating State informed of all developments in the
proceedings
– Keep inviting non-participating State to take part
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Procedural consequences of non-participation
• Tribunal must avoid giving a default judgment:
– Tribunal must realize it is deprived of the benefit of one of the
party’s views on factual and legal issues
– Tribunal must not simply adopt the applicant’s arguments or accept
its assertions untested
– Tribunal must take steps to ascertain non-participating State’s
position on the issues for decision, based on statements made by
public statement
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Procedural consequences of non-participation
• Fact-finding by Tribunal:
– Tribunal must question experts provided by applicant (crossexamination)
– Tribunal must appoint its own experts to provide independent
opinion
– Tribunal must itself consult historical records
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