175
In view of the Netherlands, “if a State considers that an international court or
tribunal does not have jurisdiction, as the Russian Federation seems to indicate in its
communication to the Tribunal on 22 October, the regular practice of States is to
appear and challenge that jurisdiction”.
13
The Netherlands then referred to Russia’s
own practice, which had always been in line with this regular practice. And thus, “if
the Russian Federation believes that the arbitral tribunal that is being constituted
does not have jurisdiction, it would have been in keeping with its own practice to
argue so in these proceedings as well [but] instead, it has refused to participate [and]
thus, the Tribunal will have to address the consequences of this non-appearance”.
14
The Netherlands understood Art. 28 ITLOS Statute—quoted above—to require
the Tribunal to apply a “three-pronged” test. First, “the Tribunal must satisfy itself
that it has jurisdiction”; second, “the claim is well founded in fact”; and third, “the
claim is well-founded in law”.
15
Since the International Court of Justice (ICJ) has a
similar provision in its Statute—Art. 53
16
—the Netherlands extensively analyzed
the practice before that court. From this analysis, it concluded that “the nonappearance of the Russian Federation cannot by itself constitute an obstacle to the
prescription of provisional measures by the Tribunal [and that] the Tribunal must,
on its own accord, examine the question of jurisdiction [and that] the Tribunal needs
to ensure that the factual and legal requirements for prescribing the provisional
measures are met [and that] the Russian Federation, which has chosen not to appear,
remains a party to the case and is bound by the decision of the Tribunal”.
17
In
essence, it comes down to this: “the Russian Federation stated that it does not accept
the arbitration procedure and that it [does] not intend to participate in the proceedings before this Tribunal [but] ultimately it is for the arbitral tribunal to decide
whether it has jurisdiction [and not Russia], compétence de la compétence”.
18
The ITLOS was convinced by the reasoning of the Netherlands, and followed it.
It first “consider[ed] that the absence of a party or failure of a party to defend its case
does not constitute a bar to the proceedings and does not preclude the Tribunal from
prescribing provisional measures, provided that the parties have been given an
opportunity of presenting their observations on the subject”.
19
The Tribunal further
emphasized that a “non-appearing State is nevertheless a party to the proceedings”.
20
13 Public sitting held on Wednesday, 6 November 2013, at 10 a.m., at ITLOS, Hamburg, in the
Arctic Sunrise Case (Netherlands v. Russia), ITLOS/PV13/C22/1/Rev.1, p. 5.
14 Ibidem.
15 Ibidem, p. 6.
16 Art. 53 of the ICJ Statute provides that “[w]henever one of the parties does not appear before the
Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its
claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction […] but also
that the claim is well founded in fact and law.”
17 Public sitting held on Wednesday, 6 November 2013, pp. 8–9.
18 Ibidem, p. 12.
19 ITLOS, Arctic Sunrise Case (Netherlands v. Russia), Order, 22 November 2013, para. 48.
20 Ibidem, para. 51.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
In view of the Netherlands, “if a State considers that an international court or
tribunal does not have jurisdiction, as the Russian Federation seems to indicate in its
communication to the Tribunal on 22 October, the regular practice of States is to
appear and challenge that jurisdiction”.
13
The Netherlands then referred to Russia’s
own practice, which had always been in line with this regular practice. And thus, “if
the Russian Federation believes that the arbitral tribunal that is being constituted
does not have jurisdiction, it would have been in keeping with its own practice to
argue so in these proceedings as well [but] instead, it has refused to participate [and]
thus, the Tribunal will have to address the consequences of this non-appearance”.
14
The Netherlands understood Art. 28 ITLOS Statute—quoted above—to require
the Tribunal to apply a “three-pronged” test. First, “the Tribunal must satisfy itself
that it has jurisdiction”; second, “the claim is well founded in fact”; and third, “the
claim is well-founded in law”.
15
Since the International Court of Justice (ICJ) has a
similar provision in its Statute—Art. 53
16
—the Netherlands extensively analyzed
the practice before that court. From this analysis, it concluded that “the nonappearance of the Russian Federation cannot by itself constitute an obstacle to the
prescription of provisional measures by the Tribunal [and that] the Tribunal must,
on its own accord, examine the question of jurisdiction [and that] the Tribunal needs
to ensure that the factual and legal requirements for prescribing the provisional
measures are met [and that] the Russian Federation, which has chosen not to appear,
remains a party to the case and is bound by the decision of the Tribunal”.
17
In
essence, it comes down to this: “the Russian Federation stated that it does not accept
the arbitration procedure and that it [does] not intend to participate in the proceedings before this Tribunal [but] ultimately it is for the arbitral tribunal to decide
whether it has jurisdiction [and not Russia], compétence de la compétence”.
18
The ITLOS was convinced by the reasoning of the Netherlands, and followed it.
It first “consider[ed] that the absence of a party or failure of a party to defend its case
does not constitute a bar to the proceedings and does not preclude the Tribunal from
prescribing provisional measures, provided that the parties have been given an
opportunity of presenting their observations on the subject”.
19
The Tribunal further
emphasized that a “non-appearing State is nevertheless a party to the proceedings”.
20
13 Public sitting held on Wednesday, 6 November 2013, at 10 a.m., at ITLOS, Hamburg, in the
Arctic Sunrise Case (Netherlands v. Russia), ITLOS/PV13/C22/1/Rev.1, p. 5.
14 Ibidem.
15 Ibidem, p. 6.
16 Art. 53 of the ICJ Statute provides that “[w]henever one of the parties does not appear before the
Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its
claim. The Court must, before doing so, satisfy itself, not only that it has jurisdiction […] but also
that the claim is well founded in fact and law.”
17 Public sitting held on Wednesday, 6 November 2013, pp. 8–9.
18 Ibidem, p. 12.
19 ITLOS, Arctic Sunrise Case (Netherlands v. Russia), Order, 22 November 2013, para. 48.
20 Ibidem, para. 51.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…