177
Tribunal to continue the proceedings. The Netherlands thus adopted the same strategy as it had done successfully before the ITLOS.
In an order of 17 March 2014, the Arbitral Tribunal inter alia adopted its Rules
of Procedure.
26
These rules contained a very detailed rule on default of appearance
(Rule 25), which builds on Art. 9 Annex VII LOSC. The first paragraph is basically
identical to Art. 9, and then follows the following second paragraph:
In the event that a Party does not appear before the Arbitral Tribunal or fails to defend its
case, the Arbitral Tribunal shall invite written arguments from the appearing Party on, or
pose questions regarding, specific issues which the Arbitral Tribunal considers have not
been canvassed, or have been inadequately canvassed, in the pleadings submitted by the
appearing Party. The appearing Party shall make a supplemental written submission in relation to the matters identified by the Arbitral Tribunal within 45 days of the Arbitral
Tribunal’s invitation. The supplemental submission of the appearing Party shall be communicated to the non-appearing Party and the non-appearing Party shall indicate within 15
days of the communication of the supplemental submission whether it intends to submit
any comments thereon. If the non-appearing Party indicates that it intends to submit comments on the supplemental submission, it shall do so within 30 days of its indication of
intent. The Arbitral Tribunal may take whatever other steps it may consider necessary,
within the scope of its powers under the Convention, its Annex VII, and these Rules, to
afford to each of the Parties a full opportunity to present its case.
It is not clear how exactly this more detailed rule relates to Art. 9 Annex VII. All
the Rules of Procedure say about this relationship is that “the Arbitral Tribunal shall
function in accordance with these Rules, the relevant provisions of the Convention,
and Annex VII to the Convention”.
27
Following its own rules of procedure, the Arbitral Tribunal decided to continue
with the proceedings. It noted that “it remains open to Russia to participate in these
proceedings at any stage, in the manner that the Arbitral Tribunal deems appropriate
to preserve the integrity and fairness of the proceedings”,
28
and that “Russia shall
continue to receive a copy of all written communications between the Parties and
the Tribunal in these proceedings”.
29
In its memorial of 31 August 2014, the Netherlands once again “regrets the
refusal of the Russian Federation to participate in the present arbitral proceedings”.
30
In view of the Netherlands, “its non-participation has a negative impact on the sound
administration of justice [and it] adversely affects the integrity of the compulsory
dispute settlement system under the LOSC”.
31
It is even considered a failure by
Russia to act in good faith.
32
The Netherlands developed its argumentation in considerable detail, once again referring to the case law of the ICJ. It also referred again
to the three-pronged test.
33
It once again explained that a refusal to accept an arbitra26 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Procedural order no. 2, 17 March 2014.
27 Art. 1 Rules of Procedure, annexed to procedural order no. 2.
28 PCA, Arctic Sunrise Arbitration, Procedural order no. 2, para. 3.2.
29 Ibidem, para. 3.3.
30 Arctic Sunrise Arbitration, Memorial of the Kingdom of the Netherlands, 31 August 2014, available at https://pcacases.com/web/sendAttach/1406, para. 36.
31 Ibidem, para. 36.
32 Ibidem, para. 36.
33 Ibidem, paras. 34–59. For the three-pronged test, see para. 50.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
Tribunal to continue the proceedings. The Netherlands thus adopted the same strategy as it had done successfully before the ITLOS.
In an order of 17 March 2014, the Arbitral Tribunal inter alia adopted its Rules
of Procedure.
26
These rules contained a very detailed rule on default of appearance
(Rule 25), which builds on Art. 9 Annex VII LOSC. The first paragraph is basically
identical to Art. 9, and then follows the following second paragraph:
In the event that a Party does not appear before the Arbitral Tribunal or fails to defend its
case, the Arbitral Tribunal shall invite written arguments from the appearing Party on, or
pose questions regarding, specific issues which the Arbitral Tribunal considers have not
been canvassed, or have been inadequately canvassed, in the pleadings submitted by the
appearing Party. The appearing Party shall make a supplemental written submission in relation to the matters identified by the Arbitral Tribunal within 45 days of the Arbitral
Tribunal’s invitation. The supplemental submission of the appearing Party shall be communicated to the non-appearing Party and the non-appearing Party shall indicate within 15
days of the communication of the supplemental submission whether it intends to submit
any comments thereon. If the non-appearing Party indicates that it intends to submit comments on the supplemental submission, it shall do so within 30 days of its indication of
intent. The Arbitral Tribunal may take whatever other steps it may consider necessary,
within the scope of its powers under the Convention, its Annex VII, and these Rules, to
afford to each of the Parties a full opportunity to present its case.
It is not clear how exactly this more detailed rule relates to Art. 9 Annex VII. All
the Rules of Procedure say about this relationship is that “the Arbitral Tribunal shall
function in accordance with these Rules, the relevant provisions of the Convention,
and Annex VII to the Convention”.
27
Following its own rules of procedure, the Arbitral Tribunal decided to continue
with the proceedings. It noted that “it remains open to Russia to participate in these
proceedings at any stage, in the manner that the Arbitral Tribunal deems appropriate
to preserve the integrity and fairness of the proceedings”,
28
and that “Russia shall
continue to receive a copy of all written communications between the Parties and
the Tribunal in these proceedings”.
29
In its memorial of 31 August 2014, the Netherlands once again “regrets the
refusal of the Russian Federation to participate in the present arbitral proceedings”.
30
In view of the Netherlands, “its non-participation has a negative impact on the sound
administration of justice [and it] adversely affects the integrity of the compulsory
dispute settlement system under the LOSC”.
31
It is even considered a failure by
Russia to act in good faith.
32
The Netherlands developed its argumentation in considerable detail, once again referring to the case law of the ICJ. It also referred again
to the three-pronged test.
33
It once again explained that a refusal to accept an arbitra26 PCA, Arctic Sunrise Arbitration (Netherlands v. Russia), Procedural order no. 2, 17 March 2014.
27 Art. 1 Rules of Procedure, annexed to procedural order no. 2.
28 PCA, Arctic Sunrise Arbitration, Procedural order no. 2, para. 3.2.
29 Ibidem, para. 3.3.
30 Arctic Sunrise Arbitration, Memorial of the Kingdom of the Netherlands, 31 August 2014, available at https://pcacases.com/web/sendAttach/1406, para. 36.
31 Ibidem, para. 36.
32 Ibidem, para. 36.
33 Ibidem, paras. 34–59. For the three-pronged test, see para. 50.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…