178
tion procedure should be interpreted as identical to a plea contesting the jurisdiction
of the arbitral tribunal.
34
In such case, “the regular practice of States […] is to appear
before the court of tribunal and challenge its jurisdiction”.
35
The Netherlands
referred extensively to Art. 9 Annex VII LOSC, but not a single time to the lengthy
Rule 25, quoted above. It is not clear why this was done. The Netherlands concluded
in its memorial that the Arbitral Tribunal must hold that “the non-appearance of the
Russian Federation cannot by itself constitute an obstacle to the Tribunal entertaining the Netherlands’ claim [and that] the Tribunal must, on its own accord, examine
the question of jurisdiction and make a decision thereon [and that] the Tribunal
needs to ensure that the factual and legal requirements of the Netherlands’ claim 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”.
36
At the end of the memorial, the Netherlands suggested to the Arbitral Tribunal
that it should consider the Russian Federation’s diplomatic notes in which it
explained its non-acceptance and non-participation “as a plea concerning its
jurisdiction”.
37
In a separate procedural order, the Arbitral Tribunal followed this
suggestion and ruled that “the statement by Russia in its note verbale dated 22
October 2013, relying on the declaration it made upon ratification of the Convention,
that it “does not accept” this arbitration, constituted a plea concerning this Arbitral
Tribunal’s jurisdiction”.
38
On 26 November 2014, the Arbitral Tribunal issued its award on jurisdiction.
39
Unsurprisingly, in the award on jurisdiction it referred to Russia’s notes verbales of
22 October 2013 and of 27 February 2014 as “Plea Concerning Jurisdiction”. This
is most obvious in the Glossary of Defined Terms.
40
The Tribunal basically agreed
with the Netherlands that Russia could not rely on its declaration to exclude the
present dispute from the Tribunal’s jurisdiction. Of note is that Russia refused to pay
its share of the costs of the arbitration, which was considerable (150,000 euros).
41
We then move from the jurisdiction to the merits stage of the arbitration. At the
start of the hearings on the merits, the President of the Arbitral Tribunal explained
the practical consequences of Russia’s non-appearance, as follows:
In light of the fact that the Russian Federation is not participating in the Tribunal proceedings today and tomorrow, of course at this hearing the Tribunal must seek as much clarification as possible from the Netherlands, and I hope that this is understood by the Netherlands.
The Tribunal or any of its members may also have questions for the witnesses presented by
the Netherlands at this hearing.
42
34 Ibidem, para. 46.
35 Ibidem.
36 Ibidem, para. 58.
37 Ibidem, para. 59.
38 PCA, Arctic Sunrise Arbitration, Procedural order no. 4 (Bifurcation), 21 November 2014.
39 PCA, Arctic Sunrise Arbitration, Award on Jurisdiction, 26 November 2014.
40 Ibidem, p. iv. See also paras. 5–6, 18, 41, 48, 48, 59, and 65–78.
41 Ibidem, paras. 31–32.
42 PCA, Arctic Sunrise Arbitration, Hearing, Day 1, Tuesday, 10 February 2015, transcripts, p. 2.
O. Spijkers
tion procedure should be interpreted as identical to a plea contesting the jurisdiction
of the arbitral tribunal.
34
In such case, “the regular practice of States […] is to appear
before the court of tribunal and challenge its jurisdiction”.
35
The Netherlands
referred extensively to Art. 9 Annex VII LOSC, but not a single time to the lengthy
Rule 25, quoted above. It is not clear why this was done. The Netherlands concluded
in its memorial that the Arbitral Tribunal must hold that “the non-appearance of the
Russian Federation cannot by itself constitute an obstacle to the Tribunal entertaining the Netherlands’ claim [and that] the Tribunal must, on its own accord, examine
the question of jurisdiction and make a decision thereon [and that] the Tribunal
needs to ensure that the factual and legal requirements of the Netherlands’ claim 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”.
36
At the end of the memorial, the Netherlands suggested to the Arbitral Tribunal
that it should consider the Russian Federation’s diplomatic notes in which it
explained its non-acceptance and non-participation “as a plea concerning its
jurisdiction”.
37
In a separate procedural order, the Arbitral Tribunal followed this
suggestion and ruled that “the statement by Russia in its note verbale dated 22
October 2013, relying on the declaration it made upon ratification of the Convention,
that it “does not accept” this arbitration, constituted a plea concerning this Arbitral
Tribunal’s jurisdiction”.
38
On 26 November 2014, the Arbitral Tribunal issued its award on jurisdiction.
39
Unsurprisingly, in the award on jurisdiction it referred to Russia’s notes verbales of
22 October 2013 and of 27 February 2014 as “Plea Concerning Jurisdiction”. This
is most obvious in the Glossary of Defined Terms.
40
The Tribunal basically agreed
with the Netherlands that Russia could not rely on its declaration to exclude the
present dispute from the Tribunal’s jurisdiction. Of note is that Russia refused to pay
its share of the costs of the arbitration, which was considerable (150,000 euros).
41
We then move from the jurisdiction to the merits stage of the arbitration. At the
start of the hearings on the merits, the President of the Arbitral Tribunal explained
the practical consequences of Russia’s non-appearance, as follows:
In light of the fact that the Russian Federation is not participating in the Tribunal proceedings today and tomorrow, of course at this hearing the Tribunal must seek as much clarification as possible from the Netherlands, and I hope that this is understood by the Netherlands.
The Tribunal or any of its members may also have questions for the witnesses presented by
the Netherlands at this hearing.
42
34 Ibidem, para. 46.
35 Ibidem.
36 Ibidem, para. 58.
37 Ibidem, para. 59.
38 PCA, Arctic Sunrise Arbitration, Procedural order no. 4 (Bifurcation), 21 November 2014.
39 PCA, Arctic Sunrise Arbitration, Award on Jurisdiction, 26 November 2014.
40 Ibidem, p. iv. See also paras. 5–6, 18, 41, 48, 48, 59, and 65–78.
41 Ibidem, paras. 31–32.
42 PCA, Arctic Sunrise Arbitration, Hearing, Day 1, Tuesday, 10 February 2015, transcripts, p. 2.
O. Spijkers