179
At the second day of the hearings, the Netherlands delegation expressed its frustrations, as follows:
I would like to start out with the continuing and regretful situation of the absence of our
counterparts; we have been looking at an empty table the past few days. As I mentioned
before, and I wish to reiterate, we continue to regret the non-participation of the Russian
Federation. Also, I think this complicates the task of the Tribunal in establishing whether
the claim that the Netherlands is making is well-founded in fact and in law.
43
The Netherlands then made a very interesting reference to a judgment of the
International Court of Justice, delivered only a few days before the hearing before
the Arbitral Tribunal. In this judgment, the ICJ noted that “whilst the burden of
proof rests in principle on the party which alleges a fact, this does not relieve the
other party of its duty to co-operate in the provision of such evidence as may be in
its possession that could assist the Court in resolving the dispute submitted to it”.
44
After quoting this paragraph of the ICJ’s judgment to the Tribunal, the Netherlands
delegation continued as follows:
This is exactly the difficulty with the current case, in which our opponents have chosen not
to appear, in spite of their duty to co-operate such as formulated by the International Court
of Justice. Thus, evidence that may be of assistance to this Tribunal is not fully available to
you; and the difficulty in establishing facts in a case directly influences determination and
application of the relevant law.
45
In its award on the merits of 14 August 2015, the Arbitral Tribunal again explained
how it had dealt with the non-appearing Russians. It continued the proceedings,
whilst at the same time taking all sorts of measures to “safeguard Russia’s procedural rights”.
46
The list of measures taken was long. The Tribunal had:
– Ensured that all communications and materials submitted in this arbitration have
been promptly delivered, both electronically and physically, to the Russian
Ministry of Foreign Affairs in Moscow and to the Ambassador of Russia to the
Netherlands in The Hague;
– Granted Russia adequate time to submit responses to the written pleadings submitted by the Netherlands;
– Provided Russia adequate notice of procedural meetings and the hearing in the
case;
– Promptly provided Russia with copies of recordings and/or transcripts of procedural meetings and the hearing; and
– Reiterated the right of Russia to participate in the proceedings at any stage.
47
43 PCA, Arctic Sunrise Arbitration, Hearing, Day 2, Wednesday, 11 February 2015, transcripts,
p. 19.
44 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, 3 February 2015, para. 173.
45 PCA, Arctic Sunrise Arbitration, Hearing, Day 2, transcripts, p. 20.
46 PCA, Arctic Sunrise Arbitration, Award on the Merits, 14 August 2015, para. 9.
47 Ibidem, para. 9.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
At the second day of the hearings, the Netherlands delegation expressed its frustrations, as follows:
I would like to start out with the continuing and regretful situation of the absence of our
counterparts; we have been looking at an empty table the past few days. As I mentioned
before, and I wish to reiterate, we continue to regret the non-participation of the Russian
Federation. Also, I think this complicates the task of the Tribunal in establishing whether
the claim that the Netherlands is making is well-founded in fact and in law.
43
The Netherlands then made a very interesting reference to a judgment of the
International Court of Justice, delivered only a few days before the hearing before
the Arbitral Tribunal. In this judgment, the ICJ noted that “whilst the burden of
proof rests in principle on the party which alleges a fact, this does not relieve the
other party of its duty to co-operate in the provision of such evidence as may be in
its possession that could assist the Court in resolving the dispute submitted to it”.
44
After quoting this paragraph of the ICJ’s judgment to the Tribunal, the Netherlands
delegation continued as follows:
This is exactly the difficulty with the current case, in which our opponents have chosen not
to appear, in spite of their duty to co-operate such as formulated by the International Court
of Justice. Thus, evidence that may be of assistance to this Tribunal is not fully available to
you; and the difficulty in establishing facts in a case directly influences determination and
application of the relevant law.
45
In its award on the merits of 14 August 2015, the Arbitral Tribunal again explained
how it had dealt with the non-appearing Russians. It continued the proceedings,
whilst at the same time taking all sorts of measures to “safeguard Russia’s procedural rights”.
46
The list of measures taken was long. The Tribunal had:
– Ensured that all communications and materials submitted in this arbitration have
been promptly delivered, both electronically and physically, to the Russian
Ministry of Foreign Affairs in Moscow and to the Ambassador of Russia to the
Netherlands in The Hague;
– Granted Russia adequate time to submit responses to the written pleadings submitted by the Netherlands;
– Provided Russia adequate notice of procedural meetings and the hearing in the
case;
– Promptly provided Russia with copies of recordings and/or transcripts of procedural meetings and the hearing; and
– Reiterated the right of Russia to participate in the proceedings at any stage.
47
43 PCA, Arctic Sunrise Arbitration, Hearing, Day 2, Wednesday, 11 February 2015, transcripts,
p. 19.
44 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, 3 February 2015, para. 173.
45 PCA, Arctic Sunrise Arbitration, Hearing, Day 2, transcripts, p. 20.
46 PCA, Arctic Sunrise Arbitration, Award on the Merits, 14 August 2015, para. 9.
47 Ibidem, para. 9.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…