183
not presented as a plea on jurisdiction, but rather as an explanation why Russia
decided not to accept the arbitration instituted against it. At the same time, China
made it clear that “this Position Paper [shall not] be regarded as China’s acceptance
of or participation in this arbitration”. Because the Tribunal, in China’s view, “manifestly has no jurisdiction over the present arbitration […] China’s rejection of and
non-participation in the present arbitration stand on solid ground in international
law”. China’s thus gave the impression that it was up to China—and not the
Tribunal—to decide on the issue of jurisdiction, and when China believed the
Tribunal would have no jurisdiction, it was China’s right, as a sovereign State, not
to accept and participate in the arbitration.
At the hearings on jurisdiction, China obviously was not present. The Philippines
sent a big delegation of lawyers, and they did bring up the issue of China’s nonparticipation. They began by stressing the uniqueness of the situation. “What is
novel about the present case - or, sadly, what was novel”, said the Philippines delegation, “is that China is the first respondent to refuse to participate in proceedings
instituted under the United Nations Convention on the Law of the Sea”.
69
Shortly
before, Russia had done the same in the Arctic Sunrise arbitration, and thus China
was, strictly speaking, not the first to do so. “China has nevertheless set forth its
jurisdictional objections in detail in its Position Paper which it has communicated to
the members of this Tribunal”, continued the Philippines delegation, and thus they
had something to argue against.
70
The Philippines delegation then addressed these
Chinese objections.
At the end of the jurisdiction hearing, the Philippines concluded by flattering the
arbitrators, as follows:
Despite the challenges that China’s non-appearance has posed, you have demonstrated your
evident determination to ‘satisfy [yourselves] … that [you] ha[ve] jurisdiction over the
dispute’ we have brought before you. Your astute questions, raised both before and during
these hearings, have made quite clear that the Tribunal has left no stone unturned. We hope
that we have properly and sufficiently addressed all the points that you have raised, and
demonstrated why there is manifestly no bar to the Tribunal exercising jurisdiction in this
case.
71
The Arbitral Tribunal confirmed in an award, delivered 29 October 2015, that it
had jurisdiction to settle the dispute.
72
The Arbitral Tribunal first summarized, in
one sentence, what non-participation amounted to in practice:
[China] did not participate in the constitution of the Tribunal, it did not submit a CounterMemorial in response to the Philippines’ Memorial, it did not attend the Hearing on
Jurisdiction in July 2015, and it has not advanced any of the funds requested by the Tribunal
toward the costs of arbitration. Throughout the proceedings, China has rejected and returned
69 PCA, South China Sea Arbitration (Philippines v. China), Final Transcript Day 2, Jurisdiction
Hearing, 8 July 2015, pp. 38–39.
70 South China Sea Arbitration, Final Transcript Day 2, Ibidem, p. 39.
71 PCA, South China Sea Arbitration, Final Transcript Day 3, Jurisdiction Hearing, 13 July 2015,
p. 79.
72 PCA, South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015.
Paras. 112–123 relate to the legal and practical consequences of China’s non-participation.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
not presented as a plea on jurisdiction, but rather as an explanation why Russia
decided not to accept the arbitration instituted against it. At the same time, China
made it clear that “this Position Paper [shall not] be regarded as China’s acceptance
of or participation in this arbitration”. Because the Tribunal, in China’s view, “manifestly has no jurisdiction over the present arbitration […] China’s rejection of and
non-participation in the present arbitration stand on solid ground in international
law”. China’s thus gave the impression that it was up to China—and not the
Tribunal—to decide on the issue of jurisdiction, and when China believed the
Tribunal would have no jurisdiction, it was China’s right, as a sovereign State, not
to accept and participate in the arbitration.
At the hearings on jurisdiction, China obviously was not present. The Philippines
sent a big delegation of lawyers, and they did bring up the issue of China’s nonparticipation. They began by stressing the uniqueness of the situation. “What is
novel about the present case - or, sadly, what was novel”, said the Philippines delegation, “is that China is the first respondent to refuse to participate in proceedings
instituted under the United Nations Convention on the Law of the Sea”.
69
Shortly
before, Russia had done the same in the Arctic Sunrise arbitration, and thus China
was, strictly speaking, not the first to do so. “China has nevertheless set forth its
jurisdictional objections in detail in its Position Paper which it has communicated to
the members of this Tribunal”, continued the Philippines delegation, and thus they
had something to argue against.
70
The Philippines delegation then addressed these
Chinese objections.
At the end of the jurisdiction hearing, the Philippines concluded by flattering the
arbitrators, as follows:
Despite the challenges that China’s non-appearance has posed, you have demonstrated your
evident determination to ‘satisfy [yourselves] … that [you] ha[ve] jurisdiction over the
dispute’ we have brought before you. Your astute questions, raised both before and during
these hearings, have made quite clear that the Tribunal has left no stone unturned. We hope
that we have properly and sufficiently addressed all the points that you have raised, and
demonstrated why there is manifestly no bar to the Tribunal exercising jurisdiction in this
case.
71
The Arbitral Tribunal confirmed in an award, delivered 29 October 2015, that it
had jurisdiction to settle the dispute.
72
The Arbitral Tribunal first summarized, in
one sentence, what non-participation amounted to in practice:
[China] did not participate in the constitution of the Tribunal, it did not submit a CounterMemorial in response to the Philippines’ Memorial, it did not attend the Hearing on
Jurisdiction in July 2015, and it has not advanced any of the funds requested by the Tribunal
toward the costs of arbitration. Throughout the proceedings, China has rejected and returned
69 PCA, South China Sea Arbitration (Philippines v. China), Final Transcript Day 2, Jurisdiction
Hearing, 8 July 2015, pp. 38–39.
70 South China Sea Arbitration, Final Transcript Day 2, Ibidem, p. 39.
71 PCA, South China Sea Arbitration, Final Transcript Day 3, Jurisdiction Hearing, 13 July 2015,
p. 79.
72 PCA, South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015.
Paras. 112–123 relate to the legal and practical consequences of China’s non-participation.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…