184
correspondence from the Tribunal sent by the Registry, explaining on each occasion ‘its
position that it does not accept the arbitration initiated by the Philippines’.
73
On the advice of the Philippines, the Arbitral Tribunal regarded the Chinese
Position Paper as a challenge to its jurisdiction.
74
It referred to the “academic literature by individuals closely associated with Chinese authorities”, but did not explicitly affirm that this could be regarded as reflective of the official Chinese position.
75
The Arbitral Tribunal rejected all arguments developed in that paper. It concluded
that Art. 9 Annex VII LOSC sought “to balance the risks of prejudice that could be
suffered by either party”:
First, it protects participating parties by ensuring that the proceedings will not be frustrated
by the decision of the other party not to participate. Second, it protects the rights of nonparticipating parties by ensuring that a tribunal will not simply accept the claim of the participating party by default. Instead, the Tribunal must satisfy itself that it has jurisdiction
and that the claim is well founded in fact and law.
76
The Tribunal then explained in some detail what it had done to safeguard the
procedural rights of both China and of the Philippines.
77
In the end, the Tribunal
accepted it had jurisdiction to adjudicate the submissions put before it by the
Philippines. This predictably led to a huge amount of publications by Chinese
scholars; these publications were without exception critical of the award.
78
Some of this criticism might be justified. But is China itself not partly to blame?
Is it not unfair that China, by being vague as to the exact qualification of some of its
arguments, basically left it to the Arbitral Tribunal to make China’s claims as strong
and legally persuasive as possible? At various times in its pleadings, the Philippines
protested about such favorable consequences non-appearance might have. This
might motivate States in the future to choose a litigation strategy of non- participation,
because you can just let the arbitrators do the work for you, instead of having to pay
dearly for expensive legal counsel to develop your arguments. These complaints
could also be heard during the hearings on the merits. For example, the delegation
of the Philippines reminded the Tribunal that “it is normally up to the Respondent
State to assert any applicable jurisdictional exclusions under Articles 297 or 298 as
affirmative defenses [and that] China cannot be excused from this burden by virtue
of its refusal to formally or physically appear”.
79
On 12 July 2016, the Arbitral Tribunal published its Award on the Merits.
80
This
was followed by a response from the Chinese government the next day, and a lot of
73 Ibidem, para. 112.
74 Ibidem, para. 122.
75 Ibidem, para. 119.
76 Ibidem, para. 115. The Arbitral Tribunal also referred to Rule 25 RoP (para. 119).
77 Ibidem, paras. 117 and 118, respectively.
78 See e.g., Pemmaraju (2016), Pinto (2016), Talmon (2016), Tanaka (2016), Tiantian (2016), Yee
(2016), Sheng-ti Gau (2017), and Yu and Xie (2017) and so on. The list is endless.
79 PCA, South China Sea Arbitration, Final Transcript Day 1, Merits Hearing, 24 November 2015,
p. 45.
80 PCA, South China Sea Arbitration, Award on the Merits, 12 July 2016.
O. Spijkers
correspondence from the Tribunal sent by the Registry, explaining on each occasion ‘its
position that it does not accept the arbitration initiated by the Philippines’.
73
On the advice of the Philippines, the Arbitral Tribunal regarded the Chinese
Position Paper as a challenge to its jurisdiction.
74
It referred to the “academic literature by individuals closely associated with Chinese authorities”, but did not explicitly affirm that this could be regarded as reflective of the official Chinese position.
75
The Arbitral Tribunal rejected all arguments developed in that paper. It concluded
that Art. 9 Annex VII LOSC sought “to balance the risks of prejudice that could be
suffered by either party”:
First, it protects participating parties by ensuring that the proceedings will not be frustrated
by the decision of the other party not to participate. Second, it protects the rights of nonparticipating parties by ensuring that a tribunal will not simply accept the claim of the participating party by default. Instead, the Tribunal must satisfy itself that it has jurisdiction
and that the claim is well founded in fact and law.
76
The Tribunal then explained in some detail what it had done to safeguard the
procedural rights of both China and of the Philippines.
77
In the end, the Tribunal
accepted it had jurisdiction to adjudicate the submissions put before it by the
Philippines. This predictably led to a huge amount of publications by Chinese
scholars; these publications were without exception critical of the award.
78
Some of this criticism might be justified. But is China itself not partly to blame?
Is it not unfair that China, by being vague as to the exact qualification of some of its
arguments, basically left it to the Arbitral Tribunal to make China’s claims as strong
and legally persuasive as possible? At various times in its pleadings, the Philippines
protested about such favorable consequences non-appearance might have. This
might motivate States in the future to choose a litigation strategy of non- participation,
because you can just let the arbitrators do the work for you, instead of having to pay
dearly for expensive legal counsel to develop your arguments. These complaints
could also be heard during the hearings on the merits. For example, the delegation
of the Philippines reminded the Tribunal that “it is normally up to the Respondent
State to assert any applicable jurisdictional exclusions under Articles 297 or 298 as
affirmative defenses [and that] China cannot be excused from this burden by virtue
of its refusal to formally or physically appear”.
79
On 12 July 2016, the Arbitral Tribunal published its Award on the Merits.
80
This
was followed by a response from the Chinese government the next day, and a lot of
73 Ibidem, para. 112.
74 Ibidem, para. 122.
75 Ibidem, para. 119.
76 Ibidem, para. 115. The Arbitral Tribunal also referred to Rule 25 RoP (para. 119).
77 Ibidem, paras. 117 and 118, respectively.
78 See e.g., Pemmaraju (2016), Pinto (2016), Talmon (2016), Tanaka (2016), Tiantian (2016), Yee
(2016), Sheng-ti Gau (2017), and Yu and Xie (2017) and so on. The list is endless.
79 PCA, South China Sea Arbitration, Final Transcript Day 1, Merits Hearing, 24 November 2015,
p. 45.
80 PCA, South China Sea Arbitration, Award on the Merits, 12 July 2016.
O. Spijkers