185
critical scientific articles, mainly—but certainly not exclusively—in Chinese scientific journals.
81
The list of scholarly articles supporting the position of the Chinese
authorities is endless, and continues to expand to this day, more than 2 years after
the award was issued. Of particular note is a Critical Study, published by the Chinese
Society of International Law.
82
In this very lengthy study, the Society claims to
demonstrate, once and for all, that the Arbitral Tribunal committed so many errors,
that its Awards on Jurisdiction and Merits are both invalid and even threaten to
undermine the international rule of law.
In the Award, the legal consequences of non-participation were discussed once
again. A lengthy chapter was specially devoted to addressing this issue.
83
The
Arbitral Tribunal once again started by describing, in a single paragraph, what nonparticipation came down to in practice.
84
Turning to the law, the Tribunal first noted that Art. 9 of Annex VII LOSC
“expressly acknowledges the possibility of non-participation by one of the parties to
a dispute and confirms that such non-participation does not constitute a bar to the
proceedings”.
85
It is thus a regrettable, but not a prohibited litigation strategy. The
Arbitral Tribunal had to allow China’s non-participation, at the same time emphasizing that “despite its non-appearance, China remains a party to the arbitration,
with the ensuing rights and obligations, including that it will be bound under international law by any decision of the Tribunal”.
86
Similar to what it had done already in the award on jurisdiction, the Tribunal
explained in some detail what it had done to ensure a balance of the rights of both
parties, as Art. 9 Annex VII prescribed.
87
As disadvantages of non-participation, the
Tribunal referred to (1) unnecessary delays and expenses
88
; (2) lack of an opportunity for the Philippines to provide further evidence or argumentation to strengthen
its arguments when particularly challenged
89
; and (3) the fact that the Philippines
had to guess what arguments China might have put forward if it had decided to take
part.
90
The Arbitral Tribunal often requested the Philippines to provide further evidence or clarification in an attempt to mitigate the second disadvantage. And it
referred to the Chinese Position Paper, and the many statements made by Chinese
authorities over the course of the proceedings, which were used both by the
Philippines and the Arbitral Tribunal itself as reflective of the Chinese position, as
way to mitigate the third disadvantage.
81 See e.g., Oude Elferink (2016b), Sofaer (2016), Whomersley (2016), and Talmon (2017).
82 Chinese Society of International Law (2018).
83 PCA, South China Sea Arbitration, Award on the Merits, paras. 116–144.
84 Ibidem, para. 116.
85 Ibidem, para. 117.
86 Ibidem, para. 118.
87 Ibidem, paras. 121 (China), and 122–128 (Philippines).
88 Ibidem, para. 123.
89 Ibidem, paras. 124–125.
90 Ibidem, paras. 126–128.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
critical scientific articles, mainly—but certainly not exclusively—in Chinese scientific journals.
81
The list of scholarly articles supporting the position of the Chinese
authorities is endless, and continues to expand to this day, more than 2 years after
the award was issued. Of particular note is a Critical Study, published by the Chinese
Society of International Law.
82
In this very lengthy study, the Society claims to
demonstrate, once and for all, that the Arbitral Tribunal committed so many errors,
that its Awards on Jurisdiction and Merits are both invalid and even threaten to
undermine the international rule of law.
In the Award, the legal consequences of non-participation were discussed once
again. A lengthy chapter was specially devoted to addressing this issue.
83
The
Arbitral Tribunal once again started by describing, in a single paragraph, what nonparticipation came down to in practice.
84
Turning to the law, the Tribunal first noted that Art. 9 of Annex VII LOSC
“expressly acknowledges the possibility of non-participation by one of the parties to
a dispute and confirms that such non-participation does not constitute a bar to the
proceedings”.
85
It is thus a regrettable, but not a prohibited litigation strategy. The
Arbitral Tribunal had to allow China’s non-participation, at the same time emphasizing that “despite its non-appearance, China remains a party to the arbitration,
with the ensuing rights and obligations, including that it will be bound under international law by any decision of the Tribunal”.
86
Similar to what it had done already in the award on jurisdiction, the Tribunal
explained in some detail what it had done to ensure a balance of the rights of both
parties, as Art. 9 Annex VII prescribed.
87
As disadvantages of non-participation, the
Tribunal referred to (1) unnecessary delays and expenses
88
; (2) lack of an opportunity for the Philippines to provide further evidence or argumentation to strengthen
its arguments when particularly challenged
89
; and (3) the fact that the Philippines
had to guess what arguments China might have put forward if it had decided to take
part.
90
The Arbitral Tribunal often requested the Philippines to provide further evidence or clarification in an attempt to mitigate the second disadvantage. And it
referred to the Chinese Position Paper, and the many statements made by Chinese
authorities over the course of the proceedings, which were used both by the
Philippines and the Arbitral Tribunal itself as reflective of the Chinese position, as
way to mitigate the third disadvantage.
81 See e.g., Oude Elferink (2016b), Sofaer (2016), Whomersley (2016), and Talmon (2017).
82 Chinese Society of International Law (2018).
83 PCA, South China Sea Arbitration, Award on the Merits, paras. 116–144.
84 Ibidem, para. 116.
85 Ibidem, para. 117.
86 Ibidem, para. 118.
87 Ibidem, paras. 121 (China), and 122–128 (Philippines).
88 Ibidem, para. 123.
89 Ibidem, paras. 124–125.
90 Ibidem, paras. 126–128.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…