186
Three arguments developed in the Chinese Position Paper are of particular interest. First, China claimed that “not accepting or participating in arbitral proceedings
is a right enjoyed by a sovereign State”.
91
It is clear that the Arbitral Tribunal interpreted this as saying that China considered non-participation in the arbitration to be
“its lawful right under the Convention”.
92
From a letter written by the Chinese
Ambassador in The Hague, the Tribunal equally concluded that China believed to
have a “legitimate right” under the LOSC not to “accept any imposed solution or
any unilateral resorting to a third-party settlement,” a right that the Philippines had
supposedly breached by initiating the arbitration.
93
Is there really a right not to participate, and if so, what does that right entail exactly? Second, initiation of the proceedings by the Philippines was regarded as an “abuse” of the compulsory arbitration
procedures.
94
And third, China seemed to distinguish between (1) contesting the
jurisdiction of the Tribunal, (2) non-acceptance of the arbitration and the award
issued as a result of it, and (3) non-participation in the arbitration.
95
The Tribunal did
not really address the first and third of these arguments in great depth. Instead, it
simply applied Art. 9 Annex VII LOSC to the present dispute.
The Tribunal emphasized that Art. 9 Annex VII makes clear that “there is no
system of default judgment under the Convention” and thus “the Tribunal does not
simply adopt the Philippines’ arguments or accept its assertions untested”.
96
At the
same time, Art. 9 of Annex VII LOSC “does not operate to change the burden of
proof or to raise or lower the standard of proof normally expected of a party to make
out its claims or defenses”.
97
In other words, the non-participation of China should
not have as consequence that the Arbitral Tribunal takes over all submissions put
forward by the Philippines. But it should also not have the consequence that the
Philippines now have to provide much more evidence and clarifications, because
their arguments are now contested by the Tribunal itself, as opposed to respondent
State China. However, as the Arbitral Tribunal seemed to acknowledge, in a way
this is exactly what happened. The Tribunal constantly asked the Philippines to
produce more evidence, to provide more witnesses, to give more elaborate
argumentation, etc.
98
The Tribunal even appointed additional experts and undertook
additional archival research itself!
99
This does give the impression that nonparticipation pays off: you can simply let the applicant State, together with the
Arbitral Tribunal, do all the work for you! Of course, that is not entirely true. The
applicant might, at the request of the Tribunal, uncover lots of additional facts and
91 Ibidem, para. 127.
92 Ibidem, para. 11.
93 Ibidem, para. 51.
94 Ibidem, para. 127.
95 Ibidem, para. 61. See also para. 54.
96 Ibidem, para. 129.
97 Ibidem, para. 131.
98 Ibidem, paras. 131–142.
99 Ibidem.
O. Spijkers
Three arguments developed in the Chinese Position Paper are of particular interest. First, China claimed that “not accepting or participating in arbitral proceedings
is a right enjoyed by a sovereign State”.
91
It is clear that the Arbitral Tribunal interpreted this as saying that China considered non-participation in the arbitration to be
“its lawful right under the Convention”.
92
From a letter written by the Chinese
Ambassador in The Hague, the Tribunal equally concluded that China believed to
have a “legitimate right” under the LOSC not to “accept any imposed solution or
any unilateral resorting to a third-party settlement,” a right that the Philippines had
supposedly breached by initiating the arbitration.
93
Is there really a right not to participate, and if so, what does that right entail exactly? Second, initiation of the proceedings by the Philippines was regarded as an “abuse” of the compulsory arbitration
procedures.
94
And third, China seemed to distinguish between (1) contesting the
jurisdiction of the Tribunal, (2) non-acceptance of the arbitration and the award
issued as a result of it, and (3) non-participation in the arbitration.
95
The Tribunal did
not really address the first and third of these arguments in great depth. Instead, it
simply applied Art. 9 Annex VII LOSC to the present dispute.
The Tribunal emphasized that Art. 9 Annex VII makes clear that “there is no
system of default judgment under the Convention” and thus “the Tribunal does not
simply adopt the Philippines’ arguments or accept its assertions untested”.
96
At the
same time, Art. 9 of Annex VII LOSC “does not operate to change the burden of
proof or to raise or lower the standard of proof normally expected of a party to make
out its claims or defenses”.
97
In other words, the non-participation of China should
not have as consequence that the Arbitral Tribunal takes over all submissions put
forward by the Philippines. But it should also not have the consequence that the
Philippines now have to provide much more evidence and clarifications, because
their arguments are now contested by the Tribunal itself, as opposed to respondent
State China. However, as the Arbitral Tribunal seemed to acknowledge, in a way
this is exactly what happened. The Tribunal constantly asked the Philippines to
produce more evidence, to provide more witnesses, to give more elaborate
argumentation, etc.
98
The Tribunal even appointed additional experts and undertook
additional archival research itself!
99
This does give the impression that nonparticipation pays off: you can simply let the applicant State, together with the
Arbitral Tribunal, do all the work for you! Of course, that is not entirely true. The
applicant might, at the request of the Tribunal, uncover lots of additional facts and
91 Ibidem, para. 127.
92 Ibidem, para. 11.
93 Ibidem, para. 51.
94 Ibidem, para. 127.
95 Ibidem, para. 61. See also para. 54.
96 Ibidem, para. 129.
97 Ibidem, para. 131.
98 Ibidem, paras. 131–142.
99 Ibidem.
O. Spijkers