187
evidence, but you cannot expect it to produce evidence that clearly refutes its own
argumentation. The Tribunal never asked it to do so.
To summarize, this is what had happened:
In line with its duties under Annex VII to the Convention, in the circumstances of China’s
non-participation, the Tribunal has taken steps to ensure procedural fairness to both Parties
without compromising the efficiency of the proceedings. The Tribunal has also taken steps
to ascertain China’s position on the issues for decision, based on statements made by
Chinese officials publicly and in communications to the members of the Tribunal. In addition to its thorough review of the materials placed before it by the Philippines, the Tribunal
has also taken steps to satisfy itself of its jurisdiction and the legal and factual foundations
of the Philippines’ claims through obtaining independent expert input, reviewing other
materials in the public domain, and inviting further comments from the Parties on those
sources.
100
This led the Arbitral Tribunal to basically agree with all submissions put forward
by the Philippines. China lost on all counts. This should, of course, be taken into
consideration when States consider using the litigation strategy of non-participation
in the future. So far—looking at the Arctic Sunrise and South China Sea arbitrations—it has only led to a complete defeat by the non-appearing State.
5 Comparing the Two Cases
The basic rule is that the participating State cannot be disadvantaged by the nonparticipation of its opponent. This means that the dispute settlement mechanism
must do its utmost to avoid unnecessary costs and delays in the procedure. The
participating State must also be given the opportunity to respond to arguments that
the non-participating State could have put forward. This is a difficult task, because
one can only guess what the legal argumentation could be of a non-participating
State. The dispute settlement mechanism must ensure fair litigation. Pursuant to this
goal, the Arbitral Tribunal therefore sent all procedural documents to the nonparticipating State on an ongoing basis. The non-appearing State was kept constantly informed of all developments in the procedure, and was invited again and
again to take part in the procedure. The dispute resolution mechanism must also
resist the temptation to simply take over the arguments of the participating state. It
must constantly realize that it lacks a proper treatment of the non-participating
State’s argumentation, and that it must therefore actively seek out facts and legal
arguments that can support the position of the non-participating State. That the participating State indicates its willingness to assist the Tribunal in this formidable task
is of course sympathetic, but one can wonder how earnest the efforts will be of the
lawyers of the participating State to undermine their own argumentation. The dispute settlement mechanism can, of course, call in experts of its own, and subject the
experts of the participating party to a critical cross-examination. It can also look for
100 Ibidem, para. 144.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…
evidence, but you cannot expect it to produce evidence that clearly refutes its own
argumentation. The Tribunal never asked it to do so.
To summarize, this is what had happened:
In line with its duties under Annex VII to the Convention, in the circumstances of China’s
non-participation, the Tribunal has taken steps to ensure procedural fairness to both Parties
without compromising the efficiency of the proceedings. The Tribunal has also taken steps
to ascertain China’s position on the issues for decision, based on statements made by
Chinese officials publicly and in communications to the members of the Tribunal. In addition to its thorough review of the materials placed before it by the Philippines, the Tribunal
has also taken steps to satisfy itself of its jurisdiction and the legal and factual foundations
of the Philippines’ claims through obtaining independent expert input, reviewing other
materials in the public domain, and inviting further comments from the Parties on those
sources.
100
This led the Arbitral Tribunal to basically agree with all submissions put forward
by the Philippines. China lost on all counts. This should, of course, be taken into
consideration when States consider using the litigation strategy of non-participation
in the future. So far—looking at the Arctic Sunrise and South China Sea arbitrations—it has only led to a complete defeat by the non-appearing State.
5 Comparing the Two Cases
The basic rule is that the participating State cannot be disadvantaged by the nonparticipation of its opponent. This means that the dispute settlement mechanism
must do its utmost to avoid unnecessary costs and delays in the procedure. The
participating State must also be given the opportunity to respond to arguments that
the non-participating State could have put forward. This is a difficult task, because
one can only guess what the legal argumentation could be of a non-participating
State. The dispute settlement mechanism must ensure fair litigation. Pursuant to this
goal, the Arbitral Tribunal therefore sent all procedural documents to the nonparticipating State on an ongoing basis. The non-appearing State was kept constantly informed of all developments in the procedure, and was invited again and
again to take part in the procedure. The dispute resolution mechanism must also
resist the temptation to simply take over the arguments of the participating state. It
must constantly realize that it lacks a proper treatment of the non-participating
State’s argumentation, and that it must therefore actively seek out facts and legal
arguments that can support the position of the non-participating State. That the participating State indicates its willingness to assist the Tribunal in this formidable task
is of course sympathetic, but one can wonder how earnest the efforts will be of the
lawyers of the participating State to undermine their own argumentation. The dispute settlement mechanism can, of course, call in experts of its own, and subject the
experts of the participating party to a critical cross-examination. It can also look for
100 Ibidem, para. 144.
Non-participation in Arbitral Proceedings Under Annex VII United Nations Convention…