188
historical documents and other evidence that works in favor of the non-participating
State. This happened in the dispute concerning the South China Sea. But the nonparticipating State is much better able to gather such evidence. What is also unfortunate is that the non-participating State refuses to pay its contribution to the costs
of the arbitration, and arbitration is not free. The question remains whether nonparticipation is only an annoying practice, or whether it can also be qualified as in
violation of the principle of good faith. It is to be hoped that Russia and China have
not created a trend of non-participation. If the Arbitral Tribunal had been a bit
tougher on the non-participating State, for instance by concluding that nonparticipation is indeed contrary to the principle of good faith, or by going a bit more
in the direction of pronouncing a kind of default judgment, in which the plaintiff’s
claim is more or less fully adopted, unless this is obviously contrary to the law, then
in the future States would think twice before choosing a litigation strategy of
non-participation.
References
Caddell R (2014) Platforms, protestors and provisional measures: the “Arctic Sunrise” dispute and
environmental activism at sea. Neth Yearb Int Law 45:359–384
Cembrano-Mallan CR (2014) Non-appearance and compliance in the context of the UN Convention
on the Law of the Sea dispute settlement mechanism. Philipp Law J 88:300–341
Chang YC (2016) China’s non-participation approach toward the South China Sea arbitration.
Chin (Taiwan) Yearb Int Law Aff 34:56–72
Chinese Society of International Law (2018) The South China Sea arbitration awards: a critical
study. Chin J Int Law 17:207–748
Franckx E, Benatar M (2017) The South China Sea: an international law perspective. Int J Mar
Coast Law 32:193–197
Gao Z, Jia B (2013) The nine-dash line in the South China Sea: history, status, and implications.
Am J Int Law 107:98–123
Gates D (2017) International law adrift: forum shopping, forum rejection, and the future of maritime dispute resolution. Chic J Int Law 18:287–320
Guilfoyle D, Miles C (2014) Provisional measures and the MV Arctic Sunrise. Am J Int Law
108:271–287
Harrison J (2016) The Arctic Sunrise arbitration (Netherlands v. Russia)– background to the arbitral proceedings. Int J Mar Coast Law 31:145–159
Mossop J (2016) Protest against oil exploration at sea: lessons from the Arctic Sunrise arbitration.
Int J Mar Coast Law 31:60–87
Nordquist M, Nandan S, Rosenne S (2017) United Nations Convention on the Law
of the Sea (Commentary Online). http://referenceworks.brillonline.com/browse/
united-nations-convention-on-the-law-of-the-sea
Oude Elferink A (2014) The “Arctic Sunrise” incident: a multi-faceted law of the sea case with a
human rights dimension. Int J Mar Coast Law 29:244–289
Oude Elferink A (2016a) The Russian Federation and the Arctic Sunrise case: hot pursuit and other
issues under the LOSC. Int Law Stud U S Naval War Coll 92:382–406
Oude Elferink A (2016b) Arguing international law in the South China Sea disputes: the Haiyang
Shiyou 981 and USS Lassen incidents and the Philippines v. China arbitration. Int J Mar Coast
Law 31:205–241
O. Spijkers
historical documents and other evidence that works in favor of the non-participating
State. This happened in the dispute concerning the South China Sea. But the nonparticipating State is much better able to gather such evidence. What is also unfortunate is that the non-participating State refuses to pay its contribution to the costs
of the arbitration, and arbitration is not free. The question remains whether nonparticipation is only an annoying practice, or whether it can also be qualified as in
violation of the principle of good faith. It is to be hoped that Russia and China have
not created a trend of non-participation. If the Arbitral Tribunal had been a bit
tougher on the non-participating State, for instance by concluding that nonparticipation is indeed contrary to the principle of good faith, or by going a bit more
in the direction of pronouncing a kind of default judgment, in which the plaintiff’s
claim is more or less fully adopted, unless this is obviously contrary to the law, then
in the future States would think twice before choosing a litigation strategy of
non-participation.
References
Caddell R (2014) Platforms, protestors and provisional measures: the “Arctic Sunrise” dispute and
environmental activism at sea. Neth Yearb Int Law 45:359–384
Cembrano-Mallan CR (2014) Non-appearance and compliance in the context of the UN Convention
on the Law of the Sea dispute settlement mechanism. Philipp Law J 88:300–341
Chang YC (2016) China’s non-participation approach toward the South China Sea arbitration.
Chin (Taiwan) Yearb Int Law Aff 34:56–72
Chinese Society of International Law (2018) The South China Sea arbitration awards: a critical
study. Chin J Int Law 17:207–748
Franckx E, Benatar M (2017) The South China Sea: an international law perspective. Int J Mar
Coast Law 32:193–197
Gao Z, Jia B (2013) The nine-dash line in the South China Sea: history, status, and implications.
Am J Int Law 107:98–123
Gates D (2017) International law adrift: forum shopping, forum rejection, and the future of maritime dispute resolution. Chic J Int Law 18:287–320
Guilfoyle D, Miles C (2014) Provisional measures and the MV Arctic Sunrise. Am J Int Law
108:271–287
Harrison J (2016) The Arctic Sunrise arbitration (Netherlands v. Russia)– background to the arbitral proceedings. Int J Mar Coast Law 31:145–159
Mossop J (2016) Protest against oil exploration at sea: lessons from the Arctic Sunrise arbitration.
Int J Mar Coast Law 31:60–87
Nordquist M, Nandan S, Rosenne S (2017) United Nations Convention on the Law
of the Sea (Commentary Online). http://referenceworks.brillonline.com/browse/
united-nations-convention-on-the-law-of-the-sea
Oude Elferink A (2014) The “Arctic Sunrise” incident: a multi-faceted law of the sea case with a
human rights dimension. Int J Mar Coast Law 29:244–289
Oude Elferink A (2016a) The Russian Federation and the Arctic Sunrise case: hot pursuit and other
issues under the LOSC. Int Law Stud U S Naval War Coll 92:382–406
Oude Elferink A (2016b) Arguing international law in the South China Sea disputes: the Haiyang
Shiyou 981 and USS Lassen incidents and the Philippines v. China arbitration. Int J Mar Coast
Law 31:205–241
O. Spijkers