11 China’s Theory and Practice on Maritime Dispute Resolution
217
Therefore, the exchange of views after the dispute arising does not represent fulfilling
all obligations of exchange of views in the dispute settlement process. In addition,
in a case where multiple claims are involved, parties to a dispute shall ensure that
their exchange of views covers all disputes, not just cover parts of disputes or in
general terms. For example, in the defense of Singapore in “Malaysia v. Singapore”,
Singapore summarized four steps for the application of article 283 by indicating
“third, at a certain point a party is entitled to determine, subject to review by the relevant dispute settlement body, that the possibilities of reaching agreement have been
exhausted, whereupon it may go to the appropriate form of third party mechanism
under UNCLOS; fourth, the relevant dispute settlement body determines whether the
requirements of Article 283(1) have been met, and if it determines that they have not,
it orders the parties to pursue further their obligations under the provision and does
not permit the proceedings to continue, pending demonstration that the obligation of
exchange of views has been fulfilled.”
59
Exchange of views shall be performed in good faith
In the “Southern Bluefin Tuna” case, Japan argued that Australia and New Zealand
had not exhausted the provisions of section 1 of Part 15 of UNCLOS, but the tribunal
determined that they had exhausted the provisions of section 1 based on the consultations and negotiations made by Australia and New Zealand.
60 When the parties to
a dispute have exhausted the possibility of seeking a dispute settlement, they are no
longer liable for their obligations under section 1, Part 15 of UNCLOS.
61 Such decisions of the tribunal clarify the status of section I, Part 15 of UNCLOS, including
the obligation to exchange views, and emphasize the importance of fulfilling that
obligation in good faith and actively. Exchanging views in good faith is a necessary
process of dispute settlement. In Southern Bluefin Tuna case, it was Australia and
New Zealand’s sincere performance of the negotiation and consultation obligation
that made the ITLOS decide the two States had correctly performed their obligations
under the UNCLOS.
62
Under certain circumstances,
63 one party maliciously impedes the exchange of
views or refuses to do so, resulting in the other party having reasons to believe that
even if all possible means are exhausted, it is impossible for the first party to continue
performing its obligation of exchange of views or to settle dispute by negotiation,
59 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Response of Singapore, p. 23. para. 68.
60 See Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Award on Jurisdiction and
Admissibility, Decision of 4 August 2000, Reports of International Arbitral Awards, 2000, Vol. 23,
para. 55.
61 See Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures,
Order of 27 August 1999, ITLOS Reports 1999, paras. 33, 60.
62 See Ibid., paras. 57–59.
63 For example, of an unjustified breaking off of the discussions, abnormal delay, disregard of the
agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and,
more generally, in cases of violation of the rules of good faith. See The Lac Lanoux Arbitration
(France v. Spain), International Law Report 24, 1957, p. 128.
217
Therefore, the exchange of views after the dispute arising does not represent fulfilling
all obligations of exchange of views in the dispute settlement process. In addition,
in a case where multiple claims are involved, parties to a dispute shall ensure that
their exchange of views covers all disputes, not just cover parts of disputes or in
general terms. For example, in the defense of Singapore in “Malaysia v. Singapore”,
Singapore summarized four steps for the application of article 283 by indicating
“third, at a certain point a party is entitled to determine, subject to review by the relevant dispute settlement body, that the possibilities of reaching agreement have been
exhausted, whereupon it may go to the appropriate form of third party mechanism
under UNCLOS; fourth, the relevant dispute settlement body determines whether the
requirements of Article 283(1) have been met, and if it determines that they have not,
it orders the parties to pursue further their obligations under the provision and does
not permit the proceedings to continue, pending demonstration that the obligation of
exchange of views has been fulfilled.”
59
Exchange of views shall be performed in good faith
In the “Southern Bluefin Tuna” case, Japan argued that Australia and New Zealand
had not exhausted the provisions of section 1 of Part 15 of UNCLOS, but the tribunal
determined that they had exhausted the provisions of section 1 based on the consultations and negotiations made by Australia and New Zealand.
60 When the parties to
a dispute have exhausted the possibility of seeking a dispute settlement, they are no
longer liable for their obligations under section 1, Part 15 of UNCLOS.
61 Such decisions of the tribunal clarify the status of section I, Part 15 of UNCLOS, including
the obligation to exchange views, and emphasize the importance of fulfilling that
obligation in good faith and actively. Exchanging views in good faith is a necessary
process of dispute settlement. In Southern Bluefin Tuna case, it was Australia and
New Zealand’s sincere performance of the negotiation and consultation obligation
that made the ITLOS decide the two States had correctly performed their obligations
under the UNCLOS.
62
Under certain circumstances,
63 one party maliciously impedes the exchange of
views or refuses to do so, resulting in the other party having reasons to believe that
even if all possible means are exhausted, it is impossible for the first party to continue
performing its obligation of exchange of views or to settle dispute by negotiation,
59 See Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Response of Singapore, p. 23. para. 68.
60 See Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Award on Jurisdiction and
Admissibility, Decision of 4 August 2000, Reports of International Arbitral Awards, 2000, Vol. 23,
para. 55.
61 See Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures,
Order of 27 August 1999, ITLOS Reports 1999, paras. 33, 60.
62 See Ibid., paras. 57–59.
63 For example, of an unjustified breaking off of the discussions, abnormal delay, disregard of the
agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and,
more generally, in cases of violation of the rules of good faith. See The Lac Lanoux Arbitration
(France v. Spain), International Law Report 24, 1957, p. 128.