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Procedural Issues

Effect of China's Failure to Participate in the Arbitration

When the Philippines instituted proceedings on 22 January 2013 by giving the necessary Notification to China, it also nominated Judge Rudiger Wolfrum of Germany as one of the five arbitrators to hear the case. China had 30 days from the date of this notification to nominate one arbitrator. However, on 19 February 2013, just before the 30 days were up, China announced that it had rejected and returned the Philippines' Notification, thus indicating that it did not intend to participate in the arbitral proceedings.

In accordance with Article 3 of Annex VII to UNCLOS, the Philippines then requested the president of ITLOS, Judge Yanai of Japan, to appoint an arbitrator on behalf of China. The remaining three arbitrators were to be appointed by agreement between the Philippines and China, within 60 days from the date of the Philippines' Notification of Claim, failing which the remaining three arbitrators were to be appointed by the President of ITLOS.

Article 3 of Annex VII to UNCLOS requires that any arbitrators appointed by the president of ITLOS must be selected from persons on the UN List of Arbitrators (Art. 3(c), (d), and (e), Annex VII, UNCLOS). The UN List consists of the persons nominated by States Parties to UNCLOS.10 Annex VII also provides that the President of ITLOS must nominate one of the three arbitrators he selects to serve as the president of the Tribunal. The Tribunal will then be constituted and it will determine its Rules of Procedure.

Because China failed to participate in the proceedings and the 60-day period had expired, Judge Yanai appointed Stanislaw Pawlak, the ITLOS

Judge from Poland, to serve as an arbitrator on behalf of China. On 24 March 2013, Judge Yanai appointed the remaining three arbitrators - Jean-Pierre Cot (ITLOS Judge from France), Thomas Mensah (Ghana), and Alfred Soons (the Netherlands). The president appointed Thomas Mensah as president of the arbitral tribunal (ITLOS, 2013). The case is being administered by the Permanent Court of Arbitration at The Hague. Rules of Procedure for the case were issued by the Tribunal on 31 August 2013. The Philippines submitted its formal written proceedings on 30 March 2014, which was the deadline set by the Tribunal.

The fact that China is refusing to participate in the proceedings will not stop the arbitral proceedings from going ahead. If China fails to appear to defend the case, the Philippines may request the Tribunal to continue with the hearing and make an Award.11 The absence of one of the parties to the dispute or the failure of a party to the dispute to defend the case is not a bar to the proceedings. Before making the Award in the absence of a party to the dispute, the arbitral tribunal must satisfy itself that: (1) it has jurisdiction; and (2) the claim is well founded in fact and law (Art. 9, Annex VII, UNCLOS).

The Philippines has attempted to craft its Statement of Claim so that it raises disputes on the interpretation and application of provisions of UNCLOS other than those on the delimitation of maritime boundaries and territorial sovereignty. Nevertheless, the Tribunal could hold that it has no jurisdiction over some of the issues raised in the Statement of Claim of the Philippines because they are inextricably linked to issues of sovereignty and maritime boundary delimitation. There is a good chance, however, that the Tribunal will decide that it has jurisdiction over at least some of the issues raised in the Philippines' Statement of Claim and will proceed to hear the case.

In addition, if the Tribunal issues an Award, it will be legally binding on both China and the Philippines (Art. 11, Annex VII, UNCLOS). If China fails to implement the Award, or takes action contrary to it, the Philippines has the right to return to the same Tribunal and request further orders regarding the implementation of the Award (Art. 12, Annex VII, UNCLOS). This could be a potential source of embarrassment for China.

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