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Intervention in the Case by Other States

In contrast to cases heard by ITLOS or the ICJ, there is no procedure for intervention by a third state party to UNCLOS in cases before an arbitral tribunal under Annex VII. Generally speaking, no right of intervention exists in relation to arbitrations, which is ultimately founded upon the consent of the parties. Accordingly, no State may intervene in the proceedings without the consent of the parties to the dispute (Collier et al., 1999: pp. 208-209).

Settlement of the Case

The parties to a dispute governed by Part XV of UNCLOS can agree to settle the case through negotiations before the arbitration actually begins, or any time thereafter (Art. 280, UNCLOS). Therefore, China has several months to attempt to negotiate with the Philippines to agree to settle the dispute before the Tribunal makes a decision.

Philippines Could Request Provisional Measures

In the final paragraph of its Statement of Claim, the Philippines expressly reserved the right to preserve its rights under UNCLOS, including the right to make a request for Provisional Measures.12 If China responds to the Philippines' claim by taking action to assert its rights in a manner contrary to the rights of the Philippines, the Philippines could seek a remedy by way of Provisional Measures from ITLOS or the Tribunal to preserve its rights, pending the final decision of the Tribunal.

If the Philippines had decided to request Provisional Measures in order to preserve its rights prior to the arbitral tribunal being established, it could have requested Provisional Measures from ITLOS (Art. 290(5), UNCLOS). Once the arbitral tribunal is established, any request for Provisional Measures must be made to the arbitral tribunal.

Before granting Provisional Measures, the court or tribunal must first establish that it prima facie has jurisdiction under Part XV of UNCLOS and that the urgency of the situation so requires the granting of the measures.

 
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