Arbitrating Law of the Sea Disputes

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From the course by Universiteit Leiden

International Law in Action: the Arbitration of International Disputes

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Universiteit Leiden

International Law in Action: the Arbitration of International Disputes

212 ratings

‘The Arbitration of International Disputes’ is the third course of Leiden University’s series on International Law in Action. The first course covered generalities on the international courts and tribunals in The Hague, while the second course provided an insider's perspective into the work of international criminal courts and tribunals. This third course explores the major aspects of international arbitration as one of the most common method of international dispute settlement . Through this course you will gain an in-depth understanding of the various facets of international arbitration through the analysis of its role as a mechanism of dispute settlement, its institutions, the fields of law it is applicable to, and, of course, its most famous awards. The main question we will answer together during this course is "Can international arbitration contribute to the creation of a peaceful world through the settlement of disputes between States and between States and non-State actors?" In order to do so, we will learn the basic historical concepts or arbitration, as well as everything there is to know about the Permanent Court of Arbitration, based in The Hague. We will then dive into the role of international arbitration in settling disputes relating to the Law of the Sea, with a particular insight into the landmark South China Sea Arbitration. For an entire module, we will focus on investment arbitration, its principles and the procedure of the ICSID, the International Centre for Settlement of Investment Disputes. We will conclude the course with a module on the interplay between state immunity and enforcement of arbitral awards. This is brought to light through the Yukos Arbitration which is a perfect illustration of the topic. This course offers you an opportunity to gain a better insight into international arbitration, its role and the current issues relating to it. You will gain in-depth knowledge of the principles and rules of arbitration. You will explore the topic through concrete examples and the most prominent arbitrations. You will also grasp the notion of international arbitration navigating between law and politics. International arbitration and The Hague go hand in hand: several key arbitration institutes are located in The Hague and important disputes were settled here through arbitration. The Hague is, so to speak, ‘the place to be for international arbitration’, especially when we are dealing with arbitration between States, or arbitration of investment disputes between foreign investors and States. Join us for the course and become an expert on international arbitration! This course is free to join and to participate in. There is the possibility to get a verified certificate for the course, which is a paid option. If you want a certificate, but are unable to pay for it, you can request financial aid via Coursera.

From the lesson

Arbitration and the Law of the Sea

This week will explore the role of international arbitration in settling disputes between States under the 1982 Law of the Sea Convention (UNCLOS). Why do States choose arbitration to settle their disputes regarding the law of the sea? To answer this question, we will study how arbitration fits into the complex dispute settlement architecture of UNCLOS, and discuss the option given to States parties to choose either arbitration or settlement through adjudication before the International Court of Justice or the International Tribunal for the Law of the Sea. We will conclude this week with an analysis of the famous dispute between the Philippines and China in relation to the parties' maritime entitlements in the South China Sea. Through this case, you will learn how arbitration navigates between law and politics.

Introduction5:08

The Dispute Settlement Architecture of the Law of the Sea Convention7:57

Arbitrating Law of the Sea Disputes7:39

Why do states choose arbitration over adjudication?6:29

The South China Sea Arbitration8:05

Meet the Instructors

Eric De Brabandere
Prof. Dr.
Grotius Centre for International Legal Studies
Giulia Pinzauti
Dr.
Grotius Centre for International Legal Studies

Welcome back, so far we've talked about the dispute settlement procedures and

they're UNCLOS generally.

In this video, we'll look more specifically at

how states can settle disputes regarding the oceans through arbitration.

UNCLOS provides for two types of arbitration, an arbitral tribunal

constituted in accordance with Annex VII to the convention.

And a special arbitral tribunal for

certain types of disputes which are set out in Annex VIII.

Both procedures can be initiated unilaterally.

We will discuss the subject matter jurisdiction of these tribunals and

the main aspects of their procedure.

Let's start with special arbitration under Annex VIII.

The disputes amenable to special arbitration are those relating to

fisheries, the protection and preservation of the marine environment,

marine scientific research and navigation, including pollution.

To deal with such technical issues, the tribunal is composed of experts.

The other distinguishing feature is that its function is not limited to

adjudication, but can be broadened to include fact-finding and conciliation.

State parties to UNCLOS can indicate their preferred method of dispute

settlement under Article 287 of the Convention.

But so far, only 11 states have selected Annex VIII

arbitration as one of their preferred means of settlement.

So the chances of a dispute being referred to special arbitration are rather small.

In contrast, Annex VII arbitration is a lot more common because it is

the default choice of procedure.

This means that when the parties to a dispute have chosen different procedures

as their preferred method of settlement or have not made a choice at all,

the dispute will be dealt with by an Annex VII arbitral tribunal.

Annex VII details the procedure to be followed for the constitution and

the operation of the arbitral tribunal.

Unless the parties agree otherwise, a tribunal is composed of five members.

Each of the parties can appoint a member, and

the other three members are chosen by agreement.

What can happen in practice is that a party to the dispute

does not cooperate in the constitution of the arbitral tribunal.

Or that the parties cannot reach agreement

on the appointment of the neutral members of the tribunal.

So in these cases, a third state chosen by the parties or the president of

the International Tribunal for the Law of Sea will make the necessary appointments.

The tribunal determines its own procedure.

But the parties to the dispute can, of course,

agree otherwise in keeping with the principle of party autonomy.

Failure of a party to appear before the tribunal or

to defend its case doesn't hinder the proceedings.

In fact, the tribunal can deliver its award even in case of default of

one party, but must satisfy itself that it has jurisdiction and

that the claim is well founded in fact and in law.

For example, this is what happened in the South China Sea arbitration,

where China failed to participate in the proceedings.

As you know from the previous module,

the arbitral award is binding on the parties, it is final and without appeal.

A peculiar feature of Annex VII arbitration is that if the parties

disagree on the interpretation or the implementation of an award, they can

submit the matter for decision to the arbitral tribunal they rendered the award.

In practice, the jurisdiction of an Annex VII tribunal is often been challenged.

It is instructive to look at the example of the Southern Bluefin Tuna Arbitration,

because it illustrates the limits of compulsory arbitration under UNCLOS.

In this case, Japan challenged the jurisdiction of the arbitral tribunal

on the ground that the dispute concerned the interpretation and

application of the Convention for the Conservation of Southern Bluefin Tuna or

CCSBT and not UNCLOS.

Japan also argued that the parties to the CCSBT agreed to dispute settlement

means of their own choice, which are set out in Article 16 of the Convention.

According to Japan,

this provision excluded recourse to the binding procedure under Part 15 UNCLOS.

The tribunal held that the disputer was under both the CCSBT and UNCLOS.

State parties to the CCSBT had

agreed to settle their dispute by peaceful means of their own choice.

Therefore, Article 281 of UNCLOS applied.

The parties hadn't reach a settlement, but

the tribunal concluded that it lacked jurisdiction because the CCSBT

excluded any further procedure under Part XV UNCLOS.

The tribunal's interpretation is controversial because in Article XVI,

CCSBT, there is no express exclusion of the composite procedures of UNCLOS.

The tribunal held that this express exclusion was unnecessary and

read an implicit exclusion into the text.

What's more, the tribunal inferred from the text of one treaty,

the CCSBT intention to remove disputes arising under UNCLOS,

a different treaty, for compulsory arbitration or adjudication.

What do you think about this?

At the end of this video,

you can share your thoughts with other participants in the forum and

we will come back to this issue when discussing the South China Sea award.

In summary, arbitration is an important means for

the peaceful settlement of disputes arising under UNCLOS.

But a dispute over their oceans may turn on the interpretation or

application of another treaty in addition to UNCLOS.

And this treaty may have its own dispute settlement provisions,

as we've seen with the Southern Bluefin Tuna arbitration.

Or the parties to the dispute may agree on means of settlement of their own choice

consistently with the principle of free choice of means.

How do you determine if a dispute is amenable to arbitration?

Here is a simple checklist that you can use as a starting point.

Something you need to check is whether the subject matter of the dispute falls within

one of the exceptions to compulsory jurisdiction in Section 3 of Part XV.

You also need to check the choice of procedure expressed by the parties.

Whether the parties satisfied the obligation to exchange views

pursuant to Article 283 UNCLOS.

And finally, see if the parties agreed

to seek settlement through means of their own choosing.

If that's the case,

remember that compulsory arbitration under UNCLOS is a residual procedural.

Therefore, it is only available if the parties exhausted attempts

at dispute settlement under the agreement.

And if the agreement between the parties does not exclude recourse to

arbitration under Part XV UNCLOS.

Now, take your time for the activity, and I'll see you for the next video.

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