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.