Mandatory arbitration mechanism for settlement of maritime dispute: discussion on strategy selection by China in case of arbitration on the South China Sea

WANG Jiwen1

(1.Law School in Jiangxi University of Finance and Economics, Nanchang, China 330013)

【Abstract】A special mandatory arbitration which declares that the arbitral tribunal can exercise jurisdiction without the common consent of the parties is stipulated in the United Nations Convention on the Law of the Sea in order to settle maritime disputes rapidly and reasonably. This arbitration is obviously not consistent with the nature of the arbitration, which is contractuality and autonomy,or the optional basis of international judicial jurisdiction. Regardless of strong objection from China,the Philippines files the dispute about the South China Sea to the International Tribunal for the Law of the Sea Convention in order to initial mandatory arbitration procedure, which is in the process of without control for China or the Philippines at present. The reasonable strategy selection of five aspects, therefore, must be chosen by China, which include investigation on validity of claims from the Philippines, rational use of the international laws and rules, collection and publication of relative evidences, clarification in the whole world about sovereignty situation of the South China Sea, and scientific and rigorous demonstration on feasibility of special appearance in court, in order to protect properly the national interest of China.

【Keywords】 international mandatory arbitration; case of arbitration on South China Sea; strategy selection;

【DOI】

【Funds】 Government-Sponsored Overseas Study Program of Jiangxi University of Finance and Economics

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(Translated by Fanyi 2)

    Footnote

    [1]. 1 That is, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, usually called the New York Convention 1958. [^Back]

    [2]. 1 That is, to choose one of four organs to settle the maritime disputes between contracting parties: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII and a special arbitral tribunal. [^Back]

    [3]. 1 Article 11 of Annex VII of the Law of the Sea Convention stipulates that the award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute. [^Back]

    [4]. 2 Some proposed that if the arbitral tribunal renders an award unfavorable to China, China may consider withdrawing from the Law of the Sea Convention. Though from the level of operation, withdrawing from the Convention is not impossible, the more important issue now is how to provide a reasonable response. Moreover, it is doubtful whether the proposal has carefully considered and weighed the costs and price for withdrawing from the Convention. [^Back]

    [5]. 1 For a detailed list of the 13 claims, see Li, W. (trans.) Journal of Henan University of Economics and Law (河南财经政法大学学报), (4) (2014). [^Back]

    [6]. 2 This is mainly based on the consideration of China’s rejection of the arbitral tribunal, which means that China may not make a rejoinder to the arbitral tribunal through normal channels so it can objectively understand the full picture of the incident. [^Back]

    [7]. 3 For example, Mao, J. Law Review (法学评论), (2) (2014); Wang, Y. Political Science and Law (政治与法律), (1) (2014); Xing, G. Journal of International Relations (国际关系研究), (6) (2013). [^Back]

    [8]. 4 The first claim requests that the arbitral tribunal declares that the rights of China and the Philippines in the South China Sea are all established on the Law of the Sea Convention. [^Back]

    [9]. 5 The tenth claim requests that the arbitral tribunal declares that the Philippines enjoys a territorial sea of 12 nautical miles, an exclusive economic zone of 200 nautical miles and continental shelf. [^Back]

    [10]. 6 On August 25, 2006, China submitted a statement to the Secretary General of the United Nations pursuant to Article 298 of the Law of the Sea Convention: “The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b) and (c) of Article 298 of the Convention.” [^Back]

    [11]. 1 The nature of such a “tribute” system under the current international law may be still subject to question. But this clearly indicates that the relationship between China and these states are not one of sovereign equality. [^Back]

    [12]. 2 Here it refers exclusively to the relationship between Southeast Asian states and between China and these states. [^Back]

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This Article

ISSN:1008-6099

CN: 44-1124/D

Vol , No. 04, Pages 38-45+60

August 2015

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Article Outline

Abstract

  • Introduction
  • 1 The mandatory arbitration in maritime disputes
  • 2 The strategic choice of China in the South China Sea mandatory arbitration incident
  • Conclusion
  • Footnote