The Arbitral Tribunal Sets Dates for Hearing on Jurisdiction and Admissibility

The Arbitral Tribunal in the case submitted by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea has issued its fourth Procedural Order, deciding to conduct a hearing in July 2015 on the Arbitral Tribunal’s jurisdiction. This follows the third meeting of the Arbitral Tribunal, held at the premises of the Permanent Court of Arbitration in the Peace Palace in The Hague on 20 and 21 April 2015.

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As the Arbitral Tribunal has previously noted, the Chinese Government has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” Article 9 of Annex VII to the United Nations Convention on the Law of the Sea provides for proceedings to continue if “one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case.” Article 9 further provides that in the event of a non-participating Party, “[b]efore making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

In December 2014, China published a “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines” in which it set out China’s view that the Arbitral Tribunal lacks jurisdiction to consider the Philippines’ submissions. China has made it clear that the “aforementioned Position Paper shall not be regarded as China’s acceptance of or its participation in the arbitration.”