The Legal Dimension
Edited by S. Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao D. Phan
Chapter 4: Procedural issues arising from China’s non-participation in the South China Sea Arbitration
Unlike domestic law, non-participation does not constitute a bar to international proceedings, and nor does it mean a default judgment will be automatically issued against a non-participating party. However, the procedural rules of many international courts and tribunals require a court or tribunal to ‘satisfy itself not only that it has jurisdiction but that the claim is well founded in fact and law’. This obligation poses unique challenges for an international court or tribunal seized of the dispute, requiring a delicate balancing act between the rights of the non-appearing state and the rights of the appearing state to ensure the proper administration of justice. In the South China Sea Arbitration initiated by the Philippines against China in 2013, China adopted a policy of non-appearance and non-participation from the beginning. The Arbitral Tribunal took a proactive approach in fulfilling its obligation to satisfy itself not only that it has jurisdiction but also that the claim is well founded in fact and law. This chapter will explore the validity of the Annex VII Arbitral Tribunal’s approach to China’s non-appearance in light of the procedural practices of other international courts and tribunals in state-to-state disputes and generally accepted principles of procedural fairness.
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