On 27 August 2013, the arbitral tribunal established to hear the Philippines-China maritime border dispute issued its first procedural order, which sets out the procedure and schedule for the arbitral proceedings. The order is of particular interest as China is not participating in the arbitral proceedings.
The dispute relates to the “maritime jurisdiction of the Philippines in the West Philippines Sea” (or South China Sea). The Philippines gave notice of arbitration to China on 22 January 2013 pursuant to Annex VII to the United Nations Convention on the Law of the Sea. China has, however, thus far refused to participate in the arbitration proceedings. On 19 February 2013, China delivered a Note Verbale to the Philippines in which it rejected the arbitration proceedings. The State re-iterated its position in a subsequent Note Verbale on 1 August 2013 delivered to the Permanent Court of Arbitration, which is acting as the registry in the proceedings, stating that it “does not accept the arbitration initiated by the Philippines.”
According to the procedural order, the Philippines has until 30 March 2014 to submit its Memorial. The arbitral tribunal will thereafter determine the schedule and procedure for the remainder of the proceedings. In addition, the procedural order sets out the procedure to be followed in the event that one party to the dispute does not participate in the proceedings.
This will not be the first time an arbitration involving a State has proceeded with a State party in absentia. In the investment treaty context, disputes involving Tajikistan, Belize and Moldova have all progressed to final resolution notwithstanding the State’s failure to participate in the proceedings.