As we now know, a unanimous Award has just been issued by the Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea in the arbitration instituted by the Philippines against China.
China has repeatedly stated that “it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines.” Annex VII, however, provides that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.” Annex VII also provides that, in the event that a party does not participate in the proceedings, a 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.”
I notice that WTO negotiators “forgot” to include such a clause in the WTO Agreement and the DSU. Does this mean that that they considered that the “China Sea” scenario is legally or empirically impossible in the WTO context ?
