Obligations To The Nonparticipating Party Of The Arbitral Tribunal Constituted Under Annex ? To The United Nations Convention On The Law Of The Sea

In recent years,the cases resorted to the arbitral tribunal constituted under annex vii to the UNCLOS are increasing.This phenomenon has aroused the extensive attention of the international community to the compulsory dispute settlement mechanism of the UNCLOS.Based on a lot of reasons such as the defects of the mechanism and the preference of the parties for political methods,the defendant is likely to adopt the strategy of nonparticipating the arbitration procedure to fight with the arbitral tribunal and the opposite party,especially when the defendant thinks that the arbitral tribunal has no jurisdiction on the case.In this condition,the defendant is still one party of the case despite his nonparticipation,and the arbitral tribunal still has an obligation to guarantee the defendant from any unfair arbitration.The arbitral tribunal should fulfill its obligations to the nonparticipating party throughout the arbitration procedure.A series of obligations are set in the UNCLOS and in the arbitration procedure of annex vii to the UNCLOS.In the first place,this article makes a summary of the relevant provisions of the convention.Then,obligations of the arbitral tribunal in five aspects are respectively set forth in the article.Firstly,the arbitral tribunal should formulate reasonable rules of the arbitration procedure.The arbitral tribunal cannot overemphasize its jurisdiction alone in rules of the arbitration procedure,but should ensure the equality and fairness of the rules of the arbitration procedure,and should improve the procedural measures which should be adopted to deal with the nonparticipation of one party.Secondly,the arbitral tribunal should ascertain the jurisdiction and admissibility of the case.The arbitral tribunal should strictly examine the admissibility of the appeal of the party,and strictly examine whether it meets the limitations and exceptions of the compulsory procedures entailing binding decisions in UNCLOS.The arbitral tribunal also should examine whether the two parties have fulfilled the obligations which must be satisfied before resorted to the arbitration procedure.Thirdly,the arbitral tribunal should strictly examine the relevant facts and evidence.In order to ensure that there are sufficient facts and evidence to support the adjudication,the arbitral tribunal should take the initiative to collect relevant evidence,strictly examine the admissibility of the evidence,accurately achieve the facts of the case on this basis and carefully exercise its discretionary power.Fourthly,the arbitral tribunal should take various measures to strengthen the interaction and communication with the nonparticipating party to facilitate the work of the arbitral tribunal.Fifthly,the arbitral tribunal should overcome the negative impacts of the factors out of the court.The arbitral tribunal and its arbitrators should ensure that their independence and impartiality cannot be interrupted by any factors out of the court.That whether the arbitral tribunal fully fulfills its obligations or not has a direct influence on the maximum protection of the rights and interests to the nonparticipating party and on the establishment of the authority of the arbitral tribunal.A series of corresponding legal consequences will happen,if the arbitral tribunal violates its obligations.The most important legal consequence is the damage and relief to the legal rights of the nonparticipating party.In a word,that to making systematic summary of the obligations to nonparticipating party of the arbitral tribunal constituted under annex vii to the UNCLOS can provide some reference and inspiration to the study of arbitration procedure under the annex vii of the UNCLOS and to the relevant practice of international law in our country.