Study On The "Non-appearance" Of Arbitration Proceedings In Annex Ⅶ Of UNCLOS

In international judicial practice,"non-appearance" refers to the refusal of a party to a dispute to participate in all or part of the proceedings of an international judicial body.Since the establishment of the International Court of Justice,the phenomenon of "non-appearance" has occurred from time to time.Based on the experience of the International Court of Justice,the United Nations Convention on the Law of the Sea(UNCLOS)also has relevant provisions on the situation of "non-appearance" of parties.Cases in practice show that the introduction of the "non-appearance" clause in UNCLOS is not an unfounded concern.The case studies show that the parties to a dispute adopt a "non-appearance" litigation strategy in Annex VII arbitration proceedings for three main reasons: first,to counteract abusive litigation by the other party through "non-appearance".The main purpose of the parties’ abusive litigation is to occupy the high ground of international public opinion by initiating arbitration and exert diplomatic pressure on the other party in an attempt to reverse the competitive disadvantage.At the same time,the UNCLOS Annex VII arbitration procedure is the "sole residual procedure",which is mandatory and obviously unilateral in practice,and this loophole in the system is easy to be used by parties with ulterior motives as a tool for abusive litigation.Secondly,the setting of a low standard for the review of the prior obligation to initiate the UNCLOS compulsory process by the Annex VII Arbitral Tribunal not only makes it more difficult for the parties to exclude the compulsory process consensually,but also raises the threshold for meeting the "exchange obligation",and is to a certain extent contrary to the principle of state sovereignty and the original intention of the Convention to encourage the settlement of international differences by peaceful means.It is also contrary to the original intent of the Convention to encourage the settlement of international differences by peaceful means.Third,arbitral tribunals have shown an unreasonable tendency to expand their jurisdiction ratione materiae.In some cases,the arbitral tribunal not only ignored the "optional exception" of the parties,but even extended its jurisdiction to hybrid maritime disputes and to land sovereignty disputes.In order to resist abusive litigation and express their disapproval of the tribunal’s jurisdiction,the parties have resorted to the litigation strategy of "non-appearance".The specific manifestations are as follows: first,it falls into passivity in the international public opinion and affects the international image.Second,to incur the negative assessment of non-appearance by international judicial bodies.Third,it is not easy to achieve an ideal arbitration result.In addition,the "non-appearance" strategy of the parties will also bring challenges to the dispute settlement mechanism of the Convention,which will actually question the legitimacy and effectiveness of the dispute settlement mechanism of the Convention.In order to eliminate the above negative effects,the parties can make some adjustments to the litigation strategy,such as partial participation in the proceedings,or active jurisdiction and admissibility defenses.At the same time,the parties can fully exercise their litigation rights to appoint arbitrators and promote the closed-door conduct of arbitration.From the perspective of the arbitral tribunal,in judicial practice,it should respect the true will of the parties and adopt a position of "judicial restraint" so as to avoid becoming a tool for abusive parties.In dealing with mixed maritime disputes,the arbitral tribunal should pay more attention to the rigor and science of the "gravity test" in the specific reasoning process,so as to more accurately define the substance of the dispute between the two parties.