Case Law

In the matter of the South China Sea Arbitration

• The Republic of the Philippines vs. The People’s Republic of China, July 12, 2016,
Permanent Court of Arbitration
• Facts:
– This arbitration concerns disputes between the Parties regarding the legal basis of maritime rights and
entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the
lawfulness of certain actions taken by China in the South China Sea.

– The basis for this arbitration is the 1982 United Nations Convention on the Law of the Sea (the “Convention” or
“UNCLOS”).Both the Philippines and China are parties to the Convention, the Philippines having ratified it on 8
May 1984, and China on 7 June 1996. The Convention, however, does not address the sovereignty of States
over land territory.
– The disputes that the Philippines has placed before the Tribunal fall broadly within four categories.

1. First, the Philippines has asked the Tribunal to resolve a dispute between the Parties concerning the source of
maritime rights and entitlements in the South China Sea. Specifically, the Philippines seeks a declaration from
the Tribunal that China’s rights and entitlements in the South China Sea must be based on the Convention and
not on any claim to historic rights

2. the Philippines has asked the Tribunal to resolve a dispute between the Parties concerning the entitlements to
maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime
features in the Spratly Islands that are claimed by both the Philippines and China.

3. the Philippines has asked the Tribunal to resolve a series of disputes between the Parties concerning the
lawfulness of China’s actions in the South China Sea. The Philippines seeks declarations that China has violated
the Convention

4. the Philippines has asked the Tribunal to find that China has aggravated and extended the disputes between
the Parties during the course of this arbitration by restricting access to a detachment of Philippine marines
stationed at Second Thomas Shoal and by engaging in the large-scale construction of artificial islands and land
reclamation at seven reefs in the Spratly Islands.
In the matter of the South China Sea Arbitration

• Issue: Whether the Arbitral Tribunal has Jurisdiction.

• Ruling:
– In its Award on Jurisdiction, the Tribunal noted that “both the
Philippines and China are parties to the Convention” and that the
provisions for the settlement of disputes, including through
arbitration, form an integral part of the Convention. Although the
Convention specifies certain limitations and exceptions to the subject
matter of the disputes that may be submitted to compulsory
settlement, it does not permit other reservations, and a State may not
except itself generally from the Convention’s mechanism for the
resolution of disputes. The Tribunal also noted China’s non-
participation and held that this fact does not deprive the Tribunal of
jurisdiction. In this respect, the Tribunal recalled the provisions of
Article 9 of Annex VII to the Convention.
Jurisdiction vs. Governing Law

• Jurisdiction refers to where a dispute will be resolved; governing law indicates

which state's law will be used to decide the dispute. It's possible, for example, for
a contract to require lawsuits to be filed in California but decided under New York
law. The selection of which state is used for governing law is not often a crucial
negotiating issue. But the selection of the state for jurisdiction can be more
important: If there's a dispute, that's where everyone will have to go to resolve it.
Sometimes these two provisions are grouped into one paragraph .
https://www.nolo.com/legal-encyclopedia/choice-of-law-provisions-contracts-33357.html