11 Jan Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?
When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.
China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise. And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.
Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless. Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)? Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above. So is it better to simply walk away? If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether. Will other states try this approach?