Exclusive: China secretly lobbied with arbitral court to scrap Philippine suit on South China Sea

But the tribunal courteously rebuffed the approach

By Alfredo C. Robles, Jr.

China has intensified its diplomatic campaign against the arbitration.

In the last few months China has even targeted the members of the Tribunal, accusing them of “fail[ing] to be impartial” and of being “careless” and “irresponsible.

Thankfully we do not owe this extraordinary outburst to a member of the Chinese Foreign Ministry’s Protocol Department but to a deputy director-general of the Ministry’s Department of Boundary and Ocean Affairs. Although courtesy was probably far from the mind of Xiao Jianguo, he should have remembered that modicum of explanation for such grave accusations was necessary.

Regrettably the only justification provided in the press release was that “many loopholes could be found in its award”, a statement followed by a repetition of the same arguments that China has been trotting out on any and every occasion.

Lately, China has even taken to describing the Permanent Court of Arbitration (PCA) as a “law-abusing” tribunal whose ruling would be “a piece of trash paper”.

The best way to determine whether the judges “failed to be impartial” and were “careless” and “irresponsible” is to examine carefully the Tribunal’s judgment on the merits, but for that purpose, we would have to wait until 12 July 2016.

In the meanwhile, it is possible to form a preliminary assessment of the conduct of the tribunal members by examining their reactions to little-publicized attempts by China to lobby the tribunal, contrary to the Rules of Procedure, and by presenting their professional qualifications.

China’s Attempts to Lobby the Tribunal and the Permanent Court of Arbitration (PCA)

One advantage of reading the entire text of the Award on Jurisdiction and Admissibility  is that we stumble upon interesting facts. On paragraph 40, p. 18, we discover that the Chinese Ambassador to the UK contacted the President of the Tribunal to request a meeting: “On 14 November 2013, after the Chinese Ambassador to the United Kingdom requested a meeting with the President of the Tribunal” ….

The Tribunal’s response to this request is remarkable in at least three respects.

First, it did not publicize the Chinese request at the time that it was made. We can only speculate on the reasons for its not doing so, but it is tempting to assume that the Tribunal did so in order to avoid humiliating China, inflaming public opinion in China and the Philippines, and thus heightening the tension between the two countries. There is no doubt in my mind, though, that the Philippines was informed of the request.

Second, the Tribunal wrote a letter not just to China but also to the Philippines, to remind them of the procedure: “the Tribunal sent a letter to remind the Parties to refrain from ex parte communications with members of the Tribunal.” An ex parte communication is defined by the Model Code of Judicial Conduct of the American Bar Association (ABA) as communication “made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter.”

The Tribunal stated something that China should have known by this time: “[i]f a Party wishes to express its position on matters in dispute, it should be aware that such statements will be made available to all members of the Tribunal, the Registry and the other Party, in accordance with the Rules of Procedure and the need to ensure that the Parties are treated with equality.”

By November 2013 China should have known this, simply because it had been receiving, despite its refusal to participate in the proceedings, copies of all communications sent by the Philippines to the Tribunal and all decisions of the Tribunal, such as the Rules of Procedure  and other procedural orders. The Tribunal then “encouraged the Parties to direct any questions of a procedural nature to the Registry.” Why did the Tribunal also write to the Philippines? The reason is that according to the Rules of the Procedure of the arbitration, the Parties have to be “treated with equality”.

In reality, it was only China that was being courteously “encouraged” to avoid contacting the Tribunal without the other party’s knowledge, but since the parties had to be “treated with equality”, the Tribunal could not very well single out China, at the risk of humiliating it.

Third, the Tribunal did not explain in the Award the reason(s) for China’s request. Upon reading the paragraph, we cannot help but immediately ask: What did China hope to achieve through such contacts? Surely not the termination of the proceedings? Did China believe it could sway the President of the Tribunal, after failing to dissuade the Philippines from proceeding with the arbitration?

In a country of more 1.3 billion people, is there not – or should there not be – a sufficiently large number of   international lawyers who know that this kind of maneuvers is unacceptable, and worse, useless? We are left hanging in the air by the Award, as it does not inform us of the purpose of the meeting requested by the Ambassador. Again, the Tribunal’s silence can most probably be attributed to a desire not to embarrass China. We can only hope that the Chinese letter will be among the documents that the Registry in the arbitration, the Permanent Court of Arbitration (PCA), will upload to the website after the issuance of the Award on the Merits, upon the Tribunal’s instruction.

We should note in passing that even before writing to the Tribunal in November 2013, China had also attempted to contact the PCA.

To quote the Award: The Tribunal recalled that the Registry had on two prior occasions discussed informal questions of a procedural nature with a representative of the Chinese Embassy….The Embassy in question was the Chinese Embassy to the Netherlands, where the PCA headquarters are located.

Again, only the most stoic can resist the temptation to ask:

♦ If China refused to participate in the proceedings, why did it have procedural questions?

♦ Did China find anything vague or disturbing in the Rules of Procedure of the arbitration, adopted on 27 August 2013?

♦ Did it wish the Rules to be amended?

♦ If China had procedural questions, would it not have been simpler to participate in the proceedings instead of resorting to “informal questions”?

♦ Can the subsequent intervention of the Chinese Ambassador to the UK be explained by the failure of the Chinese Embassy in the Netherlands to obtain the information it was seeking?

We can take it for granted that the PCA informed the Tribunal and the Philippines of these Chinese inquiries. Once more the Tribunal is silent on the nature of China’s procedural inquiries and the responses to the inquiries from the PCA and/or the Tribunal.

I believe that once again, the Tribunal’s silence on these matters is motivated by a desire to avoid giving offense to the China, which had again apparently circumvented the Rules of Procedure. We can only hope that the texts of these inquiries and the answers to them will also be uploaded to the PCA website. Only publication can put a stop to the speculations of a fertile imagination.

If these two incidents are anything to go by, then we can say that the Tribunal acted in an impartial and responsible manner. A fervent supporter of the Philippines would be forgiven for going further and arguing that the Tribunal was “biased” in favor of China. If so, the Tribunal would find itself in the paradoxical position of being accused of bias by both parties – perhaps a sign that the Tribunal is impartial, after all.

Tomorrow:
Part 2: Meet the judges in the arbitral court on the South China Sea disputes