At a ceremony in Singapore on 31 August 2015, representatives of the International Tribunal for the Law of the Sea (ITLOS) and the Singaporean Ministry of Law signed a Joint Declaration for Singapore to provide facilities to ITLOS whenever it is desirable for ITLOS or a special chamber of ITLOS to exercise its functions in Singapore. ITLOS announced the arrangements in a joint press release, available here.
Established by the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) in 1982, ITLOS sits to hear any dispute concerning the interpretation or application of the Convention. Currently, there are 167 parties to the Convention, which comprises 166 States and the European Union. Importantly, the United States has not signed or ratified the UNCLOS. Since it was founded in 1996, ITLOS has heard 24 cases (only five of which have been on the merits).
The conclusion of the Joint Declaration for Singapore as a venue in ITLOS proceedings is the first of its kind, but resembles Permanent Court of Arbitration (PCA) Host Country Agreements. The Joint Declaration is not publicly available, but the press release states that “both sides have agreed that whenever proceedings are instituted before a special chamber of the ITLOS or the ITLOS, States parties to the dispute may propose that the chamber or the ITLOS meet in the region, at a place convenient to them“. While ITLOS is seated in Germany, the Statute of ITLOS states that ITLOS can sit and exercise its functions elsewhere whenever it considers this desirable. The 2009 Rules of ITLOS also make provision for all or part of proceedings in a case to be held at a place other than the seat of the ITLOS.
ITLOS was originally created to deal with the disputes that it was thought would arise out of the number of innovations brought about by the 1982 Convention, as an alternative to the International Court of Justice. The relatively low number of cases being brought to ITLOS may be explained by the parties’ freedom of choice and the lack of compulsory jurisdiction under the Convention. The Joint Declaration is a welcome development in making recourse to ITLOS more accessible as the number of disputes involving States in Asia continues to rise, particularly given the prevalence of disputes in the China-South Sea.
The China-Philippines South Sea arbitration is a UNCLOS arbitration currently being heard by a ITLOS under the auspices of the PCA in The Hague. Proceedings like these have been transferred in the past to ITLOS. For Asian states, the Joint Declaration makes transfer a more attractive proposition as proceedings will be heard closer to home in Asia, but – critically – in a completely neutral venue.
Singapore is already a leading seat for international commercial arbitration and parties are increasingly looking to Singapore as a venue for investor-state claims. The declaration is therefore a further arrow in Singapore’s quiver as the global center for international dispute resolution in Asia.
Herbert Smith Freehills’ public international law specialists in Asia and around the world are leaders in the field. Our lawyers have deep experience representing States in inter-State proceedings, including UNCLOS cases. For further information, please contact Alastair Henderson, Partner, Gitta Satryani, Senior Associate, Daniel Waldek, Senior Associate, or your usual Herbert Smith Freehills contact.