Permanent Court of Arbitration, 125

Not until our country won the 501-page, unanimous Arbitral Award (AA), dated July 12, 2016, did the Permanent Court of Arbitration (PCA) become a household name in the Philippines, in Asia, and in the world. Yet, it is the oldest existing international dispute settlement body in the world. It will celebrate its 125th birth anniversary next Monday, July 29, making it older than the International Court of Justice (ICJ) and the United Nations (UN, both born on Oct. 24, 1945) and the League of Nations (born on Jan. 10, 1920). It owes its birth to the Conventions for the Pacific Settlement of International Disputes of 1899 and 1907.

THE ICJ, THE JUDICIAL ORGAN OF THE UN, is composed of 15 judges elected with staggered terms of 15 years by the UN General Assembly and the UN Security Council acting simultaneously but separately. Only states can qualify as plaintiffs or defendants in the ICJ. The judges sit en banc and render decisions that are binding on the parties and all the UN members. However, like most courts, it cannot enforce its decisions. The UN Security Council does.

In contrast, the PCA has no permanent judges with fixed terms of office. Parties chose their arbitrators for every controversy. Under PCA’s auspices, the parties may include states, private organizations, or even individuals. However, by itself, the PCA does not render awards. It merely functions as a “Registry” that, somewhat like the Office of the Clerk of Court in our Supreme Court, provides administrative services to the parties and the arbitrators. Specifically, it transmits oral and written communications from the parties to the arbitral tribunal and vice versa, and among the parties; maintains an archive of official documents; arranges the arbitrators’ fees; holds the arbitration funds and pays expenses; makes available the hearing rooms in the PCA headquarters in the Peace Palace in The Hague or elsewhere; and carries out any task entrusted to it by the parties or by the arbitral tribunal.

Arbitral tribunals whether under the auspices of the PCA or other arbitral bodies like the International Chamber of Commerce, or the International Center for the Settlement of International Disputes are ad hoc by nature and are disbanded after settling the dispute referred to them. Despite their temporary nature, the tribunals’ proceedings and awards are nonetheless binding on the parties thereto and to PCA member states.

TO UNDERSTAND HOW THE PCA WORKS, let us take up briefly the arbitration brought by the Philippines against China that resulted in the AA. The very title of the AA shows the ad hoc nature of the rendering tribunal, thus. “AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA” (Caps in original) abbreviated as Unclos. It did not identify itself as the “Permanent Court of Arbitration.”

Under Article 287(1) of the Unclos, a signatory state may choose anyone or more of the following tribunals (1) the International Tribunal for the Law of the Sea, or Itlos, based in Hamburg, Germany; (2) the ICJ, based in The Hague; (3) ad hoc arbitration (per Annex VII of Unclos); or, (4) a special tribunal constituted for certain categories of disputes (per Annex VIII of Unclos). The tribunal that issued the AA fell under item (3) and thus called itself “An Ad Hoc Arbitral Tribunal Constituted Under Annex VII of the 1982 Convention on the Law of the Sea.”

This ad hoc tribunal constituted on June 21, 2013, was composed of five members. Judge Rudiger Wolfrum, a German, was chosen by the Philippines. A second member was to be named by China. Since China opted not to participate, the president of Itlos—pursuant to the provisions of Unclos—appointed Judge Stanislaw Pawlak, a Pole.

Thereafter, the president of Itlos named three more, Judge Jean-Pierre Cot, a Frenchman, Professor Alfred H. A. Soons, a Dutch, and Judge Thomas A. Mensah of Ghana, as the presiding arbitrator. After it was constituted, the ad hoc tribunal issued Administrative Directive No. 1 appointing the PCA as its “Registry.”

THE PCA ITSELF IS COMPOSED OF FOUR ARBITRATORS from each of its 122 member-states who may or may not be named arbitrators in a specific proceeding. The present members from the Philippines are Ambassador Eduardo Malaya, Dean Antonio La Viña, Dean Sedfrey Candelaria, and retired judge of the International Criminal Court Raul Pangalangan who replaced me as chair of the Philippine group of four when my six-year term expired in August last year. Aside from acting as arbitrators, PCA members are empowered to nominate members of the ICJ as well as candidates for the Nobel Peace Prize.

During the 208th meeting of the PCA member states on Dec. 12, 2022, Malaya was elected president of the PCA Administrative Council for the 2023-2024 term. As such, he successfully supervised the Congress of the Members of the PCA held in The Hague last June 12-14. Our amiable Solicitor General Menardo I. Guevarra attended the Congress as a representative of our government. Ambassador Malaya will also oversee the worldwide celebration of the PCA’s 125th Anniversary. Mabuhay po kayo, Amba Ed!

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