Why So Many Journalists Thought the Permanent Court of Arbitration Made the Philippines-China Decision

The South China Sea arbitration ruling was made by an arbitration tribunal set up in accordance with the United Nations Convention on the Law of the Sea (UNCLOS). However, when discussing the arbitration case, many news reports made the mistake of saying that it was the Permanent Court of Arbitration (PCA) that issued the ruling. Indeed, the context of the PCA’s actions and its very name as a ”Court of Arbitration” obviously throw newcomers and journalists off the track. Its Press Release, however, makes it status and role clear to the wary.

On page 3, the section on the PCA’s Background explains its origin long before the UN and its many contemporary functions as a site for and agent of various types of international dispute resolution arrangements. The PCA is a facilitator. It provides a splendid place for hearings and excellent administration that relieves the tribunal of endless burdens that come with every arbitration and that the arbitrators themselves cannot deal with. It even has a public relations office that captures public attention in the same way that its palatial hearing room does. Plainly, the PCA does not minimize its role.

Commercial arbitrators have to avail themselves of similar facilities and facilitating agencies, but usually the arrangements are less misleading. Some years ago, for example, I had to preside over a 12-day arbitration hearing in London in an investment dispute between a South Korean company and a Saudi Arabian company that had, per the contract, to take place under the arbitration rules of the International Chamber of Commerce. I asked a UK organization to handle all the host arrangements, which relieved me and the ICC headquarters in Paris of many tasks. But there was never any confusion over whether our tribunal’s decision was that of ICC arbitrators or of the facilitating organization.

Future UNCLOS arbitrations should make sure that such confusion does not arise if they again choose to benefit from the assistance of the PCA, as they undoubtedly will.