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SOUTH CHINA SEA DECISION #2

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Legality of Hyperlinks

Legality of Hyperlinks

I, for one, while writing, picture the intended audience and the beneficiaries (wishful thinking). This article talks about the legality of hyperlinks, taking a leap from trademarks we jump to the next but a slightly tangled trajectory of Intellectual property Law. Copyrights are about ideas, they say ideas are bullet proof but with all my […]

Preliminary decree in partition suit and role of Commissioner

Preliminary decree in partition suit and role of Commissioner

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Material alterations to a Cheque

Material alterations to a Cheque

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Cheque bounce Case (Altered presumption of acquittal by sessions court)

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave […]

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This article is second in series of articles that analyse the recent decision of Permanent Court of Arbitration in the matter of Philippines v. China. In this part I will analyse arguments advanced by Chinese side with respect to the jurisdiction of Permanent Court of Arbitration, The Hague and consideration of the same by the Court of Arbitration while deliberating upon its jurisdiction.
Chines side simply produced the argument that it was unilateral Arbitration proceedings initiated by the Philippines. Under such circumstances, China stated that it will not be bound either to participate in the proceedings or by the outcome of such proceedings. Further, China has also made clear—through the publication of a Position Paper in December 2014 and in other official statements—that, in its view, the Tribunal lacks jurisdiction in this matter.

 

However, two provisions of the Convention address the situation of a party that objects to the jurisdiction of a tribunal and declines to participate in the proceedings:

(a) Article 288 of the Convention provides that:

“In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”

(b) Article 9 of Annex VII to the Convention provides that:

“If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.”

 

When these two provisions are read together, it becomes clear that the Court had jurisdiction in the stated issue and China being a signatory to the convention, is bound by the decisions of this court. The Tribunal has addressed the scope of its jurisdiction to consider the Philippines’ claims both in its Award on Jurisdiction, to the extent that issues of jurisdiction could be decided as a preliminary matter, and in its Award of 12 July 2016, to the extent that issues of jurisdiction were intertwined with the merits of the Philippines’ claims. The Tribunal’s Award of 12 July 2016 also incorporates and reaffirms the decisions on jurisdiction taken in the Award on Jurisdiction.

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