Abstract: By way of judicial bodies and by way of arbitration are both modes of adjudication. Adjudication indicates a particular law-based way of reaching a final decision in a contention（Often referred to as“litigation”），involving one or more adjudicators, making a binding decision after an adversarial procedure during which the parties benefit from an equality of rights. The law-based nature of adjudicative decision-making distinguishes adjudication from other processes, such as political decision-making and mediation. since international judicial bodies have developed from institutionalized forms of arbitration, both processes share some common attributes (such as the ability of parties to some judicial and arbitral procedures to influence the composition of the bench, and the establishment of both procedures pursuant to an international law instrument). These fundamental similarities are why these two distinct processes are often treated together. Chapter 15, Section 2, of UNCLOS provides that States have the right to declare their choice of one or more "Compulsory Procedures Entailing Binding Decisions" to settle disputes over the interpretation and application of UNCLOS, and those “Compulsory Procedures” include the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex VII arbitration. China has not yet made the choice of procedure. However, Choosing a better dispute settlement procedure should be an important way to deal with "legal war" and avoid the risks of international litigation. The ICJ, the ITLOS and Annex VII arbitration are the three major adjudicatory procedures under the Chapter 15 of Convention. Their decisions are equally binding, but the ICJ surpasses the other two procedures in terms of authority and enforcement of decisions. As an ad hoc arbitration—a purely isolated, one-time exercise, Annex VII arbitration, with greatest procedural risks and the weakest normalization, is however the only residual compulsory mechanism among the dispute settlement procedures of UNCLOS. The existing rules of Annex VII arbitration are out of proportion to the functional requirements of procedural justice, particularly by way of which always addressing disputes concerning sovereign rights and vital interests of State parties. Since China has not yet withdrawn from UNCLOS and the provisions of the Convention cannot be modified in a short period of time, China should conduct risk assessments up front, evaluate the merits of proceedings in advance, trying to master the procedural initiative of Annex VII arbitration and avoid its procedural risks

Keywords: UNCLOS, Procedural law, ICJ, ITLOS, Annex VII arbitration, International Adjudication

Author:Luo Huanxin, an associate research fellow at CASS Institute of International Law and the deputy director and secretary-general of CASS Center for the Law of the Sea Studies.

Source: 5 (2022) Local Legislation Journal