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Comment on the institution of arbitration proceedings between the Kingdom of the Netherlands and the Russian Federation concerning the case of the ship “Arctic Sunrise”

Comment on the institution of arbitration proceedings between the Kingdom of the Netherlands and the Russian Federation concerning the case of the ship “Arctic Sunrise”

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Comment on the institution of arbitration proceedings on 4 October 2013 between the Kingdom of the Netherlands and the Russian Federation concerning the case of the Greenpeace ship “Arctic Sunrise”, currently held in Murmansk, Russia.
Comment on the institution of arbitration proceedings on 4 October 2013 between the Kingdom of the Netherlands and the Russian Federation concerning the case of the Greenpeace ship “Arctic Sunrise”, currently held in Murmansk, Russia.

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Categories:Business/Law
Published by: RA Assoc. Prof. Dr. Stefan Kirchner, MJI on Oct 04, 2013
Copyright:Attribution Non-commercial

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10/18/2013

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Comment on the institution of arbitration proceedings between the Kingdom of the Netherlands and
the Russian Federation concerning the case of the ship “Arctic Sunrise”
 
Stefan Kirchner 
Today, 4 October 2013, the Foreign Ministry of the Netherlands has announced that the Netherlands inthe function as the flag state of the Arctic Sunrise will initiate arbitration proceedings with Russia withthe aim of securing the release of the ship and the crew.An arbitration is a classical way to resolve international legal disputes. Arbitration as a means of solvingdisputes is also foreseen as one of several options to solve disputes in accordance with the Law of theSea Convention, the most important international treaty on these issues. Both the Netherlands andRussia are parties to this treaty, which raises the hope that a solution can be found in this way. In fact,Russia has chosen this kind of special arbitration tribunal as the standard means for the settlement of disputes when it ratified the Law of the Sea Convention in 1997, which means that Russia will be boundby any decision made by this tribunal.Now an ad hoc arbitral tribunal will be formed which will have five members. Both the Netherlands andRussia will appoint two members each. The members are usually recognized experts in the field. TheNetherlands and Russia will choose the fifth member, who will preside over the case. He or she may beneither a national of Russia nor a national of the Netherlands. If they cannot agree within thirty days,the Secretary General of the United Nations or another person who has been appointed by both Stateswill make this choice. The arbitration tribunal will decide whether it is legal that Russia holds both theship and the crew.The arbitration tribunal can create its own procedural rules and both States are obliged to cooperatefully with the tribunal. The members of the tribunal can visit the ship and the crew as well as the oil rig.The costs of these proceedings are shared equally by Russia and the Netherlands regardless of theoutcome of the case.The Netherlands can ask for interim measures, which can include an order to release the ship and / orthe crew immediately. The tribunal will make decisions with a simple majority. Even if up to twomembers of the tribunal are absent or abstain, the result will remain valid.The Netherlands as the flag state of the Arctic Sunrise is the only country which could have institutedthese proceedings and I am confident that this is a step in the right direction because it shows thatdespite the very strong rhetoric from some Russian authorities this is still essentially a question of international law and that eventually the rule of law will prevail here.I also hope that in the meantime the Russian authorities will ensure that all rights of the crewmembersare fully respected while they are in Russian custody. From the information available at this time, itappears that the Russian reaction has been disproportionate to the actions of the crewmembers of theArctic Sunrise. I would have understood it had there been consequences for entering the 500 m

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