Rules of the Tribunal

Part III, Procedure

Section C. Incidental proceedings

Subsection 1. Provisional measures

Article 89

1. A party may submit a request for the prescription of provisional measures under article 290, paragraph 1, of the Convention at any time during the course of the proceedings in a dispute submitted to the Tribunal.

2. Pending the constitution of an arbitral tribunal to which a dispute is being submitted, a party may submit a request for the prescription of provisional measures under article 290, paragraph 5, of the Convention:

3. The request shall be in writing and specify the measures requested, the reasons therefor and the possible consequences, if it is not granted, for the preservation of the respective rights of the parties or for the prevention of serious harm to the marine environment.

4. A request for the prescription of provisional measures under article 290, paragraph 5, of the Convention shall also indicate the legal grounds upon which the arbitral tribunal which is to be constituted would have jurisdiction and the urgency of the situation. A certified copy of the notification or of any other document instituting the proceedings before the arbitral tribunal shall be annexed to the request.

5. When a request for provisional measures has been made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate the parties which are to take or to comply with each measure.

Article 90

1. Subject to article 112, paragraph 1, a request for the prescription of provisional measures has priority over all other proceedings before the Tribunal.

2. The Tribunal, or the President if the Tribunal is not sitting, shall fix the earliest possible date for a hearing.

3. The Tribunal shall take into account any observations that may be presented to it by a party before the closure of the hearing.

4. Pending the meeting of the Tribunal, the President of the Tribunal may call upon the parties to act in such a way as will enable any order the Tribunal may make on the request for provisional measures to have its appropriate effects.

Article 91

1. If the President of the Tribunal ascertains that at the date fixed for the hearing referred to in article 90, paragraph 2, a sufficient number of Members will not be available to constitute a quorum, the Chamber of Summary Procedure shall be convened to carry out the functions of the Tribunal with respect to the prescription of provisional measures.

2. The Tribunal shall review or revise provisional measures prescribed by the Chamber of Summary Procedure at the written request of a party within 15 days of the prescription of the measures. The Tribunal may also at any time decide proprio motu to review or revise the measures.

Article 92

The rejection of a request for the prescription of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts.

Article 93

A party may request the modification or revocation of provisional measures. The request shall be submitted in writing and shall specify the change in, or disappearance of, the circumstances considered to be relevant. Before taking any decision on the request, the Tribunal shall afford the parties an opportunity of presenting their observations on the subject.

Article 94

Any provisional measures prescribed by the Tribunal or any modification or revocation thereof shall forthwith be notified to the parties and to such other States Parties as the Tribunal considers appropriate in each case.

Article 95

1. Each party shall inform the Tribunal as soon as possible as to its compliance with any provisional measures the Tribunal has prescribed. In particular, each party shall submit an initial report upon the steps it has taken or proposes to take in order to ensure prompt compliance with the measures prescribed.

2. The Tribunal may request further information from the parties on any matter connected with the implementation of any provisional measures it has prescribed.

Subsection 2. Preliminary proceedings

Article 96

1. When an application is made in respect of a dispute referred to in article 297 of the Convention, the Tribunal shall determine at the request of the respondent or may determine proprio motu, in accordance with article 294 of the Convention, whether the claim constitutes an abuse of legal process or whether prima facie it is well founded.

2. The Registrar, when transmitting an application to the respondent under article 54, paragraph 4, shall notify the respondent of the time-limit fixed by the President of the Tribunal for requesting a determination under article 294 of the Convention.

3. The Tribunal may also decide, within two months from the date of an application, to exercise proprio motu its power under article 294, paragraph 1, of the Convention.

4. The request by the respondent for a determination under article 294 of the Convention shall be in writing and shall indicate the grounds for a determination by the Tribunal that:

5. Upon receipt of such a request or proprio motu, the Tribunal, or the President if the Tribunal is not sitting, shall fix a time-limit not exceeding 60 days within which the parties may present their written observations and submissions. The proceedings on the merits shall be suspended.

6. Unless the Tribunal decides otherwise, the further proceedings shall be oral.

7. The written observations and submissions referred to in paragraph 5, and the statements and evidence presented at the hearings contemplated by paragraph 6, shall be confined to those matters which are relevant to the determination whether the claim constitutes an abuse of legal process or is prima facie unfounded, and whether the application is made in respect of a dispute referred to in article 297 of the Convention. The Tribunal may, however, request the parties to argue all questions of law and fact, and to adduce all evidence, bearing on the issue.

8. The Tribunal shall make its determination in the form of a judgment.

Subsction 3. Preliminary objections

Article 97

1. Any objection to the jurisdiction of the Tribunal or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within 90 days from the institution of proceedings.

2. The preliminary objection shall set out the facts and the law on which the objection is based, as well as the submissions.

3. Upon receipt by the Registry of a preliminary objection, the proceedings on the merits shall be suspended and the Tribunal, or the President if the Tribunal is not sitting, shall fix a time-limit not exceeding 60 days within which the other party may present its written observations and submissions. It shall fix a further time-limit not exceeding 60 days from the receipt of such observations and submissions within which the objecting party may present its written observations and submissions in reply. Copies of documents in support shall be annexed to such statements and evidence which it is proposed to produce shall be mentioned.

4. Unless the Tribunal decides otherwise, the further proceedings shall be oral.

5. The written observations and submissions referred to in paragraph 3, and the statements and evidence presented at the hearings contemplated by paragraph 4, shall be confined to those matters which are relevant to the objection. Whenever necessary, however, the Tribunal may request the parties to argue all questions of law and fact, and to adduce all evidence, bearing on the issue.

6. The Tribunal shall give its decision in the form of a judgment, by which it shall uphold the objection or reject it or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Tribunal rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.

7. The Tribunal shall give effect to any agreement between the parties that an objection submitted under paragraph 1 be heard and determined within the framework of the merits.

Subsection 4. Counter-claims

Article 98

1. A party may present a counter-claim provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Tribunal.

2. A counter-claim shall be made in the counter-memorial of the party presenting it and shall appear as part of the submissions of that party.

3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Tribunal shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings.

Subsection 5. Intervention

Article 99

1. An application for permission to intervene under the terms of article 31 of the Statute shall be filed not later than 30 days after the counter-memorial becomes available under article 67, paragraph 1, of these Rules. In exceptional circumstances, an application submitted at a later stage may however be admitted.

2. The application shall be signed in the manner provided for in article 54, paragraph 3, and state the name and address of an agent. It shall specify the case to which it relates and shall set out:

3. Permission to intervene under the terms of article 31 of the Statute may be granted irrespective of the choice made by the applicant under article 287 of the Convention.

4. The application shall contain a list of the documents in support, copies of which documents shall be annexed.

Article 100

1. A State Party or an entity other than a State Party referred to in article 32, paragraphs 1 and 2, of the Statute which desires to avail itself of the right of intervention conferred upon it by article 32, paragraph 3, of the Statute shall file a declaration to that effect. The declaration shall be filed not later than 30 days after the counter-memorial becomes available under article 67, paragraph 1, of these Rules. In exceptional circumstances, a declaration submitted at a later stage may however be admitted.

2. The declaration shall be signed in the manner provided for in article 54, paragraph 3, and state the name and address of an agent. It shall specify the case to which it relates and shall:

Article 101

1. Certified copies of the application for permission to intervene under article 31 of the Statute, or of the declaration of intervention under article 32 of the Statute, shall be communicated forthwith to the parties to the case, which shall be invited to furnish their written observations within a time-limit to be fixed by the Tribunal or by the President if the Tribunal is not sitting.

2. The Registrar shall also transmit copies to: (a) States Parties; (b) any other parties which have to be notified under article 32, paragraph 2, of the Statute; (c) the Secretary-General of the United Nations; (d) the Secretary-General of the Authority when the proceedings are before the Seabed Disputes Chamber.

Article 102

1. The Tribunal shall decide whether an application for permission to intervene under article 31 of the Statute should be granted or whether an intervention under article 32 of the Statute is admissible as a matter of priority unless in view of the circumstances of the case the Tribunal determines otherwise.

2. If, within the time-limit fixed under article 101, an objection is filed to an application for permission to intervene, or to the admissibility of a declaration of intervention, the Tribunal shall hear the State Party or entity other than a State Party seeking to intervene and the parties before deciding.

Article 103

1. If an application for permission to intervene under article 31 of the Statute is granted, the intervening State Party shall be supplied with copies of the pleadings and documents annexed and shall be entitled to submit a written statement within a time-limit to be fixed by the Tribunal. A further time-limit shall be fixed within which the parties may, if they so desire, furnish their written observations on that statement prior to the oral proceedings. If the Tribunal is not sitting, these time-limits shall be fixed by the President.

2. The time-limits fixed according to paragraph 1 shall, so far as possible, coincide with those already fixed for the pleadings in the case.

3. The intervening State Party shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.

4. The intervening State Party shall not be entitled to choose a judge ad hoc or to object to an agreement to discontinue the proceedings under article 105, paragraph 1.

Article 104

1. If an intervention under article 32 of the Statute is admitted, the intervenor shall be supplied with copies of the pleadings and documents annexed and shall be entitled, within a time-limit to be fixed by the Tribunal, or the President if the Tribunal is not sitting, to submit its written observations on the subject-matter of the intervention.

2. These observations shall be communicated to the parties and to any other State Party or entity other than a State Party admitted to intervene. The intervenor shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention.

3. The intervenor shall not be entitled to choose a judge ad hoc or to object to an agreement to discontinue the proceedings under article 105, paragraph 1.

Subsection 6. Discontinuance

Article 105

1. If at any time before the final judgment on the merits has been delivered the parties, either jointly or separately, notify the Tribunal in writing that they have agreed to discontinue the proceedings, the Tribunal shall make an order recording the discontinuance and directing the Registrar to remove the case from the List of cases.

2. If the parties have agreed to discontinue the proceedings in consequence of having reached a settlement of the dispute and if they so desire, the Tribunal shall record this fact in the order for the removal of the case from the List, or indicate in, or annex to, the order, the terms of the settlement.

3. If the Tribunal is not sitting, any order under this article may be made by the President.

Article 106

1. If, in the course of proceedings instituted by means of an application, the applicant informs the Tribunal in writing that it is not going on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Tribunal shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the List of cases. A copy of this order shall be sent by the Registrar to the respondent.

2. If, at the time when the notice of discontinuance is received, the respondent has already taken some step in the proceedings, the Tribunal shall fix a time-limit within which the respondent may state whether it opposes the discontinuance of the proceedings. If no objection is made to the discontinuance before the expiration of the time-limit, acquiescence will be presumed and the Tribunal shall make an order recording the discontinuance of the proceedings and directing the Registrar to remove the case from the List of cases. If objection is made, the proceedings shall continue.

3. If the Tribunal is not sitting, its powers under this article may be exercised by the President.