Protocol on Environmental Protection 5

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Protocol on Environmental Protection

 

Article 3

1. The Arbitral Tribunal shall be composed of three Arbitrators who
shall be appointed as follows:

(a) The party to the dispute commencing the proceedings shall appoint
one Arbitrator, who may be its national, from the list referred to
in Article 2. This appointment shall be included in the
notification referred to in Article 4.

(b) Within 40 days of the receipt of that notification, the other party
to the dispute shall appoint the second Arbitrator, who may be its
national, from the list referred to in Article 2.

(c) Within 60 days of the appointment of the second Arbitrator, the
parties to the dispute shall appoint by agreement the third
Arbitrator from the list referred to in Article 2.

The third Arbitrator shall not be either a national of a party to
the dispute, or a person designated for the list referred to in
Article 2 by a party to the dispute, or of the same nationality as
either of the first two Arbitrators. The third Arbitrator shall be
the Chairperson of the Arbitral Tribunal.

(d) If the second Arbitrator has not been appointed within the
prescribed period, or if the parties to the dispute have not
reached agreement within the prescribed period on the appointment
of the third Arbitrator, the Arbitrator or Arbitrators shall be
appointed, at the request of any party to the dispute and within 30
days of the receipt of such request, by the President of the
International Court of Justice from the list referred to in Article
2 and subject to the conditions prescribed in subparagraphs (b) and
(c) above. In performing the functions accorded him or her in this
subparagraph, the President of the Court shall consult the parties
to the dispute.

(e) If the President of the International Court of Justice is unable to
perform the functions accorded him or her in subparagraph (d) above
or is a national of a party to the dispute, the functions shall be
performed by the Vice-President of the Court, except that if the
Vice-President is unable to perform the functions or is a national
of a party to the dispute the functions shall be performed by the
next most senior member of the Court who is available and is not a
national of a party to the dispute.

2. Any vacancy shall be filled in the manner prescribed for the initial
appointment.

3. In any dispute involving more than two Parties, those Parties having
the same interest shall appoint one Arbitrator by agreement within the
period specified in paragraph 1 (b) above.

Article 4

The party to the dispute commencing proceedings shall so notify the other
party or parties to the dispute and the Secretary in writing. Such
notification shall include a statement of the claim and the grounds on
which it is based. The notification shall be transmitted by the
Secretary to all Parties.

Article 5

1. Unless the parties to the dispute agree otherwise, arbitration shall
take place at The Hague, where the records of the Arbitral Tribunal shall
be kept. The Arbitral Tribunal shall adopt its own rules of procedure.
Such rules shall ensure that each party to the dispute has a full
opportunity to be heard and to present its case and shall also ensure
that the proceedings are conducted expeditiously.

2. The Arbitral Tribunal may hear and decide counterclaims arising out
of the dispute.

Article 6

1. The Arbitral Tribunal, where it considers that prima facie it has
jurisdiction under the Protocol, may:

(a) at the request of any party to a dispute, indicate such provisional
measures as it considers necessary to preserve the respective
rights of the parties to the dispute;

(b) prescribe any provisional measures which it considers appropriate
under the circumstances to prevent serious harm to the Antarctic
environment or dependent or associated ecosystems.

2. The parties to the dispute shall comply promptly with any provisional
measures prescribed under paragraph 1 (b) above pending an award under
Article 10.

3. Notwithstanding the time period in Article 20 of the Protocol, a
party to a dispute may at any time, by notification to the other party or
parties to the dispute and to the Secretary in accordance with Article 4,
request that the Arbitral Tribunal be constituted as a matter of
exceptional urgency to indicate or prescribe emergency provisional
measures in accordance with this Article. In such case, the Arbitral
Tribunal shall be constituted as soon as possible in accordance with
Article 3, except that the time periods in Article 3 (1) (b),
(c) and (d) shall be reduced to 14 days in each case. The Arbitral
Tribunal shall decide upon the request for emergency provisional measures
within two months of the appointment of its Chairperson.

4. Following a decision by the Arbitral Tribunal upon a request for
emergency provisional measures in accordance with paragraph 3 above,
settlement of the dispute shall proceed in accordance with Articles 18,
19 and 20 of the Protocol.

Article 7

Any Party which believes it has a legal interest, whether general or
individual,which may be substantially affected by the award of an
Arbitral Tribunal, may,unless the Arbitral Tribunal decides otherwise,
intervene in the proceedings.

Article 8

The parties to the dispute shall facilitate the work of the Arbitral
Tribunal and, in particular, in accordance with their law and using all
means at their disposal, shall provide it with all relevant documents and
information, and enable it, when necessary, to call witnesses or experts
and receive their evidence.

Article 9

If one of the parties to the dispute does not appear before the Arbitral
Tribunal or fails to defend its case, any other party to the dispute may
request the Arbitral Tribunal to continue the proceedings and make its
award.

Article 10

1. The Arbitral Tribunal shall, on the basis of the provisions of the
Protocol and other applicable rules and principles of international law
that are not incompatible with such provisions, decide such disputes as
are submitted to it.

2. The Arbitral Tribunal may decide, ex aequo et bono, a dispute
submitted to it, if the parties to the dispute so agree.

Article 11

1. Before making its award, the Arbitral Tribunal shall satisfy itself
that it has competence in respect of the dispute and that the claim or
counterclaim is well founded in fact and law.

2. The award shall be accompanied by a statement of reasons for the
decision and shall be communicated to the Secretary who shall transmit it
to all Parties.

3. The award shall be final and binding on the parties to the dispute
and on any Party which intervened in the proceedings and shall be
complied with without delay. The Arbitral Tribunal shall interpret the
award at the request of a party to the dispute or of any intervening
Party.

4. The award shall have no binding force except in respect of that
particular case.

5. Unless the Arbitral Tribunal decides otherwise, the expenses of the
Arbitral Tribunal, including the remuneration of the Arbitrators, shall
be borne by the parties to the dispute in equal shares.

Article 12

All decisions of the Arbitral Tribunal, including those referred to in
Articles 5, 6 and 11, shall be made by a majority of the Arbitrators who
may not abstain from voting.

Article 13

This Schedule may be amended or modified by a measure adopted in
accordance with Article IX (1) of The Antarctic Treaty . Unless the
measure specifies otherwise,the amendment or modification shall be deemed
to have been approved, and shall become effective, one year after the
close of The Antarctic Treaty Consultative Meeting at which it was
adopted, unless one or more of the Antarctic Treaty Consultative Parties
notifies the Depositary, within that time period, that it wishes an
extension of that period or that it is unable to approve the measure.

2. Any amendment or modification of this Schedule which becomes
effective in accordance with paragraph 1 above shall thereafter become
effective as to any other Party when notice of approval by it has been
received by the Depositary.

Conclusion

Notes

See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

International Court of Justice, Protocol on Environmental Protection, The Antarctic Treaty.

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