Following the previously reported Decision on Challenges and resignation of two arbitrators in the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), on 8 August 2024 the President of ITLOS, following consultations, appointed Mr James Kateka (United Republic of Tanzania) and Ms Joanna Mossop (New Zealand) to fill the vacancies (UNCLOS, Annex VII, Art 3(e)-(f)), as well as appointing Mr Gudmundur Eiriksson (Iceland) as president of the Arbitral Tribunal (UNCLOS, Annex VII, Art 3(e)-(f)).
The appointments follow previous developments under the Arbitral Tribunal, whereby, among others, the Russian Federation had requested the Arbitral Tribunal “proceed with a ruling in respect of the proper procedure for appointment of replacement arbitrators” (Procedural Order No. 9, para 1). The Arbitral Tribunal noted “that the Parties disagree on the proper interpretation and application of Article 3 of Annex VII to the Convention and the Rules of Procedure [..and..] notes especially its reference to the desirability of agreement between the Parties” (Procedural Order No. 9, paras 45-46). While progress was made, no agreement between the Parties on the appointment of replacement arbitrators was reached (Procedural Order No. 9, paras 17-22). In proceeding with the request, the analysis of the Arbitral Tribunal stated:
39. Professor McRae and Judge Wolfrum were appointed as members of the Arbitral Tribunal, and Professor McRae as its President, by the ITLOS President. Thus, in accordance with Article 3, subparagraph (e), of Annex VII, “the manner prescribed for [their] initial appointment” under subparagraph (f) for filling the vacancies resulting from the successful challenges to Professor McRae and Judge Wolfrum is that outlined in Article 3, subparagraph (e).
Procedural Order No. 9, paras 39-44
[…]
43. In Article 6 of its Rules of Procedure, the Arbitral Tribunal chose to deal with the application of the term in Article 3, subparagraph (e), of Annex VII to the Convention, “the manner prescribed for [their] initial appointment”, in the case of filling a vacancy in the event of withdrawal, incapacity or death of an arbitrator […]
44. Notably, Article 6, paragraph 1, of the Rules of Procedure does not refer to the event of disqualification of an arbitrator upon a successful challenge by a Party.
The Arbitral Tribunal ultimately concluded in Procedural Order No. 9 of 18 July 2024:
48. In its request for a ruling, the Russian Federation has not identified any question of procedure which, in the terms of Article 1, paragraph 2, of the Rules of Procedure of the Arbitral Tribunal, “is not expressly governed by these Rules [of Procedure] or by Annex VII to the Convention or other provisions of the Convention”, and the Arbitral Tribunal will not rule, in the abstract, on questions outside this scope.
Procedural Order No. 9, paras 48-50
49. Ukraine has now applied to the ITLOS President to appoint replacements for Professor McRae and Judge Wolfrum. It is not for this Arbitral Tribunal to comment on how the ITLOS President should respond to that request.
50. Accordingly, for the reasons set out above, the Acting President and the other members of the Arbitral Tribunal, by a majority of two to one, reject the request of the Russian Federation that the Arbitral Tribunal rule on the procedure for the appointment of replacement arbitrators.
Professor Vylegzhanin appended a Dissenting Opinion to Procedural Order No. 9 (not yet publicly available).
De Maribus 