Intervention in Inter-State Arbitration, including the Case of UNCLOS Annex VII Arbitration

Abstract

This article addresses the issue of intervention in inter-State arbitration, including arbitration under United Nations Convention on the Law of the Sea (UNCLOS) Annex vii and tackles the question whether intervention in arbitral proceedings is only possible where the parties in dispute have expressly consented to it. It is maintained in this paper that international arbitration is not static and has undergone long evolution which has implications for the notions of party autonomy and confidentiality of proceedings. Nowadays inter-State arbitration is increasingly influenced by the practice of the ICJ and other international courts and tribunals engaged in State-to-State dispute resolution especially in the field of international procedural law. The article demonstrates that intervention in inter-State arbitrations is not as unthinkable as it was some decades ago. It does so by reference to the history of intervention in international arbitration and the practice of States in the field of intervention in international judicial and arbitral proceedings. While examining the function and purposes of the procedure of intervention in inter-State litigation and the forms of intervention known to it, the article assesses what the nature of the competence to permit intervention is. In this regard, it also examines the operation of the principle of consensual jurisdiction with a view to establishing whether intervention is subject to the consent of the parties in dispute. Finally, by way of comparison with other known forms of participation of non-litigants in the proceedings, it stresses the special function of the intervention procedure so as to justify the permissibility of intervention in inter-State arbitration.