Manila's arbitration has evidence problem

Accordingly, Note Verbale No CML/17/2009 is the response to the joint submission by Malaysia and Vietnam, while Note Verbale No CML/18/2009 is the response to only Vietnam's submission. The receiver of these two Notes Verbales is not the Philippines, so they are not relevant to the arbitration instituted by Manila. Worse, the tribunal did not examine the two Notes Verbales that were relevant to the parties (Nos 000228 and CML/8/2011) in their entirety. For instance, the tribunal neglected the preface and the first paragraph of Note Verbale No 000228, and only quoted the second and third paragraphs.

Third, another specific problem is that some of the evidence is inadmissible. In judicial practice, evidence obtained through settlement negotiations can be problematic. This is the problem with some bilateral consultation records submitted by the Philippines. These sets of evidence are internal and unilateral records, whose weight of proof can be questioned without the two parties' signatures.

Fourth, according to information available on the Permanent Court of Arbitration's website, there are possible problems of evidence in the merits decision. For example, it is not easy to evaluate the scientific and technical evidence for the tribunal.

To prove some maritime features are low-tide elevations, counsel for the Philippines collected and showed lots of hydrologic, geographical and historical data, and two reports from Kent E. Carpenter, a professor at Old Dominion University in Virginia, US. When these sets of evidence were raised, the Philippines' counsel were dumbstruck by the sharp questions from the tribunal about the facts and proof value of these sets of scientific evidence. The problem with Carpenter's reports is that they were made after the Philippines initiated the proceedings. The relevance and reliability of the reports therefore are questionable.

On the other hand, the other expert witness, Clive Schofield, director of research at Australian National Centre for Ocean Resources and Security, University of Wollongong, New South Wales, Australia, changed his views at the arbitral proceedings. What he said as an expert before the tribunal was totally different from what he had written. Can these experts' statements become the authoritative and valuable evidence for the tribunal?

We strongly suggest the tribunal reconsider the objectivity and neutrality of the statement given by Schofield. It should also be emphasized that many academic papers were also presented at the merit hearing, but academic papers only represent personal viewpoints and cannot be used as evidence in disputes.

Accordingly, several issues have arisen from the use of evidence by the tribunal and the merit decision. The tribunal deliberately framed the Philippines' evidence in a favorable way, thus making the award questionable.

The author is an assistant professor at the Institute of International Law of the Chinese Academy of Social Sciences.