BIFURCATION IN INTER-STATE CASES.

In the South China Sea Arbitration, China resolutely decided to not appear, without even appointing its own arbitrator to an arbitration under Annex VII of the 1982 UN Convention on the Law of the Sea (UNCLOS). Many criticized this decision as unwise, and argued that the conventional litigation wisdom of contesting jurisdiction exclusively at the preliminary phase serves to better China's interests, since it would not prejudice its decision of nonappearance at the subsequent proceedings over merits. The validity of such a "wise" tactic rests upon bifurcation--the division of the proceedings into determination of jurisdiction and determination of merits. Bifurcation has been routinely practiced by the International Court of Justice (ICJ) but has not been used much in other forums of inter-state dispute settlement. The author undertakes the first investigation of 14 cases which eventually went to the UNCLOS arbitration (as of 2018). It finds that the majority of tribunals adopted ad hoc Rules of Procedures by which the tribunals retained discretion on the matter of bifurcation (discretionary bifurcation), and in practice the tribunal's flexibility terminates upon the rejection of the request to bifurcate. In contrast, Article 79 of the ICJ's Rules of Court, allows the Court to adjudicate on questions raised within a duly submitted preliminary objection, with no proceedings on the matter of bifurcation (rule-based bifurcation). This paper traces issues of bifurcation to the Permanent Court of International Justice (PCIJ), to evaluate why and how in the ICJ bifurcation becomes a procedural right, finding that when rulebased bifurcation was added to the article governing preliminary objections in 1926, they believed jurisdictional objections deserved special treatment in the Rules of Court, allowing the Court to better handle jurisdiction of inter-state disputes which was confined by the consent of the parties. The subsequent revisions of the Rules of Court in 1936, 1946, 1972, 1978, and 2001 gradually but solidly provide that a party is entitled to bifurcation, notwithstanding a general belief that bifurcation reduces the Court's efficiency. [ABSTRACT FROM AUTHOR]