WMU Journal of Maritime Affairs, 2004, Vol. 3, No.2, 111–121

The Significance of the International Tribunal for the Law of the Sea for the Shipping Industry Thomas A. Mensah International Tribunal for the Law of the Sea (ITLOS)

Abstract The International Tribunal for the Law of the Sea (ITLOS) was established by the 1982 United Nations Convention on the Law of the Sea as a body to settle disputes between States Parties to the Convention regarding the interpretation or application of the Convention’s provisions, including provisions concerning the exercise of the powers of States over shipping and the discharge by states of their responsibilities and obligations in relation to ships. ITLOS is competent to deal with disputes in which a State is alleged to have wrongly interfered with or otherwise restrained the operation of a vessel when it is in a port of the State or within the territorial sea or exclusive economic zone of the State. In its previous judgments, ITLOS has provided clarifications of some important areas of the law of the sea concerning the operation and regulation of shipping by flag States and other states. ITLOS plays a key role in the regime of the Law of the Sea Convention relating to the prompt release of ships and their crews that are arrested or detained in a foreign port. ITLOS also has the possibility to serve as a judicial organ for the settlement of disputes under other maritime agreements and contracts, if the parties to the agreements or contracts agree to confer jurisdiction on it. There are many advantages to be gained by States and shipping operators from using ITLOS as the body for the settlement of disputes under agreements. These advantages include savings in time and expenses. Key words: law of the sea, ITLOS, shipping, prompt release, agreements

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Introduction

One of the major parts of the 1982 United Nations Convention on the Law of the Sea deals with the law regulating the use of the sea by ships and other seaborne craft for the transport of goods and persons. In particular, the Convention establishes a The views expressed in this paper are those of the author and are not to be attributed in any form to the International Tribunal for the Law of the Sea.

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legal regime for the orderly conduct and regulation of shipping in all areas of the sea. Among other things, it recognizes the right of ships of all nations to exercise the right of navigation on the high seas and, subject to well-defined conditions, also in the territorial sea and other marine areas within the jurisdiction of individual States. The Convention specifies the rights, powers and obligations of different categories of states to ensure safety and efficiency of maritime transport and the protection and preservation of the marine environment from pollution resulting from the operation of ships.

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The International Tribunal for the Law of the Sea (ITLOS)

The International Tribunal for the Law of the Sea (ITLOS) was established by the Convention on the Law of the Sea (UNCLOS) as one of several procedures by which States Parties to the Convention may settle disputes which arise between them regarding the interpretation or application of the provisions of the Convention1. The other alternative procedures are the International Court of Justice (ICJ); arbitral tribunals constituted in accordance with Annex VII to the Convention; and special arbitral tribunals constituted in accordance with Annex VIII to the Convention2. A State Party is free to decide which of the procedures it wishes to accept. The Convention specifies the procedure by which States indicate the procedures which they accept for the settlement of disputes in which they are parties.3 It also sets out the limitations and exceptions to the competence of the courts and tribunals4. The Statute of ITLOS is contained in Annex VI to the Convention. Like the other procedures specified in article 287 of the Convention, ITLOS is competent to deal with disputes regarding the interpretation or application of any provisions of the Convention, if all the parties in the dispute have accepted its jurisdiction, either in general terms or in respect of the particular dispute

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The Jurisdiction of ITLOS

Disputes that fall within the jurisdiction of ITLOS include disputes concerning the exercise of rights and powers by states over shipping as well as on the discharge by states of their responsibilities and obligations in relation to ships operating under their authority or within areas of their jurisdiction. The categories of potential disputes

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For a comprehensive expose on ITLOS, see Eiriksson, G.: The International Tribunal for the Law of the Sea. The Hague/London/Boston: Martinus Nijhoff Publishers, 2000. UNCLOS, Art. 287, paragraph 1. The procedure for accepting the jurisdiction of ITLOS or any of the other procedures is set out in paragraph 1 of article 287 of the Convention. This states that a State is free to choose one or more of the procedures listed in the article “when signing, ratifying or acceding to” the Convention. The choice is made by a written declaration which remains in force until three months after notice of its revocation has been deposited with the Secretary General of the United Nations as the depositary of the Convention. The limitations and exceptions to the competence of courts and tribunals are spelt out in Articles 297 and 298 of the Convention.

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that may be submitted to the Tribunal are set out in article 297 of the Convention. They include disputes in which it is alleged that:

• a coastal state has acted in contravention of the provisions of the Convention with • •

regard to the freedoms and rights of navigation, over-flight or the laying of submarine cables and pipelines or in regard to other internationally lawful uses of the sea specified in article 58 (of the Convention); or a state, “in exercising these freedoms, rights and uses, has acted in contravention of the Convention or of the laws and regulations adopted by the coastal state in conformity with the Convention or other rules of international law not incompatible with the Convention; or a coastal state has violated applicable national or international rules and standards for the protection and preservation of the marine environment (as set out in Part XII of the Convention).

Thus, ITLOS would have jurisdiction to deal with cases in which, for example, a state is alleged to have wrongly interfered with or otherwise restrained the operation of a vessel in the port of that state or within its territorial sea or exclusive economic zone. Interference or restraint may be wrongful because it is contrary to a rule of customary international law or a provision of the Convention of the Law of the Sea or a provision of another applicable international agreement.

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Judgments of ITLOS

In its very first full judgment (in the case of the SAIGA between Saint Vincent and the Grenadines and Guinea), the Tribunal found that Guinea acted in violation of the Convention in arresting the ship, the SAIGA when the ship was operating in the exclusive economic zone Guinea5. Guinea had stated that it had arrested the ship for an alleged breach of its customs laws while it was operating in the exclusive economic zone of Guinea. According to the judgment of ITLOS, it was unlawful for Guinea to apply its customs laws to a ship operating in the exclusive economic zone.6 Guinea had also argued that it had arrested the SAIGA after exercising the right of hot pursuit in accordance with article 111 of the Convention. In its judgment, ITLOS found that Guinea had “stopped and arrested the SAIGA… in circumstances which did no justify the exercise of the right of hot pursuit under the Convention”7. Further, ITLOS found that Guinea had “used excessive force and endangered human life before and after boarding the SAIGA, and thereby violated the rights of Saint Vincent and the Grenadines (the flag State of the vessel) under international law”8. 5 6

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The SAIGA (No.2) Case (Saint Vincent and the Grenadines v. Guinea). ITLOS: Reports of Judgments, Advisory Opinions and Orders. Vol. 3, 1999, p. 10. “In the view of the Tribunal, the Convention does not empower a coastal State to apply its custom laws in respect of any parts of the exclusive economic zone not mentioned above” (i.e. in respect of artificial islands, installations and structures referred to in UNCLOS Art. 60, paragraph 2). Ibid., paragraph 127. Ibid., paragraph 150. Ibid., paragraph 159.

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Another finding of ITLOS in the SAIGA case that may be of significance to the shipping industry was on the issue of the right of a flag state to bring claims on behalf of non-nationals members of the crew of a ship flying its flag. In its submission, Guinea had argued that Saint Vincent and the Grenadines, the flag State of the SAIGA, was not competent to institute claims on behalf of members of the crew of the vessel since none of them was a national of Saint Vincent and the Grenadines. In the judgment, ITLOS stated that it was “unable to accept Guinea’s contention that Saint Vincent and the Grenadines is not entitled to present claims for damages in respect of natural and juridical persons who are not nations of Saint Vincent and the Grenadines”. ITLOS declared that “the ship, everything on it, and every person involved in or interested in its operation, are treated as an entity linked to the flag State. The nationalities of these persons are not relevant”9 In the SAIGA case, ITLOS also gave an important clarification on the relationship between the ship and the state under whose flag it flies. ITLOS had been requested to rule on two challenges to the registration status of the vessel. The first challenge was based on the allegation that the ship had not been properly registered in Saint Vincent and the Grenadines, while the second objection was that, in any case, Saint Vincent and the Grenadines could not be considered as the flag State of the vessel because there was no “genuine link” between the vessel and the State, as required by paragraph 1 of article 91 of the Convention on the Law of the Sea.10 In its judgment, ITLOS rejected the challenge to the registration status of the SAIGA. It found that Saint Vincent and the Grenadines “had discharged the initial burden of establishing that the SAIGA had Vincentian nationality at the time it was arrested by Guinea” and that Guinea had not proved its “contention that the ship was not registered in or did not have the nationality of Saint Vincent and the Grenadines” at that time.11 This judgment of ITLOS may be contrasted with its decision in another case, the GRAND PRINCE case,12 where ITLOS decided that the Applicant, the Government of Belize, did not have standing to bring the case because the ship was not properly registered under the flag of Belize. In the latter case, ITLOS concluded that “the documentary evidence submitted by the Applicant fails to establish that Belize was the flag State of the vessel when the Application was made”13.

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Ibid., paragraph 106. The Tribunal referred to “two basic characteristics of modern maritime transport: the transient and multinational composition of ships crews”. It noted that “any ship could have a crew comprising persons of different nationalities. If each person sustaining damage were obliged to look for protection from the State of which such person is a national, undue hardship would ensue” (paragraph 107). UNCLOS, Art. 91, paragraph 1, states that “There must exist a genuine link between the State and the ship”. Ibid., paragraph 72. The GRAND PRINCE case (Belize v. France) ITLOS: Reports of Judgments, Advisory Opinions and Orders. Vol. 5, 2001, p.17. Ibid., paragraph 93.

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In response to the allegation that there was not a genuine link between the ship and the flag State, ITLOS concluded that there was no evidence to support the alleged absence of a genuine link between the SAIGA and St. Vincent and the Grenadines as the flag State.14 With respect to the provision of article 91 that there should exist a genuine link between the flag State and the ship, ITLOS stated that the purpose of article 91 of the Convention on the Law of the Sea on the need for a genuine link between a ship and its flag State is “to secure more effective implementation of the duties of the flag State (as set out in article 94 of the Convention) and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States”15.

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Prompt Release of Arrested Ships and Crews

Another function of ITLOS that may be of particular significance to the shipping industry is its role in the regime of the Convention on the “prompt release” of ships and crews that are arrested or detained in foreign ports. Certain provisions of the Law of the Sea Convention empower a State to arrest a vessel when it is voluntarily in its port, if there is evidence that the vessel has violated provisions of certain laws of the State or applicable rules of international law. But most of the provisions also state that an arrested ship should be released upon the posting of a reasonable bond or other financial security. For example, article 73 of the Convention provides that a ship that is arrested for violation of the fisheries laws of a coastal state “shall be promptly released upon the posting of reasonable bond or other financial security”16. Similarly, article 220 of the Convention gives to a port state the power to institute proceedings, including detention of the vessel, if there are clear grounds that the ship has committed a violation of applicable international or national laws for the prevention, reduction and control of marine pollution from vessels.17 Nevertheless, paragraph 7 of the same article stipulates that the detaining state shall allow the ship to proceed if it complies with applicable requirements for bonding or other financial security. Article 292 of the Convention provides for a special judicial process to obtain the release of an arrested ship or its crew where it is alleged that the detaining state “has not complied with a provision of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security”. Specifically, the article gives to the flag state of the detained ship the right to bring an application to demand the release of the vessel and its crew. The application may be submitted to any court or tribunal agreed between the detaining state and the flag state, and such court or tribunal has the power to order the release of the vessel upon the payment of a bond or other financial security that it determines to be reasonable in the circumstances. The court or tribunal could be any one of the procedures designated in article 287 of the Convention for the settlement of disputes under the 14 15 16 17

Op. Cit. 6, Judgment paragraph 87. Ibid., paragraph 83. UNCLOS, Art. 73, paragraph 2. Ibid., art. 220, paragraphs 2 and 6.

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Convention, including ITLOS if the parties involved in the dispute have chosen it as their preferred procedure. In addition, the Convention assigns a special and residual role to ITLOS. Article 292 of the Convention states that, if the parties involved in the dispute do not agree on a court or tribunal to deal with the matter “within tend days from the time of detention (of the vessel)” the the question of release of the vessel or its crew may be submitted to ITLOS “by or on behalf of the flag State” of the arrested ship. Upon such submission, ITLOS becomes competent to determine whether the ship should be released upon the posting of a reasonable bond or other financial guarantee and, if so, what bond or guarantee it considers reasonable and appropriate in the circumstances. Pursuant to paragraph 4 of Article 292 of the Convention, the decision of the Tribunal is binding on both the detaining State and the flag State. That provision reads: “upon the posting of the bond or other financial security determined by the (ITLOS), the authorities of the detaining State shall comply promptly with the decision of (ITLOS) concerning the release of the vessel or its crew”18. The competence of ITLOS to deal with an application for the prompt release of ships does not depend on the acceptance of its jurisdiction by one or other of the States involved in the case. The jurisdiction of ITLOS extends to each and every State which is a Party to the Convention. Hence, regardless of the choice of procedure actually made or applicable to it, the flag State can bring an application for the release of a ship flying its flag to ITLOS, and the arresting or detaining State is obliged to submit to the jurisdiction of ITLOS, even if that State has expressly rejected ITLOS as a forum for the settlement of disputes under the Convention. The only way in which a port State can avoid submitting to the jurisdiction of ITLOS in such a case is if it reaches agreement with the flag State to bring the dispute to another court or tribunal. An application for the release of an arrested ship does not have to be submitted by the flag State itself. Pursuant to paragraph 2 of article 292 of the Convention, such an application may be made “by or on behalf of the flag State of the vessel”. This means that the application to ITLOS (or another court) can be submitted by an entity other than the flag State, provided that the entity has been suitably authorized by the flag State to make the application on its behalf. For example the owner of the arrested ship may be authorized to bring an application on behalf of the flag State. Similarly the authorization to submit an application could be granted to a national association of shipowners or another institution or body. The choice is entirely in the discretion of the flag State. This is underscored by the Rules of ITLOS. After reproducing the language of paragraph 2 of article 292 of the Convention, article 18

Paragraph 3 of article 292 of the Convention, which clarifies the limits of the competence of ITLOS in this regard states that “ITLOS (or other court or tribunal dealing with an application for prompt release) shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew” (emphasis supplied).

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110 of the Rules of ITLOS states that “a State Party may at any time notify the Tribunal of

• the State authorities competent to authorize persons to make applications on its behalf under article 292 of the Convention. • the name and address of any person who is authorized to make an application on its behalf.

In addition, paragraph 3 of article110 states that “an application on behalf of a flag State shall be accompanied by an authorization under paragraph 2, if such authorization has not been previously submitted to he Tribunal as well as by documents stating that the person submitting the application is the person named in the authorization…” Two consequences follow from these provisions. The first is that there is no restriction as to the nature of the entity which may submit an application for the prompt release of an arrested ship to ITLOS on behalf of the flag State. Any natural or juridical person may be authorized by a flag State to bring an application on its behalf, and the person so authorized will have full legal standing to proceed with all stages of the case before ITLOS. 19 The second implication of the provisions of the Convention and the Rules of ITLOS is that authorization to submit applications on behalf of a flag State may be given either in general terms (on a “standing basis”) or ad hoc for individual cases. Thus a Government may designate a “person” (an individual, a corporation or an agency) as the body entitled to submit applications before the Tribunal for the release of arrested ships flying the flag of that State. Once ITLOS is duly informed in the appropriate manner of the designation, the person so designated will be able without more to submit applications to ITLOS in respect of any ship flying the flag of the State when the ship is detained in a foreign port.

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Jurisdiction of ITLOS over Disputes under Other Conventions and Agreements

There is a third area of the jurisdiction of ITLOS that may be of even greater interest to non-state operators in the maritime area, including in particular the shipping industry. ITLOS is competent to adjudicate on cases where some or all of the parties may not be states. In this context, ITLOS is different from other international courts such as, for example, the International Court of Justice (ICJ). As is well known, only 19

In fact, in the first case submitted to the Tribunal (SAIGA No.1 case, Prompt Release), the authorization to submit the Application before ITLOS was given to a law firm. In that case the procedure involved two stages. First, the “power to authorize” was granted by the Minister of State of Saint Vincent and the Grenadines to the Commissioner for Maritime Affairs. On the strength of that power to authorize, the Commissioner of Maritime Affairs in turn issued the formal authorization to the law firm to bring an action “ on behalf ” of the State.

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states may be parties in cases before the International Court of Justice This means that the ICJ cannot accept or deal with a dispute if one of the parties involved is a non-state entity.20 For example, a dispute between a state and a multinational corporation or an inter-governmental institution such as the European Community cannot be submitted to the International Court of Justice. ITLOS, on the other hand, is able to deal with such cases. Article 20 of the Statute of ITLOS states that the “Tribunal shall be open to entities other than States Parties in any case submitted to it pursuant to any other agreement conferring jurisdiction on the Tribunal…” This provision is an amplification or Article 288 of the Convention. That article states that the Tribunal (and other judicial bodies referred to in article 287 of the Convention) “shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention which is submitted to it in accordance with the agreement”. By virtue of these provisions, ITLOS can act as a judicial body for disputes arising under a convention or agreement other than the Convention on the Law of the Sea. This will be so where such a convention or agreement provides that disputed arising in relation to any of its provisions may be submitted to ITLOS. A second consequence of the above-quoted provisions of the Convention and Statute is that ITLOS may exercise jurisdiction in cases where one of the parties involved is a non-state entity, such as a private commercial corporation or an intergovernmental or nongovernmental organization. This will be so if an agreement in which a non-state entity or entities are parties confers jurisdiction on ITLOS, and if the agreement also provides that such non-state entities can appear as independent parties in disputes arising under the agreement. For example, if an agreement between two or more states, or between a State and a corporation, or between two or more corporations, were to provide that disputes arising under the agreement should be submitted to ITLOS for settlement, ITLOS would be competent to deal with a dispute regarding the interpretation or application of the agreement when any such dispute is submitted to it in accordance with the terms of the agreement. But the competence of ITLOS to accept jurisdiction over disputes arising from other agreements is not unlimited. Article 288 of the Convention states that jurisdiction may be conferred on ITLOS by “international agreement related to the purposes of this Convention”. This means that ITLOS can accept and exercise jurisdiction conferred on it by an agreement within the “maritime domain”. In this regard, it has been suggested by one learned commentator that ITLOS could exercise jurisdiction conferred on it by an agreement that has no relation to the law of the sea. This view is based on the provisions of articles 20 and 21 of its Statute both of which refer to jurisdiction conferred by “any other agreement”, without the addition of the “related

20

“Only States may be parties in cases before the Court”. Art. 34, paragraph 1, of the Statute of the International Court of Justice.

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to the purposes of the Convention”.21 However that may be, there can be little doubt that ITLOS has the capacity to accept and exercise jurisdiction conferred on it by an agreements whose subject is clearly within the scope of the Convention on the law of the Sea. It is reasonable, therefore, to assume that an agreement dealing with aspects of shipping or other matters related to maritime transport would qualify as an agreement that is “related to the purposes” of the Convention on the Law of the Sea. Accordingly, such an agreement could legitimately confer jurisdiction on ITLOS, in accordance with article 288 of the Convention and article 21 of the Statute of ITLOS There would normally be no problem where the agreement conferring jurisdiction on ITLOS is a “public law” agreement between two or more States. But there is good support for the view that jurisdiction could also be conferred on ITLOS by a “private law” agreement, such as an agreement between a State and a non-state entity or an agreement or contract between two or more non-state entities. Thus, it is possible to envisage that ITLOS may be designated as the forum for the settlement of disputes regarding the interpretation or application of a private maritime law agreement, such as a charterparty; or a mortgage agreement between a bank and a shipowner for the purchase of ship; or an agreement between a ship-yard and a shipowner; or a contract between a classification society and a flag State or shipowner for which the society performs professional services. What is needed to effectively confer such jurisdiction is for the agreement or contract in question to state expressly that disputes arising under it may be submitted to ITLOS at the request of one or all of the parties to the dispute. Some complication could arise from the difference in wording between the provision of Convention on the Law of the Sea on this subject and the corresponding provision in the Statute of ITLOS. While article 288 of the Convention provides that jurisdiction may be conferred on ITLOS by “international agreement”, articles 20 and 21 of the Statue refer only to jurisdiction conferred by “any other agreement”. This difference in language raises the question whether an agreement conferring jurisdiction on ITLOS must necessarily be “international” in character and, if so, what makes an agreement qualify as “international”.22 This is not only an interesting issue for academic discussion, but could also be pose a major problem in practice. In case of doubt, it will be left to ITLOS to decide whether an agreement which seeks to confer jurisdiction meets the requirements specified in the Convention and in the Statute so as to enable ITLOS to accept and exercise such jurisdiction. The potential role of the ITLOS as a forum for the settlement of disputes under maritime agreements has not been sufficiently discussed in the writings on ITLOS. 21

22

Boyle, A. E.: The Proliferation of International Jurisdictions and its Implications for the Court. In: Bowett and others (eds): The International Court of Justice: Process, Practice and Procedure. British Institute of International and Comparative Law, Public International Law Series, 1997, pp. 124–130, at p. 127. On this see especially Eiriksson, Op. Cit. 2 supra, pp. 112–115.

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However, the proposition that ITLOS has such a role appears to be fully in accord with the wording of the relevant provisions of the Convention and the Statute. Furthermore, such a role for ITLOS would seem to reflect the general intent of the drafters of the Convention when they established ITLOS as a judicial body to which access would be available both for States and also for non-state entities for the peaceful settlement of their disputes. As provided for in articles 153, 187 and 291 of the Convention, the Seabed Disputes Chamber of ITLOS has unquestioned competent to deal with disputes involving non-state entities engaged in seabed mining activities under Part XI of the Convention; and such non-state entities have access to the Chamber in any dispute of which they are parties. By the same token, it may reasonably be argued that ITLOS would not be acting beyond its intended scope if it agreed to serve as the judicial body for the settlement of disputes arising under an agreement relating to other maritime activities, at the express invitation of the arties to such an agreement.

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Advantages of Using ITLOS for the Settlement of Maritime Disputes

In considering whether to designate ITLOS as the forum for the settlement of disputes, States and other entities concluding maritime law agreements will, no doubt, wish to have some idea of the advantages or disadvantages of such a procedure. As a matter of fact, using ITLOS as a forum for the settlement of disputes offers a number of advantages. One major benefit is a saving in time and expense. It would require much less time to put a panel in place than would be the case in selecting an arbitral tribunal. This would be so even if the parties to the agreement decided not to use the full bench of the 21 judges of ITLOS. As an alternative, the parties could select a chamber to deal with the dispute. The Statute of ITLOS provides for the establishment of chambers to deal with specific categories of disputes23. Two such chambers have already been established.24 An agreement conferring jurisdiction on the Tribunal could stipulate that disputes under the agreement should be submitted to one or other of these chambers, or to a special chamber established for those disputes. Moreover, the Statute of ITLOS requires ITLOS to form a special chamber for dealing with a particular dispute submitted to it, if the parties so request. The composition of such a chamber is to be determined by the Tribunal with the approval of the parties.25 Accordingly, a dispute arising under an agreement conferring jurisdiction on ITLOS could be submitted to a special chamber if the Agreement so provides or if the parties in the particular dispute so require. Such an arrangement would give to the parties to the agreement, or the parties in a particular dispute, the ability to influence the composition of the chamber to sit on the case, in the same way as they would have in choosing an arbitral tribunal. 23 24 25

ITLOS Statute, Art. 15, paragraph 1. These are the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes. Op. Cit. 24, Art. 15, paragraph 2.

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But whatever may be the preference of the parties regarding the composition of a chamber, the choice of members of a chamber would be far simpler than the constitution of an arbitral tribunal. The members would be selected from a relatively small pool and the procedure would have a single focal point at the seat of ITLOS. In addition, the judges selected to the chamber would be ready to deal with the case without delay since they are required to be available for the business ITLOS at all times. Finally, the Rules of ITLOS place special emphasis on speedy proceedings26. The record of the Tribunal so far confirms that it can be relied upon to satisfy that requirement. Thus, the parties which choose to use the Tribunal will be assured that their dispute will be settled with the minimum of delay. Using ITLOS would also reduce considerably the legal and related costs of the proceedings. The parties would not have to pay any “fees” to the judges of ITLOS, as they would be required to do if the dispute were submitted to arbitrators. It is true that the Statute of the Tribunal provides that an entity other than a State Party which uses the services of the Tribunal will be required to “contribute towards the expenses of the Tribunal”.27 It is for the Tribunal to determine the nature and scope of the contributions to be made by such entities. However, the contribution required from such entities is likely to be limited to the actual expenses of the Tribunal attributable to the proceedings in the specific case. Hence, it is highly unlikely that the expenses of the parties in a dispute before ITLOS would equal, let alone exceed, what they might expect to pay if they chose to settle the dispute through regular commercial arbitration. In addition to the savings in time and expense, the parties appearing before ITLOS would also benefit from the fact that they will be dealing with one point of contact throughout the entire proceedings. In this connection it may not be altogether insignificant to call attention to the special advantages offered by the location of ITLOS in the City of Hamburg. Apart from the fact that it is in easy communication maritime centres in Europe and across the Atlantic, Hamburg also has a long tradition in maritime law and maritime arbitration. It has a number of specialized maritime law firms many of whose members are proficient in English and French. This means that parties in cases before ITLOS, and their counsel and advocates, will not find it difficult to secure facilities and professional assistance at short notice. Finally, parties which use ITLOS for the settlement of disputes under “private law” maritime agreements would have the possible advantage of a “standing” judicial mechanism which can be expected in time to develop specialized expertise in the subject matters of the respective agreements, and to establish a consistent and clearly identifiable jurisprudence in the subject areas covered by the agreements. This could provide useful guide and assistance to the parties in formulating future agreements, and thus help them to avoid or reduce disputes. 26 27

Ibid., Art. 49 reads:“The proceedings before the Tribunal shall be conducted without unnecessary delay or expense”. Ibid., Art. 19, paragraph 2.