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Closing of the Proceedings

I. Introduction

1.

The closing of proceedings is the act by which an arbitral tribunal (or ICSID ad-hoc Committee) declares a proceeding formally closed. The act of closure takes place after the parties have completed the presentation of their cases and before the award is rendered.1

II. Purpose

2.

The main purpose of closing the proceedings is to avoid delays to the arbitral process by late requests and/or submissions.2 

III. Closing of proceedings under the major arbitral rules

A. ICSID arbitration

B. Non-ICSID arbitration

5.

However, and by way of contrast, other rules such as Article 31(1) of the UNCITRAL Arbitration Rules foresees the closing of proceedings as a discretionary matter for the tribunal. Thus, UNCITRAL proceedings can, in principle, conclude without formal closure. That said, the reality is that the majority of UNCITRAL tribunals normally close proceedings before rendering an award.5

IV. Manner in which arbitral proceedings are usually closed

6.

There is no specific formula to close proceedings under any of the major arbitral rules. In practice, arbitral tribunals typically record their decision to close the proceedings in a procedural order6 or a simple communication to the parties.7

V. Effects of closing a proceeding

7.

The precise effects of closing a proceeding vary depending on the applicable rules. However, irrespective of the applicable rules, the closing of proceedings has one main overall effect: it imposes a bar that prevents the parties from making any further submissions and/or submitting new evidence. Prior to the closing of the proceedings, arbitral tribunals remain free to request that parties produce additional information or admit evidence produced by the parties.8 See further Admissibility of evidence.

A. Time-limits in rendering the award

8.

Under certain arbitral rules (e.g., the ICSID, SIAC and CIETAC arbitration rules) the closure of proceedings also triggers a time limit for the tribunal to render its award.9 For example, under ICSID Arbitration Rule 46, tribunals have “120 days after closure of the proceeding” to complete the award with the possibility of extending that timeframe for an additional 60 days.10 It is worth noting that arbitral tribunals have treated this type of rule with certain flexibility. For example, in CDC v. Seychelles, the ad-hoc committee concluded that the tribunal’s failure to issue the relevant award in a timely manner would not have amounted to an annullable error.11

B. Submission of costs

9.

Further, it is also worth noting that, under ICSID Arbitration Rule 28, the closing of proceedings triggers a duty: (i) on the parties to “[p]romptly […] submit to the Tribunal a statement of costs”; and (ii) on ICSID’s Secretary-General to “submit to the Tribunal an account of all amounts paid by each party to the Centre and of all costs incurred by the Centre for the proceeding”.12

VI. Reopening of proceedings

10.

All major arbitral rules empower tribunals exceptionally to reopen proceedings.

A. ICSID arbitration

11.

For example, ICSID Arbitration Rule 38(2) enables the tribunal or ad hoc Committee exceptionally13 to exercise its discretion14 in reopening the proceedings on the basis of: (i) “new evidence”; or (ii) “a vital need for clarification on certain specific points” by the tribunal.15

12.

The first limb of Rule 38(2) is aimed at situations where one of the parties requests the reopening of the case, whereas, the second limb is directed at situations where a tribunal or ad hoc Committee reopens the proceedings on its own initiative.16 It should be noted that the reopening of the case to clarify a point should be limited to that specific clarification.17

B. Non-ICSID arbitration

C. Threshold to reopen proceedings

14.

The standard to reopen proceedings on the basis of new evidence is a high one.

15.

For example, ICSID tribunals have made clear that, to reopen a proceeding on the basis of new evidence, the existence of such evidence must have come to light once the proceedings have been closed21 and constitute a “decisive factor”.22 Despite such exacting standard, investors23 as well as respondent States24 have often sought to reopen proceedings on the basis of new evidence.

17.

In contrast, proceedings have been reopened in cases where inter alia:

  1. The tribunal required the parties’ comments on additional findings of fact;28
  2. The tribunal required clarification on a specific point before rendering the award but no submissions on other points were allowed.29

D. Relationship between the reopening of the proceedings and the annulment or setting aside of awards

18.

In at least one ICSID case, a tribunal’s failure to reopen the proceedings to hear arguments on new evidence led to the annulment of the award for a serious departure from a fundamental rule of procedure. In particular, for a departure from one of the parties’ right to be heard.30 Moreover, certain decisions from domestic courts ruling on the annulment of non-ICSID awards also reflect the close relationship between the reopening of the proceedings and the parties’ rights to be heard.31

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