Unlike the liberal rules for discontinuing litigation in some national court systems, discontinuance in investment arbitration tends to be more restrictive. This note will cover withdrawal of the request for arbitration as well as discontinuance of the proceedings after the registration of the request for arbitration. The ICSID Rules provide the most comprehensive treatment of this topic, as well as the most guidance from the jurisprudence of tribunals interpreting the applicable rules on withdrawal and discontinuance. Other rules, including the UNCITRAL Rules and the rules of the Iran-US Claims Tribunal, are also examined herein.
In ICSID proceedings, a request for arbitration can be unilaterally withdrawn only before its registration.1 Once registered, the request for arbitration can no longer be withdrawn and a claimant seeking to withdraw from the proceedings will need to seek the “discontinuance” of the proceedings. It should be noted the Additional Facility Rules do not contain an analogous provision.2
ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (2006), Rule 8; ; Ambiente Ufficio S.p.A. and others (formerly Giordano Alpi and others) v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013, para. 337; Graña y Montero v. Republic of Peru, Withdrawal of the arbitration request before ICSID.
Article 36 – Request for Arbitration, in Schreuer, C., Malintoppi, L., Reinisch, A. and Sinclair, A. (eds.), The ICSID Convention: A Commentary, Cambridge University Press, 2009, p. 473.
The UNCITRAL Rules (2013) do not contain a provision on the possibility for unilateral withdrawal,3 but at least one tribunal has held that the claimant may not terminate the proceedings based solely on the withdrawal of its notice of arbitration.4
Forminster Enterprises Limited v. The Czech Republic, Final Award, 15 December 2014, para. 51; Canfor Corporation, Terminal Forest Products Ltd., Tembec et al. v. United States of America (Consolidated), Joint Order on the Costs of Arbitration and for the Termination of Certain Arbitral Proceedings, 19 July 2007, para. 149.
The parties may also withdraw some or all of their claims during the arbitration proceedings. The withdrawal of all claims often leads to the discontinuation of the proceedings by settlement.5 The withdrawing party may also agree to withdraw its claim(s) “with prejudice” (waive its right to resubmit the withdrawn claim(s)), in which case the tribunal renders an award dismissing the claims and allocating costs when necessary.6 Tribunals have however considered that the “withdrawal of a claim does not, unless otherwise agreed, amount to a waiver of any underlying rights of the withdrawing party.”7
AngloGold Ashanti (Ghana) Limited v. Republic of Ghana, ICSID Case No. ARB/16/15, Order of the Tribunal Taking Note of the Discontinuance of the Proceeding, paras. 34-35; Canfor Corporation and others v. United States of America, Joint Order of the Costs of Arbitration and for the Termination of Certain Arbitral Proceedings, 19 July 2007, paras. 78-79.
Waste Management v. United Mexican States (II), ICSID Case No. ARB(AF)/00/3, Decision of the Tribunal on Mexico's Preliminary Objection concerning the Previous Proceedings, 26 June 2002, para. 36; Cementownia “Nowa Huta” S.A. v. Republic of Turkey (I), ICSID Case No. ARB(AF)/06/2, Award, 17 September 2009, para. 109; Burlington Resources, Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, paras. 196-197, 199.
See further Discontinuance of ICSID arbitration proceedings.
Discontinuance of ICSID proceedings can occur in three scenarios:
If the parties jointly agree to discontinue the proceedings before the award is rendered, under Rule 55 of the ICSID Arbitration Rules, the tribunal can issue an order taking note of the discontinuance or, if both parties ask and the tribunal agrees, embody the parties’ settlement in an award. It should be noted that under Rules 55(3), the Secretary-General may act for the tribunal if the tribunal has not been constituted.
Pursuant to Rule 56(1), however, if one party requests that the proceedings be discontinued, then the tribunal must issue an order fixing a time limit in which the other party may state whether it opposes the discontinuance. If the other party does not respond within the time limit, then the tribunal or Secretary-General must issue an order noting the discontinuance of the proceedings. This being said, the tribunal lacks the discretion to discontinue the proceedings if a party opposes the discontinuance; if the opposing party objects within the prescribed time limit, the proceedings must continue.
The ICSID Rules on discontinuance cover only the discontinuance of proceedings, not the discontinuance of parties, however tribunals have interpreted the ICSID Arbitration Rules to apply to the withdrawal of parties in multi-party proceedings, leaving the arbitration to continue with respect to the remaining parties.9
Rule 57 of the ICSID Arbitration Rules 2022 modifies the time limits relevant to the discontinuance of the arbitral proceedings for failure of parties to act provided in Rule 45 of the ICSID Arbitration Rules 2006.
See further Discontinuance of non-ICSID proceedings.
The discontinuance of proceedings is also contemplated by the UNCITRAL Arbitration Rules in Article 36. Article 36, however, though containing similar provisions as to joint or unilateral requests for discontinuance as those of Rules 55 and 56 of the ICSID Arbitration Rules, also grants the Tribunal the authority to enter a discontinuance order ex officio should continuation of the arbitral proceedings become “unnecessary or impossible” before the award is made.10
By contrast, the arbitration rules of the Iran-U.S. Claims Tribunal do not limit discontinuance to situations involving joint requests or unopposed requests. Article 34(2) allows a tribunal the discretion to discontinue the proceedings of its own accord if it finds that continuing would be “unnecessary or impossible”.
The ICSID rules on discontinuance apply mutatis mutandis to annulment proceedings and revisions proceedings.11 An award taking note of the discontinuance of the proceedings is technically capable of being annulled, but the grounds for doing so (especially when the discontinuance was agreed) will likely be extremely limited.12
ICSID Rules of Procedure for Arbitration Proceedings (April 2006), Rule 53; ICSID Rules of Procedure for Arbitration Proceedings (July 2022), Rule 72(1); ATA Construction, Industrial and Trading Company v. Hashemite Kingdom of Jordan, ICSID Case No. ARB/08/2, Order Taking Note of the Discontinuance of the Proceeding, 11 July 2011, paras. 36-41.
Article 52 – Annulment, in Schreuer, C., Malintoppi, L., Reinisch, A. and Sinclair, A., The ICSID Convention: A Commentary, Cambridge University Press, 2009, p. 473.
Canfor Corporation, Terminal Forest Products Ltd., Tembec et al. v. United States of America (Consolidated), Joint Order on the Costs of Arbitration and for the Termination of Certain Arbitral Proceedings, 19 July 2007 , para. 149; Silverton Finance Service Inc. v. Dominican Republic, Final Award, 15 March 2017, paras. 55, 59; Václav Fischer v. The Czech Republic (I), PCA Case No. 2019-37, Final Award, 6 May 2020, paras. 46-47.
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