ICSID Arbitration Additional Facility Rules 1978

Where the parties to a dispute have agreed that it shall be referred to arbitration under the Arbitration (Additional Facility) Rules, the dispute shall be settled in accordance with these Rules, save that if any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.

The notice may be given jointly by the parties to the dispute.

The notice shall in addition set forth any provisions agreed by the parties regarding the number of arbitrators and the method of their appointment, as well as any other provisions agreed concerning the settlement of the dispute.

The notice shall be accompanied by five additional signed copies and by the fee prescribed by Article 5 of the Administrative and Financial Rules (Additional Facility).

As soon as the Secretary-General shall have satisfied himself that the notice conforms in form and substance to the provisions of Article 3 of these Rules, he shall register the notice in the Arbitration (Additional Facility) Register and on the same day dispatch to the parties a certificate of registration. He shall also transmit a copy of the notice and of the accompanying documentation (if any) to the other party to the dispute (hereinafter called the "Respondent").

The certificate of registration of a notice shall:

In the absence of agreement between the parties regarding the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the President of the Tribunal, appointed by agreement of the parties, all in accordance with Article 10 of these Rules.

Upon the dispatch of the certificate of registration of the notice for arbitration, the parties shall promptly proceed to constitute a Tribunal.

The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree.

If the Tribunal shall not have been constituted within 90 days after the certificate of registration of the notice for arbitration has been dispatched by the Secretary-General, or such other period as the parties may agree, the Chairman of the Administrative Council (hereinafter called the "Chairman") shall, at the request of either party transmitted through the Secretary-General, appoint the arbitrator or arbitrators not yet appointed and, unless the President shall already have been designated or is to be designated later, designate an arbitrator to be President of the Tribunal.

Except as the parties shall otherwise agree, no person who had previously acted as a conciliator or arbitrator in any proceeding for the settlement of the dispute or as a member of any fact-finding committee relating thereto may be appointed as a member of the Tribunal.

Except where the sole arbitrator or each individual member of the Tribunal is appointed by agreement of the parties, the majority of the arbitrators shall be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute. Accordingly, nationals of the State party to the dispute or of the State whose national is a party to the dispute may be appointed by a party only if appointment by the other party to the dispute of the same number of arbitrators of either of these nationalities would not result in a majority of arbitrators of these nationalities.

Arbitrators appointed by the Chairman shall not be nationals of the State party to the dispute or of the State whose national is a party to the dispute.

Notwithstanding the provisions of Article 6 (4) of these Rules, if the notice for arbitration relates to a dispute arising under any investment or agreement financed in whole or in part by the International Bank for Reconstruction and Development, the International Finance Corporation or the International Development Association, the Secretary-General shall so inform the Chairman, and the Chairman shall, when required to take any action pursuant to these Rules, select a person to whom he shall promptly delegate all the functions, responsibilities and powers assigned to the Chairman hereunder. The Secretary-General shall promptly inform the parties of any action taken pursuant to this Article.

Arbitrators shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment.

The communications provided for in paragraph (1) of this Article shall be made or promptly confirmed in writing and shall either be transmitted through the Secretary-General or directly between the parties with a copy to the Secretary-General.

Promptly upon receipt of a request by a party to the Chairman to make an appointment or designation pursuant to Article 6 (4) of these Rules, the Secretary-General shall send a copy thereof to the other party.

The Chairman shall use his best efforts to comply with that request within 30 days after its receipt, or such longer period as the parties may agree. Before he proceeds to make appointments or a designation, he shall consult both parties as far as possible.

The Secretary-General shall promptly notify the parties of any appointment or designation made by the Chairman.

The party or parties concerned shall notify the Secretary-General of the appointment of each arbitrator and indicate the method of his appointment.

As soon as the Secretary-General has been informed by a party or the Chairman of the appointment of an arbitrator, he shall seek an acceptance from the appointee.

If an arbitrator fails to accept his appointment within 15 days, the Secretary-General shall promptly notify the parties, and if appropriate the Chairman, and invite them to proceed to the appointment of another arbitrator in accordance with the method followed for the previous appointment.

At any time before the Tribunal is constituted, each party may replace any arbitrator appointed by it and the parties may by common consent agree to replace any arbitrator.

The Tribunal shall be deemed to be constituted and the proceeding to have begun on the date the Secretary-General notifies the parties that all the arbitrators have accepted their appointment.

After a Tribunal has been constituted and proceedings have begun, its composition shall remain unchanged; provided, however, that if an arbitrator should die, become incapacitated, resign or be disqualified, the resulting vacancy shall be filled as provided in this Article and Article 18 of these Rules.

An arbitrator who becomes incapacitated shall, as soon as possible, notify the other members of the Tribunal, and the Secretary-General thereof.

A party may propose to a Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by Article 9 of these Rules, or on the ground that he was ineligible for appointment to the Tribunal under Article 7 of these Rules.

The Secretary-General shall forthwith:

The arbitrator to whom the proposal relates may, without delay, furnish explanations to the Tribunal or the Chairman, as the case may be.

The decision on any proposal to disqualify an arbitrator shall be taken by the other members of the Tribunal except that where those members are equally divided, or in the case of a proposal to disqualify a sole arbitrator, or a majority of the arbitrators, the Chairman shall take that decision.

Whenever the Chairman has to decide on a proposal to disqualify an arbitrator, he shall take that decision within 30 days after he has received the proposal.

The proceeding shall be suspended until a decision has been taken on the proposal.

The Secretary-General shall forthwith notify the parties and, if necessary, the Chairman of the disqualification, death, incapacity or resignation of an arbitrator and of the consent, if any, of the Tribunal to a resignation.

Upon the notification by the Secretary-General of a vacancy on the Tribunal, the proceeding shall be or remain suspended until the vacancy has been filled.

Except as provided in paragraph 2 of this Article, a vacancy resulting from the disqualification, death, incapacity or resignation of an arbitrator shall be promptly filled by the same method by which his appointment had been made.

In addition to filling vacancies relating to arbitrators appointed by him, the Chairman shall:

In filling a vacancy the party or the Chairman, as the case may be, shall observe the provisions of these Rules with respect to the appointment of arbitrators. Article 14 (2) of these Rules shall apply mutatis mutandis to the newly appointed arbitrator.

As soon as a vacancy on the Tribunal has been filled, the proceeding shall continue from the point it had reached at the time the vacancy occurred. The newly appointed arbitrator may, however, require that the oral procedure be recommenced, if this had already been started.

Arbitration proceedings shall be held only in States that are parties to the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Subject to Article 20 of these Rules the place of arbitration shall be determined by the Arbitral Tribunal after consultation with the parties and the Secretariat.

The award shall be made at the place of arbitration.

The Tribunal shall meet for its first session within 60 days after its constitution or such other period as the parties may agree. The dates of that session shall be fixed by the President of the Tribunal after consultation with its members and the Secretariat, and with the parties as far as possible. If, upon its constitution, the Tribunal has no President, such dates shall be fixed by the Secretary-General after consultation with the members of the Tribunal, and with the parties as far as possible.

Subsequent sessions shall be convened by the President within time limits determined by the Tribunal. The dates of such sessions shall be fixed by the President of the Tribunal after consultation with its members and the Secretariat, and with the parties as far as possible.

The Secretary-General shall notify the members of the Tribunal and the parties of the dates and place of the sessions of the Tribunal in good time.

The President of the Tribunal shall conduct its hearings and preside at its deliberations.

Except as the parties otherwise agree, the presence of a majority of the members of the Tribunal shall be required at its sittings.

The President of the Tribunal shall fix the date and hour of its sittings.

Only members of the Tribunal shall take part in its deliberations. No other person shall be admitted unless the Tribunal decides otherwise.

Any award or other decision of the Tribunal shall be made by a majority of the votes of all its members. Abstention by any member of the Tribunal shall count as a negative vote.

If at any time the President of the Tribunal should be unable to act, his functions shall be performed by one of the other members of the Tribunal, acting in the order in which the Secretariat had received the notice of their acceptance of their appointment to the Tribunal.

Each party may be represented or assisted by agents, counsel or advocates whose names and authority shall be notified by that party to the Secretariat, which shall promptly inform the Tribunal and the other party.

For the purposes of these Rules, the expression "party" includes, where the context so admits, an agent, counsel or advocate authorized to represent that party.

The Tribunal shall make the orders required for the conduct of the proceeding.

As early as possible after the constitution of a Tribunal, its President shall endeavor to ascertain the views of the parties regarding questions of procedure. For this purpose he may request the parties to meet him. He shall, in particular, seek their views on the following matters:

In the conduct of the proceeding the Tribunal shall apply any agreement between the parties on procedural matters, which is not inconsistent with any provisions of these Rules, the Additional Facility Rules and the Administrative and Financial Rules (Additional Facility).

The parties may agree on the use of one or two languages to be used in the proceeding, provided that if they agree on any language that is not an official language of the Centre, the Tribunal, after consultation with the Secretary-General, gives its approval. If the parties do not agree on any such procedural language, each of them may select one of the official languages for this purpose. Notwithstanding the foregoing, one of the official languages of the Centre shall be used for all communications to and from the Secretariat.

If the parties agree on two procedural languages, or each party selects a different one, any instrument may be filed in either such language. Statements made before the Tribunal or by one of its members in one procedural language shall, unless the Tribunal decides to dispense therewith, be interpreted into the other procedural language. The orders and the award of the Tribunal shall be rendered and the minutes kept in both procedural languages, both versions being equally authentic.

The Tribunal may authorize the use of a language other than a procedural language for a specified part of the proceeding. In such event it shall determine to what extent translation and interpretation into and from the procedural language or languages is required.

If a party uses a language other than an official language of the Centre, it shall be wholly responsible for the arrangements for and the special expenses incurred by any translation and interpretation into and from that language.

Except as otherwise provided by the Tribunal after consultation with the parties and the Secretariat, every notice, request, pleading, application, written observation or other instrument shall be filed in the form of a signed original accompanied by the following number of additional copies:

Documentation filed in support of any notice, request, pleading, application, written observation or other instrument introduced into a proceeding shall consist of one original and of the number of additional copies equal to the number of additional copies required of the instrument to which the documentation relates. The original shall, unless otherwise agreed by the parties or ordered by the Tribunal, consist of the complete document or of a copy or extract duly certified by a public official.

Each document which is not in a language approved for the proceeding in question shall, unless otherwise ordered by the Tribunal, be accompanied by a certified translation into such a language.

All time limits specified in these Rules or fixed by a Tribunal or the Secretary-General shall be computed from the date on which the limit is announced in the presence of the parties or their representatives or on which the Secretary-General dispatches the pertinent notification or instrument (which date shall be marked on it). The day of such announcement or dispatch shall be excluded from the calculation.

A time limit shall be satisfied if a notification or instrument dispatched by a party is delivered at the seat of the Centre, or to the Secretary of a Tribunal that is meeting away from the seat of the Centre, before the close of business on the indicated date or, if that day is a Saturday, a Sunday, a public holiday observed at the place of delivery or a day on which for any reason regular mail delivery is restricted at the place of delivery, then before the close of business on the next subsequent day on which regular mail service is available.

Any step taken after expiration of the applicable time limit shall be disregarded unless the Tribunal, in special circumstances and after giving the other party an opportunity of stating its views, decides otherwise.

A party which knows or ought to have known that a provision of these Rules, of any other rules or agreement applicable to the proceeding, or of an order of the Tribunal has not been complied with and which fails to state promptly its objections thereto, shall be deemed to have waived the right to object.

If any question of procedure arises which is not covered by these Rules or any rules agreed by the parties, the Tribunal shall decide the question.

Except if the parties otherwise agree, the proceeding shall comprise two distinct phases: a written procedure followed by an oral one.

As soon as the Tribunal is constituted, the Secretary-General shall transmit to each member of the Tribunal a copy of the notice by which the proceeding was commenced, of the supporting documentation, of the certificate of registration of notice and of any communication received from either party in response thereto.

In addition to the request for arbitration, the written procedure shall consist of the following pleadings, filed within time limits set by the Tribunal:

If the request was made jointly, each party shall, within the same time limit determined by the Tribunal, file its memorial. However, the parties may instead agree that one of them shall, for the purposes of paragraph (1) of this Article, be considered as the Claimant.

The oral procedure shall consist of the hearing by the Tribunal of the parties, their agents, counsel and advocates, and of witnesses and experts.

The members of the Tribunal may, during the hearings, put questions to the parties, their agents, counsel and advocates, and ask them for explanations.

Without prejudice to the rules concerning the production of documents, each party shall, within time limits fixed by the Tribunal, communicate to the Secretary-General, for transmission to the Tribunal and the other party, precise information regarding the evidence which it intends to produce and that which it intends to request the Tribunal to call for, together with an indication of the points to which such evidence will be directed.

The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value.

Witnesses and experts shall be examined before the Tribunal by the parties under the control of its President. Questions may also be put to them by any member of the Tribunal.

The Tribunal may:

The Secretary-General shall keep minutes of all hearings; these shall include:

The Tribunal may, and at the request of a party shall, order that the hearings be more fully recorded, in which event items (f), (g) and (h) listed in paragraph (1) of this Article may be omitted from the minutes.

When the presentation of the case by the parties is completed, the proceeding shall be declared closed.

Exceptionally, the Tribunal may, before the award has been rendered, reopen the proceeding on the ground that new evidence is forthcoming of such a nature as to constitute a decisive factor, or that there is a vital need for clarification on certain specific points.

The Tribunal shall have the power to rule on its competence. For the purposes of this Article, an agreement providing for arbitration under the Additional Facility shall be separable from the other terms of the contract in which it may have been included.

Any objection that the dispute is not within the competence of the Tribunal shall be filed with the Secretary-General as soon as possible after the constitution of the Tribunal and in any event no later than the expiration of the time limit fixed for the filing of the counter-memorial or, if the objection relates to an ancillary claim, for the filing of the rejoinder—unless the facts on which the objection is based are unknown to the party at that time.

The Tribunal may on its own initiative consider, at any stage of the proceeding, whether the dispute before it is within its competence.

The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.

The Tribunal shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of presenting its observations.

The parties may apply to any competent judicial authority for interim or conservatory measures. By doing so they shall not be held to infringe the agreement to arbitrate or to affect the powers of the Tribunal.

If a party fails to appear or to present its case at any stage of the proceeding, the other party may request the Tribunal to deal with the questions submitted to it and to render an award.

Whenever such a request is made by a party the Tribunal shall promptly notify the defaulting party thereof. Unless the Tribunal is satisfied that that party does not intend to appear or to present its case in the proceeding, it shall, at the same time, grant a period of grace and to this end:

After the expiration of the period of grace or when, in accordance with paragraph (2) of this Article, no such period is granted, the Tribunal shall examine whether the dispute is within its jurisdiction and, if it is satisfied as to its jurisdiction, decide whether the submissions made are well-founded in fact and in law. To this end, it may, at any stage of the proceeding, call on the party appearing to file observations, produce evidence or submit oral explanations.

If, before the award is rendered, the parties agree on a settlement of the dispute or otherwise to discontinue the proceeding, the Tribunal, or the Secretary-General if the Tribunal has not yet been constituted, or has not yet met, shall, at their written request, in an order take note of the discontinuance of the proceeding.

If requested by both parties and accepted by the Tribunal, the Tribunal shall record the settlement in the form of an award. The Tribunal shall not be obliged to give reasons for such an award. The parties will accompany their request with the full and signed text of their settlement.

If a party requests the discontinuance of the proceeding, the Tribunal, or the Secretary-General if the Tribunal has not yet been constituted, shall in an order fix a time limit within which the other party may state whether it opposes the discontinuance. If no objection is made in writing within the time limit, the Tribunal, or if appropriate the Secretary-General, shall in an order take note of the discontinuance of the proceeding. If objection is made, the proceeding shall continue.

If the parties fail to take any steps in the proceeding during six consecutive months or such period as they may agree with the approval of the Tribunal, or of the Secretary-General if the Tribunal has not yet been constituted, they shall be deemed to have discontinued the proceeding and the Tribunal, or if appropriate the Secretary-General, shall, after notice to the parties, in an order take note of the discontinuance.

The award shall be signed by the members of the Tribunal who voted for it; the date of each signature shall be indicated. Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent.

If the arbitration law of the country where the award is made requires that it be filed or registered by the Tribunal, the Tribunal shall comply with this requirement within the period of time required by law.

Upon signature by the last arbitrator to sign, the Secretary-General shall promptly:

The award shall be deemed to have been rendered on the date on which the certified copies were dispatched.

The Tribunal shall apply the rules of law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the Tribunal shall apply (a) the law determined by the conflict of laws rules which it considers applicable and (b) such rules of international law as the Tribunal considers applicable.

The Tribunal may decide ex aequo et bono if the parties have expressly authorized it to do so and if the law applicable to the arbitration so permits.

Within 45 days after the date of the award either party, with notice to the other party, may request that the Secretary-General obtain from the Tribunal an interpretation of the award.

The Tribunal shall determine the procedure to be followed.

The interpretation shall form part of the award, and the provisions of Articles 53 and 54 of these Rules shall apply.

The provisions of Articles 53 and 54 of these Rules shall apply to such corrections.

The Tribunal shall determine the procedure to be followed.

The decision of the Tribunal shall become part of the award and the provisions of Articles 53 and 54 of these Rules shall apply thereto.

The decision of the Tribunal pursuant to paragraph (1) of this Article shall form part of the award.

The text of these Rules in each official language of the Centre shall be equally authentic.