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ICSID (International Centre for Settlement of Investment Disputes) Rules of Procedure for Arbitration Proceedings (1984)

Chapter I Establishment of the Tribunal

1.

Upon notification of the registration of the request for arbitration, the parties shall, with all possible dispatch, proceed to constitute a Tribunal, with due regard to Section 2 of Chapter IV of the Convention.

2.

Unless such information is provided in the request, the parties shall communicate to the Secretary-General as soon as possible any provisions agreed by them regarding the number of arbitrators and the method of their appointment.

4.

No person who had previously acted as a conciliator or arbitrator in any proceeding for the settlement of the dispute may be appointed as a member of the Tribunal.

b.

within 20 days after receipt of the proposals made by the requesting party, the other party shall:

i.

accept such proposals; or

ii.

make other proposals regarding the number of arbitrators and the method of their appointment;

c.

within 20 days after receipt of the reply containing any such other proposals, the requesting party shall notify the other party whether it accepts or rejects such proposals.

ii.

invite the other party to concur in the appointment of the arbitrator proposed to be the President of the Tribunal and to appoint another arbitrator;

b.

promptly upon receipt of this communication the other party shall, in its reply:

i.

name a person as the arbitrator appointed by it, who shall not have the same nationality as nor be a national of either party; and

ii.

concur in the appointment of the arbitrator proposed to be the President of the Tribunal or name another person as the arbitrator proposed to be President;

c.

promptly upon receipt of the reply containing such a proposal, the initiating party shall notify the other party whether it concurs in the appointment of the arbitrator proposed by that party to be the President of the Tribunal.

2.

The communications provided for in this Rule 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.

2.

The provision of paragraph (1) shall apply mutatis mutandis in the event that the parties have agreed that the arbitrators shall elect the President of the Tribunal and they fail to do so.

3.

The Secretary-General shall forthwith send a copy of the request to the other party.

5.

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

3.

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.

Rule 7 Replacement of Arbitrators

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 procedure of such replacement shall be in accordance with Rules 1, 5 and 6.

1.

If an arbitrator becomes incapacitated or unable to perform the duties of his office, the procedure in respect of the disqualification of arbitrators set forth in Rule 9 shall apply.

a.

transmit the proposal to the members of the Tribunal and, if it relates to a sole arbitrator or to a majority of the members of the Tribunal, to the Chairman of the Administrative Council: and

b.

at the request of either party, to fill any other vacancy, if no new appointment is made and accepted within 30 days of the notification of the vacancy by the Secretary-General.

3.

The procedure for filling a vacancy shall be in accordance with Rules 1, 4(4), 4(5), 5 and, mutatis mutandis, 6(2).

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.

Chapter II Working of the Tribunal

3.

The Tribunal shall meet at the seat of the Centre or at such other place as may have been agreed by the parties in accordance with Article 63 of the Convention. If the parties agree that the proceeding shall be held at a place other than the Centre or an institution with which the Centre has made the necessary arrangements, they shall consult with the Secretary-General and request the approval of the Tribunal. Failing such approval, the Tribunal shall meet at the seat of the Centre.

4.

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.

1.

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

3.

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

2.

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

1.

Decisions of the Tribunal shall be taken by a majority of the votes of all its members. Abstention 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 Secretary-General had received the notice of their acceptance of their appointment to the Tribunal.

1.

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

2.

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.

Chapter III General Procedural Provisions

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

a.

the number of members of the Tribunal required to constitute a quorum at its sittings;

b.

the language or languages to be used in the proceeding;

c.

the number and sequence of the pleadings and the time limits within which they are to be filed;

d.

the number of copies desired by each party of instruments filed by the other;

e.

dispensing with the written or the oral procedure;

f.

the manner in which the cost of the proceeding is to be apportioned; and

g.

the manner in which the record of the hearings shall be kept.

1.

At the request of the Secretary-General or at the discretion of the President of the Tribunal, a pre-hearing conference between the Tribunal and the parties may be held to arrange for an exchange of information and the stipulation of uncontested facts in order to expedite the proceeding.

2.

At the request of the parties, a pre-hearing conference between the Tribunal and the parties, duly represented by their authorized representatives, may be held to consider the issues in dispute with a view to reaching an amicable settlement.

1.

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 (i.e. English, French and Spanish) for this purpose.

2.

If two procedural languages are selected by the parties, any instruments may be filed in either language. Either language may be used at the hearings, subject, if the Tribunal so requires, to translation and interpretation. The orders and the award of the Tribunal shall be rendered and the record kept in both procedural languages, both versions being equally authentic.

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

a.

before the number of members of the Tribunal has been determined: five;

b.

after the number of members of the Tribunal has been determined: two more than the number of its members.

Supporting documentation shall ordinarily be filed together with the instrument to which it relates, and in any case within the time limit fixed for the filing of such instrument.

An accidental error in any instrument or supporting document may, with the consent of the other party or by leave of the Tribunal, be corrected at any time before the award is rendered.

A party which knows or should have known that a provision of the Administrative and Financial Regulations, 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—subject to Article 45 of the Convention—to have waived its right to object.

a.

at any stage of the proceeding, the portion which each party shall pay, pursuant to Administrative and Financial Regulation 14, of the fees and expenses of the Tribunal and the charges for the use of the facilities of the Centre;

Chapter IV Written and Oral Procedures

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

Rule 30 Transmission of the Request

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

1.

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

a.

a memorial by the requesting party;

b.

a counter-memorial by the other party;

and, if the parties so agree or the Tribunal deems it necessary:

c.

a reply by the requesting party; and

d.

a rejoinder by the other party.

2.

If the request was made jointly, each party shall, within the same time limit determined by the Tribunal, file its memorial and, if the parties so agree or the Tribunal deems it necessary, its reply; however, the parties may instead agree that one of them shall, for the purposes of paragraph (1), be considered as the requesting party.

1.

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

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.

b.

visit any place connected with the dispute or conduct inquiries there.

4.

Expenses incurred in producing evidence and in taking other measures in accordance with paragraph (2) shall be deemed to constitute part of the expenses incurred by the parties within the meaning of Article 61(2) of the Convention.

1.

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.

2.

Each witness shall make the following declaration before giving his evidence:

“I solemnly declare upon my honour and conscience that I shall speak the truth, the whole truth and nothing but the truth.”

3.

Each expert shall make the following declaration before making his statement:

“I solemnly declare upon my honour and conscience that my statement will be in accordance with my sincere belief.”

Notwithstanding Rule 35 the Tribunal may:

a.

admit evidence given by a witness or expert in a written deposition; and

b.

with the consent of both parties, arrange for the examination of a witness or expert otherwise than before the Tribunal itself. The Tribunal shall define the subject of the examination, the time limit, the procedure to be followed and other particulars. The parties may participate in the examination.

If the Tribunal considers it necessary to visit any place connected with the dispute or to conduct an inquiry there, it shall make an order to this effect. The order shall define the scope of the visit or the subject of the inquiry, the time limit, the procedure to be followed and other particulars. The parties may participate in any visit or inquiry.

Chapter V Particular Procedures

4.

The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.

1.

Except as the parties otherwise agree, a party may present an incidental or additional claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is otherwise within the jurisdiction of the Centre.

3.

The Tribunal shall fix a time limit within which the party against which an ancillary claim is presented may file its observations thereon.

1.

If a party (in this Rule called the “defaulting party") fails to appear or to present its case at any stage of the proceeding, the other party may, at any time prior to the discontinuance of the proceeding, request the Tribunal to deal with the questions submitted to it and to render an award.

b.

if that party had failed to appear or present its case at a hearing, fix a new date for the hearing.

The period of grace shall not, without the consent of the other party, exceed 60 days.

3.

After the expiration of the period of grace or when, in accordance with paragraph (2), no such period is granted, the Tribunal shall resume the consideration of the dispute. Failure of the defaulting party to appear or to present its case shall not be deemed an admission of the assertions made by the other party.

4.

The Tribunal shall examine the jurisdiction of the Centre and its own competence in the dispute and, if it is satisfied, 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.

1.

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, shall, at their written request, in an order take note of the discontinuance of the proceeding.

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 other party shall be deemed to have acquiesced in the discontinuance and 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.

Rule 45 Discontinuance for Failure of Parties to Act

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.

Chapter VI The Award

The award (including any individual or dissenting opinion) shall be drawn up and signed within 60 days after the closure of the proceeding. The Tribunal may, however, extend this period by a further 30 days if it would otherwise be unable to draw up the award.

a.

a precise designation of each party;

b.

a statement that the Tribunal was established under the Convention, and a description of the method of its constitution;

c.

the name of each member of the Tribunal, and an identification of the appointing authority of each;

d.

the names of the agents, counsel and advocates of the parties;

e.

the dates and place of the sittings of the Tribunal;

f.

a summary of the proceeding;

h.

the submissions of the parties;

2.

The award shall be signed by the members of the Tribunal who voted for it; the date of each signature shall be indicated.

3.

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.

a.

authenticate the original text of the award and deposit it in the archives of the Centre, together with any individual opinions and statements of dissent; and

2.

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

3.

The Secretary-General shall, upon request, make available to a party additional certified copies of the award.

a.

identify the award to which it relates;

b.

indicate the date of the request;

c.

state in detail:

i.

any question which, in the opinion of the requesting party, the Tribunal omitted to decide in the award; and

ii.

any error in the award which the requesting party seeks to have rectified; and

d.

transmit to each member of the Tribunal a copy of the notice of registration, together with a copy of the request and of any accompanying documentation.

5.

If a request is received by the Secretary-General more than 45 days after the award was rendered, he shall refuse to register the request and so inform forthwith the requesting party.

Chapter VII Interpretation, Revision and Annulment of the Award

a.

identify the award to which it relates;

b.

indicate the date of the application;

i.

in an application for interpretation, the precise points in dispute;

ii.

in an application for revision, pursuant to Article 51(1) of the Convention, the change sought in the award, the discovery of some fact of such a nature as decisively to affect the award, and evidence that when the award was rendered that fact was unknown to the Tribunal and to the applicant, and that the applicant's ignorance of that fact was not due to negligence;

d.

be accompanied by the payment of a fee for lodging the application.

a.

register the application;

b.

notify the parties of the registration; and

c.

transmit to the other party a copy of the application and of any accompanying documentation.

3.

The Secretary-General shall refuse to register an application for:

a.

revision, if, in accordance with Article 51(2) of the Convention, it is not made within 90 days after the discovery of the new fact and in any event within three years after the date on which the award was rendered (or any subsequent decision or correction);

b.

annulment, if, in accordance with Article 52(2) of the Convention, it is not made:

i.

within 120 days after the date on which the award was rendered (or any subsequent decision or correction) if the application is based on any of the following grounds:

• the Tribunal was not properly constituted;

• the Tribunal has manifestly exceeded its powers;

• there has been a serious departure from a fundamental rule of procedure;

• the award has failed to state the reasons on which it is based;

ii.

in the case of corruption on the part of a member of the Tribunal, within 120 days after discovery thereof, and in any event within three years after the date on which the award was rendered (or any subsequent decision or correction).

4.

If the Secretary-General refuses to register an application for revision, or annulment, he shall forthwith notify the requesting party of his refusal.

1.

Upon registration of an application for the interpretation or revision of an award, the Secretary-General shall forthwith:

a.

transmit to each member of the original Tribunal a copy of the notice of registration, together with a copy of the application and of any accompanying documentation; and

b.

request each member of the Tribunal to inform him within a specified time limit whether that member is willing to take part in the consideration of the application.

1.

Upon registration of an application for the annulment of an award, the Secretary-General shall forthwith request the Chairman of the Administrative Council to appoint an ad hoc Committee in accordance with Article 52(3) of the Convention.

The provisions of these Rules shall apply mutatis mutandis to any procedure relating to the interpretation, revision or annulment of an award and to the decision of the Tribunal or Committee.

5.

The Secretary-General shall promptly notify both parties of the stay of enforcement of any award and of the modification or termination of such a stay, which shall become effective on the date on which he dispatches such notification.

1.

If a Committee annuls part or all of an award, either party may request the resubmission of the dispute to a new Tribunal. Such a request shall be addressed in writing to the Secretary-General and shall:

a.

identify the award to which it relates;

b.

indicate the date of the request;

c.

explain in detail what aspect of the dispute is to be submitted to the Tribunal; and

d.

be accompanied by a fee for lodging the request.

2.

Upon receipt of the request and of the lodging fee, the Secretary-General shall forthwith:

a.

register it in the Arbitration Register;

b.

notify both parties of the registration;

c.

transmit to the other party a copy of the request and of any accompanying documentation; and

d.

invite the parties to proceed, as soon as possible, to constitute a new Tribunal, including the same number of arbitrators, and appointed by the same method, as the original one.

4.

Except as otherwise provided in paragraphs (1) - (3), these Rules shall apply to a proceeding on a resubmitted dispute in the same manner as if such dispute had been submitted pursuant to the Institution Rules.

Chapter VIII General Provisions

Rule 56 Final Provisions

1.

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

2.

These Rules may be cited as the “Arbitration Rules” of the Centre.

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