Author

Mr Roberto Lupini

Associate - Volterra Fietta

Editors
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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

3.

The closing of proceedings is viewed as a mandatory procedural step under most arbitral rules. For example, ICSID Arbitration Rule 38 provides that, “[w]hen the presentation of the case by the parties is completed, the proceeding shall be declared closed”. Other major arbitral rules contain similar provisions.3

4.

By way of contrast, the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules foresee the closing of proceedings as a discretionary matter for the tribunal.4 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

5.

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

6.

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.

7.

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.8 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. 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.9

8.

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”.10

VI. Reopening of proceedings

9.

All major arbitral rules empower tribunals exceptionally to reopen proceedings. For example, ICSID Arbitration Rule 38(2) enables the reopening of proceedings on the basis of: (i) “new evidence”; or (ii) “a vital need for clarification on certain specific points” by the tribunal.11 Other rules contain broader provisions enabling the reopening of proceedings in “exceptional circumstances”12 or “when truly necessary”.13 Finally, some rules leave the reopening of proceedings entirely at the tribunal’s discretion.14

10.

The standard to reopen proceedings on the basis of new evidence is a high one. For example, ICSID tribunals have made clear that, to reopen a proceeding on the basis of new evidence, the existence of such evidence must constitute a “decisive factor”.15 Despite such exacting standard, investors have often sought to reopen proceedings on the basis of new evidence.16 Notably, 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.17

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