Closing of the Proceedings

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

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

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”. However, it is for the tribunal to exercise its discretion to determine whether the presentation of the case and the deliberations are completed and closure is warranted.³

Other major arbitral rules, including the ICC and SCC Arbitration Rules, contain similar provisions to ICSID Arbitration Rule 38.⁴

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

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

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.

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

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

All major arbitral rules empower tribunals exceptionally to reopen proceedings.

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

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

Other rules contain broader provisions enabling the reopening of proceedings in “exceptional circumstances”¹⁸ or “when truly necessary”.¹⁹ Finally, some rules leave the reopening of proceedings entirely at the tribunal’s discretion.²⁰

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 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.

Requests to reopen the proceedings have been denied in cases where inter alia:

1. The relevant issues were already sufficiently addressed during the proceedings;²⁵
2. The submission could not be qualified as “new evidence”;²⁶ and
3. The new evidence was irrelevant to the outcome of the case.²⁷

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

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

Other ICSID ad hoc Committees have held that the party that did not request the reopening of the proceedings or the revision of the award on the basis of new evidence on the impartiality or independence of an arbitrator may not request the annulment of the award for improper constitution of the tribunal.³²