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Auteur

M. Isuru Devendra

Collaborateur (Arbitrage International et Droit International Public) - Latham & Watkins

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Serious departure from a Fundamental Rule of Procedure

I. Definition

II. Basic requirements

2.

Establishing this ground for annulment has two basic requirements, both of which must be met.3 First, the rule of procedure from which there has been a departure must be “fundamental”.4 Second, there must have been a “serious departure” from that fundamental rule.5

A. Fundamental rules of procedure

3.

Fundamental rules of procedure are generally considered to refer to a “set of minimal standards of procedure to be respected as a matter of international law”.6 These minimal standards are often considered to be the rules of natural justice, and said to be the procedural rules “essential to the integrity of the arbitral process and [which] must be observed by all ICSID tribunals”.7

4.

While there is no definitive list of what rules of procedure are “fundamental”, the following rules of procedure have been considered in annulment proceedings.8

i. Equal treatment of the parties

5.

The equal treatment of the parties is widely recognised as a fundamental rule of procedure.9 The rule has been invoked by applicants in a variety of ways.10

ii. Right to be heard

iii. Independence and impartiality of the tribunal

7.

The independence and impartiality of the tribunal is recognised as a fundamental rule of procedure.12 The applicable legal standard is an objective standard – i.e., an arbitrator has a duty to not only be impartial and independent, but also to be perceived as such by an independent and objective third-party observer.13

iv. Burden of proof

v. Other rules of evidence

B. Serious departure

10.

For there to have been a serious departure from a fundamental rule of procedure, the violation of the rule “must have had or may have had a material effect on the tribunal’s decision”.16 While the applicant is not required to establish that the departure would have actually changed the result of the award,17 the “departure must be substantial and be such as to deprive a party of the benefit of the protection which the rule was intended to provide”.18 In other words, observance of the rule had the potential to result in a substantially different outcome.19

III. Other considerations

A. Timely objection to violation of procedure

B. Burden of proof

(Any opinions expressed in this note are that of the author and do not necessarily reflect the views of Latham & Watkins or any other person or entity with whom the author is affiliated. The author thanks Ms. Amaryllis Bernitsa, Trainee Solicitor at Latham & Watkins for her research assistance in preparing this note. Any errors or omissions are the author’s alone.)

Bibliography

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