ICSID CONVENTION,
REGULATIONS
AND RULES
International Centre for
Settlement of Investment Disputes
1818 H Street, N.W.
Washington, D.C. 20433, U.S.A.
ICSID/15
April 2006
. Not for resale .
Summary Table of Contents
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Convention on the Settlement of Investment Disputes between
States and Nationals of Other States . . . . . . . . . . . . . . . . . . . . . . . . . 7
Report of the Executive Directors of the International Bank for
Reconstruction and Development on the Convention on the
Settlement of Investment Disputes between States and Nationals
of Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Administrative and Financial Regulations . . . . . . . . . . . . . . . . . . . . 51
Rules of Procedure for the Institution of Conciliation and
Arbitration Proceedings (Institution Rules) . . . . . . . . . . . . . . . . . . 73
Rules of Procedure for Conciliation Proceedings
(Conciliation Rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Rules of Procedure for Arbitration Proceedings
(Arbitration Rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
3
Introduction
The International Centre for Settlement of Investment Disputes
(ICSID or the Centre) is established by the Convention on the Settlement
of Investment Disputes between States and Nationals of Other
States (the ICSID Convention or the Convention). The Convention was
formulated by the Executive Directors of the International Bank for
Reconstruction and Development (the World Bank). On March 18,
1965, the Executive Directors submitted the Convention, with an
accompanying Report, to member governments of the World Bank for
their consideration of the Convention with a view to its signature and
ratification. The Convention entered into force on October 14, 1966,
when it had been ratified by 20 countries. As at April 10, 2006, 143
countries have ratified the Convention to become Contracting States.
In accordance with the provisions of the Convention, ICSID provides
facilities for conciliation and arbitration of investment disputes
between Contracting States and nationals of other Contracting States.
The provisions of the ICSID Convention are complemented by Regulations
and Rules adopted by the Administrative Council of the Centre
pursuant to Article 6(1)(a)–(c) of the Convention (the ICSID Regulations
and Rules).
The ICSID Regulations and Rules comprise Administrative and
Financial Regulations; Rules of Procedure for the Institution of Conciliation
and Arbitration Proceedings (Institution Rules); Rules of Procedure
for Conciliation Proceedings (Conciliation Rules); and Rules of Procedure
for Arbitration Proceedings (Arbitration Rules). The latest amendments
of the ICSID Regulations and Rules adopted by the Administrative
Council of the Centre came into effect on April 10, 2006.
Reprinted in this booklet are the ICSID Convention, the Report of
the Executive Directors of the World Bank on the Convention, and the
ICSID Regulations and Rules as amended effective April 10, 2006.
5
CONVENTION ON THE
SETTLEMENT OF INVESTMENT
DISPUTES BETWEEN STATES AND
NATIONALS OF OTHER STATES
7
Convention
CONVENTION ON THE SETTLEMENT OF
INVESTMENT DISPUTES BETWEEN STATES
AND NATIONALS OF OTHER STATES
Table of Contents
Chapter Section Articles Page
Preamble 11
I International Centre for
Settlement of Investment Disputes 1-24 12
1 Establishment and Organization 1-3 12
2 The Administrative Council 4-8 12
3 The Secretariat 9-11 14
4 The Panels 12-16 15
5 Financing the Centre 17 16
6 Status, Immunities and Privileges 18-24 16
II Jurisdiction of the Centre 25-27 18
III Conciliation 28-35 19
1 Request for Conciliation 28 19
2 Constitution of the Conciliation
Commission 29-31 20
3 Conciliation Proceedings 32-35 20
IV Arbitration 36-55 22
1 Request for Arbitration 36 22
2 Constitution of the Tribunal 37-40 22
3 Powers and Functions of
the Tribunal 41-47 23
4 The Award 48-49 25
5 Interpretation, Revision and
Annulment of the Award 50-52 25
6 Recognition and Enforcement
of the Award 53-55 27
V Replacement and Disqualification
of Conciliators and Arbitrators 56-58 28
VI Cost of Proceedings 59-61 29
VII Place of Proceedings 62-63 30
9
Convention
VIII Disputes Between Contracting
States 64 30
IX Amendment 65-66 30
X Final Provisions 67-75 31
Signature Clause 33
10
Convention
CONVENTION ON THE
SETTLEMENT OF INVESTMENT DISPUTES
BETWEEN STATES AND NATIONALS
OF OTHER STATES
Preamble
The Contracting States
Considering the need for international cooperation for economic
development, and the role of private international investment therein;
Bearing in mind the possibility that from time to time disputes
may arise in connection with such investment between Contracting
States and nationals of other Contracting States;
Recognizing that while such disputes would usually be subject to
national legal processes, international methods of settlement may be
appropriate in certain cases;
Attaching particular importance to the availability of facilities for
international conciliation or arbitration to which Contracting States
and nationals of other Contracting States may submit such disputes if
they so desire;
Desiring to establish such facilities under the auspices of the International
Bank for Reconstruction and Development;
Recognizing that mutual consent by the parties to submit such disputes
to conciliation or to arbitration through such facilities constitutes
a binding agreement which requires in particular that due consideration
be given to any recommendation of conciliators, and that any arbitral
award be complied with; and
Declaring that no Contracting State shall by the mere fact of its ratification,
acceptance or approval of this Convention and without its
consent be deemed to be under any obligation to submit any particular
dispute to conciliation or arbitration,
Have agreed as follows:
11
Convention
Chapter I
International Centre for
Settlement of Investment Disputes
Section 1
Establishment and Organization
Article 1
(1) There is hereby established the International Centre for Settlement
of Investment Disputes (hereinafter called the Centre).
(2) The purpose of the Centre shall be to provide facilities for conciliation
and arbitration of investment disputes between Contracting
States and nationals of other Contracting States in accordance with the
provisions of this Convention.
Article 2
The seat of the Centre shall be at the principal office of the International
Bank for Reconstruction and Development (hereinafter called
the Bank). The seat may be moved to another place by decision of the
Administrative Council adopted by a majority of two-thirds of its
members.
Article 3
The Centre shall have an Administrative Council and a Secretariat
and shall maintain a Panel of Conciliators and a Panel of Arbitrators.
Section 2
The Administrative Council
Article 4
(1) The Administrative Council shall be composed of one representative
of each Contracting State. An alternate may act as representative
in case of his principal’s absence from a meeting or inability to act.
(2) In the absence of a contrary designation, each governor and
alternate governor of the Bank appointed by a Contracting State shall
be ex officio its representative and its alternate respectively.
Article 5
The President of the Bank shall be ex officio Chairman of the
Administrative Council (hereinafter called the Chairman) but shall
12
Convention
have no vote. During his absence or inability to act and during any
vacancy in the office of President of the Bank, the person for the time
being acting as President shall act as Chairman of the Administrative
Council.
Article 6
(1) Without prejudice to the powers and functions vested in it by
other provisions of this Convention, the Administrative Council shall:
(a) adopt the administrative and financial regulations of the
Centre;
(b) adopt the rules of procedure for the institution of conciliation
and arbitration proceedings;
(c) adopt the rules of procedure for conciliation and arbitration
proceedings (hereinafter called the Conciliation Rules
and the Arbitration Rules);
(d) approve arrangements with the Bank for the use of the
Bank’s administrative facilities and services;
(e) determine the conditions of service of the Secretary-General
and of any Deputy Secretary-General;
(f) adopt the annual budget of revenues and expenditures of
the Centre;
(g) approve the annual report on the operation of the Centre.
The decisions referred to in sub-paragraphs (a), (b), (c) and (f)
above shall be adopted by a majority of two-thirds of the members of
the Administrative Council.
(2) The Administrative Council may appoint such committees as it
considers necessary.
(3) The Administrative Council shall also exercise such other
powers and perform such other functions as it shall determine to be
necessary for the implementation of the provisions of this Convention.
Article 7
(1) The Administrative Council shall hold an annual meeting and
such other meetings as may be determined by the Council, or convened
by the Chairman, or convened by the Secretary-General at the request
of not less than five members of the Council.
(2) Each member of the Administrative Council shall have one
vote and, except as otherwise herein provided, all matters before the
Council shall be decided by a majority of the votes cast.
(3) A quorum for any meeting of the Administrative Council shall
be a majority of its members.
13
Convention
(4) The Administrative Council may establish, by a majority of
two-thirds of its members, a procedure whereby the Chairman may
seek a vote of the Council without convening a meeting of the Council.
The vote shall be considered valid only if the majority of the members
of the Council cast their votes within the time limit fixed by the said
procedure.
Article 8
Members of the Administrative Council and the Chairman shall
serve without remuneration from the Centre.
Section 3
The Secretariat
Article 9
The Secretariat shall consist of a Secretary-General, one or more
Deputy Secretaries-General and staff.
Article 10
(1) The Secretary-General and any Deputy Secretary-General shall
be elected by the Administrative Council by a majority of two-thirds of
its members upon the nomination of the Chairman for a term of service
not exceeding six years and shall be eligible for re-election. After
consulting the members of the Administrative Council, the Chairman
shall propose one or more candidates for each such office.
(2) The offices of Secretary-General and Deputy Secretary-General
shall be incompatible with the exercise of any political function. Neither
the Secretary-General nor any Deputy Secretary-General may hold any
other employment or engage in any other occupation except with the
approval of the Administrative Council.
(3) During the Secretary-General’s absence or inability to act, and
during any vacancy of the office of Secretary-General, the Deputy Secretary-General
shall act as Secretary-General. If there shall be more
than one Deputy Secretary-General, the Administrative Council shall
determine in advance the order in which they shall act as Secretary-
General.
Article 11
The Secretary-General shall be the legal representative and the
principal officer of the Centre and shall be responsible for its administration,
including the appointment of staff, in accordance with the provisions
of this Convention and the rules adopted by the Administrative
14
Convention
Council. He shall perform the function of registrar and shall have the
power to authenticate arbitral awards rendered pursuant to this Convention,
and to certify copies thereof.
Section 4
The Panels
Article 12
The Panel of Conciliators and the Panel of Arbitrators shall each
consist of qualified persons, designated as hereinafter provided, who are
willing to serve thereon.
Article 13
(1) Each Contracting State may designate to each Panel four persons
who may but need not be its nationals.
(2) The Chairman may designate ten persons to each Panel. The
persons so designated to a Panel shall each have a different nationality.
Article 14
(1) Persons designated to serve on the Panels 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. Competence in the field of law shall be of particular
importance in the case of persons on the Panel of Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels,
shall in addition pay due regard to the importance of assuring representation
on the Panels of the principal legal systems of the world and
of the main forms of economic activity.
Article 15
(1) Panel members shall serve for renewable periods of six years.
(2) In case of death or resignation of a member of a Panel, the
authority which designated the member shall have the right to designate
another person to serve for the remainder of that member’s term.
(3) Panel members shall continue in office until their successors
have been designated.
Article 16
(1) A person may serve on both Panels.
15
Convention
(2) If a person shall have been designated to serve on the same
Panel by more than one Contracting State, or by one or more Contracting
States and the Chairman, he shall be deemed to have been designated
by the authority which first designated him or, if one such
authority is the State of which he is a national, by that State.
(3) All designations shall be notified to the Secretary-General and
shall take effect from the date on which the notification is received.
Section 5
Financing the Centre
Article 17
If the expenditure of the Centre cannot be met out of charges for
the use of its facilities, or out of other receipts, the excess shall be borne
by Contracting States which are members of the Bank in proportion to
their respective subscriptions to the capital stock of the Bank, and by
Contracting States which are not members of the Bank in accordance
with rules adopted by the Administrative Council.
Section 6
Status, Immunities and Privileges
Article 18
The Centre shall have full international legal personality. The legal
capacity of the Centre shall include the capacity:
(a) to contract;
(b) to acquire and dispose of movable and immovable property;
(c) to institute legal proceedings.
Article 19
To enable the Centre to fulfil its functions, it shall enjoy in the territories
of each Contracting State the immunities and privileges set
forth in this Section.
Article 20
The Centre, its property and assets shall enjoy immunity from all
legal process, except when the Centre waives this immunity.
16
Convention
Article 21
The Chairman, the members of the Administrative Council, persons
acting as conciliators or arbitrators or members of a Committee
appointed pursuant to paragraph (3) of Article 52, and the officers and
employees of the Secretariat
(a) shall enjoy immunity from legal process with respect to
acts performed by them in the exercise of their functions,
except when the Centre waives this immunity;
(b) not being local nationals, shall enjoy the same immunities
from immigration restrictions, alien registration requirements
and national service obligations, the same facilities
as regards exchange restrictions and the same treatment in
respect of travelling facilities as are accorded by Contracting
States to the representatives, officials and employees of
comparable rank of other Contracting States.
Article 22
The provisions of Article 21 shall apply to persons appearing in
proceedings under this Convention as parties, agents, counsel, advocates,
witnesses or experts; provided, however, that sub-paragraph
(b) thereof shall apply only in connection with their travel to and from,
and their stay at, the place where the proceedings are held.
Article 23
(1) The archives of the Centre shall be inviolable, wherever they
may be.
(2) With regard to its official communications, the Centre shall be
accorded by each Contracting State treatment not less favourable than
that accorded to other international organizations.
Article 24
(1) The Centre, its assets, property and income, and its operations
and transactions authorized by this Convention shall be exempt from
all taxation and customs duties. The Centre shall also be exempt from
liability for the collection or payment of any taxes or customs duties.
(2) Except in the case of local nationals, no tax shall be levied on or
in respect of expense allowances paid by the Centre to the Chairman or
members of the Administrative Council, or on or in respect of salaries,
expense allowances or other emoluments paid by the Centre to officials
or employees of the Secretariat.
(3) No tax shall be levied on or in respect of fees or expense
allowances received by persons acting as conciliators, or arbitrators, or
17
Convention
members of a Committee appointed pursuant to paragraph (3) of Article
52, in proceedings under this Convention, if the sole jurisdictional
basis for such tax is the location of the Centre or the place where such
proceedings are conducted or the place where such fees or allowances
are paid.
Chapter II
Jurisdiction of the Centre
Article 25
(1) The jurisdiction of the Centre shall extend to any legal dispute
arising directly out of an investment, between a Contracting State (or
any constituent subdivision or agency of a Contracting State designated
to the Centre by that State) and a national of another Contracting State,
which the parties to the dispute consent in writing to submit to the
Centre. When the parties have given their consent, no party may withdraw
its consent unilaterally.
(2) “National of another Contracting State” means:
(a) any natural person who had the nationality of a Contracting
State other than the State party to the dispute on the
date on which the parties consented to submit such dispute
to conciliation or arbitration as well as on the date on
which the request was registered pursuant to paragraph (3)
of Article 28 or paragraph (3) of Article 36, but does not
include any person who on either date also had the nationality
of the Contracting State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting
State other than the State party to the dispute on
the date on which the parties consented to submit such dispute
to conciliation or arbitration and any juridical person
which had the nationality of the Contracting State party to
the dispute on that date and which, because of foreign control,
the parties have agreed should be treated as a national
of another Contracting State for the purposes of this Con-
vention.
(3) Consent by a constituent subdivision or agency of a Contracting
State shall require the approval of that State unless that State notifies
the Centre that no such approval is required.
(4) Any Contracting State may, at the time of ratification, acceptance
or approval of this Convention or at any time thereafter, notify the
Centre of the class or classes of disputes which it would or would not
consider submitting to the jurisdiction of the Centre. The SecretaryGeneral
shall forthwith transmit such notification to all Contracting
18
Convention
States. Such notification shall not constitute the consent required by
paragraph (1).
Article 26
Consent of the parties to arbitration under this Convention shall,
unless otherwise stated, be deemed consent to such arbitration to the
exclusion of any other remedy. A Contracting State may require the
exhaustion of local administrative or judicial remedies as a condition of
its consent to arbitration under this Convention.
Article 27
(1) No Contracting State shall give diplomatic protection, or bring
an international claim, in respect of a dispute which one of its nationals
and another Contracting State shall have consented to submit or
shall have submitted to arbitration under this Convention, unless such
other Contracting State shall have failed to abide by and comply with
the award rendered in such dispute.
(2) Diplomatic protection, for the purposes of paragraph (1), shall
not include informal diplomatic exchanges for the sole purpose of facilitating
a settlement of the dispute.
Chapter III
Conciliation
Section 1
Request for Conciliation
Article 28
(1) Any Contracting State or any national of a Contracting State
wishing to institute conciliation proceedings shall address a request to
that effect in writing to the Secretary-General who shall send a copy of
the request to the other party.
(2) The request shall contain information concerning the issues in
dispute, the identity of the parties and their consent to conciliation in
accordance with the rules of procedure for the institution of conciliation
and arbitration proceedings.
(3) The Secretary-General shall register the request unless he finds,
on the basis of the information contained in the request, that the dispute
is manifestly outside the jurisdiction of the Centre. He shall forthwith
notify the parties of registration or refusal to register.
19
Convention
Section 2
Constitution of the Conciliation Commission
Article 29
(1) The Conciliation Commission (hereinafter called the Commission)
shall be constituted as soon as possible after registration of a
request pursuant to Article 28.
(2) (a) The Commission shall consist of a sole conciliator or any
uneven number of conciliators appointed as the parties
shall agree.
(b) Where the parties do not agree upon the number of conciliators
and the method of their appointment, the Commission
shall consist of three conciliators, one conciliator
appointed by each party and the third, who shall be the
president of the Commission, appointed by agreement of
the parties.
Article 30
If the Commission shall not have been constituted within 90 days
after notice of registration of the request has been dispatched by the
Secretary-General in accordance with paragraph (3) of Article 28, or
such other period as the parties may agree, the Chairman shall, at the
request of either party and after consulting both parties as far as possible,
appoint the conciliator or conciliators not yet appointed.
Article 31
(1) Conciliators may be appointed from outside the Panel of Conciliators,
except in the case of appointments by the Chairman pursuant
to Article 30.
(2) Conciliators appointed from outside the Panel of Conciliators
shall possess the qualities stated in paragraph (1) of Article 14.
Section 3
Conciliation Proceedings
Article 32
(1) The Commission shall be the judge of its own competence.
(2) Any objection by a party to the dispute that that dispute is not
within the jurisdiction of the Centre, or for other reasons is not within
the competence of the Commission, shall be considered by the Com-
20
Convention
mission which shall determine whether to deal with it as a preliminary
question or to join it to the merits of the dispute.
Article 33
Any conciliation proceeding shall be conducted in accordance with
the provisions of this Section and, except as the parties otherwise agree,
in accordance with the Conciliation Rules in effect on the date on which
the parties consented to conciliation. If any question of procedure arises
which is not covered by this Section or the Conciliation Rules or any
rules agreed by the parties, the Commission shall decide the question.
Article 34
(1) It shall be the duty of the Commission to clarify the issues in
dispute between the parties and to endeavour to bring about agreement
between them upon mutually acceptable terms. To that end, the Commission
may at any stage of the proceedings and from time to time recommend
terms of settlement to the parties. The parties shall cooperate
in good faith with the Commission in order to enable the Commission
to carry out its functions, and shall give their most serious consideration
to its recommendations.
(2) If the parties reach agreement, the Commission shall draw up a
report noting the issues in dispute and recording that the parties have
reached agreement. If, at any stage of the proceedings, it appears to the
Commission that there is no likelihood of agreement between the parties,
it shall close the proceedings and shall draw up a report noting the
submission of the dispute and recording the failure of the parties to
reach agreement. If one party fails to appear or participate in the proceedings,
the Commission shall close the proceedings and shall draw up
a report noting that party’s failure to appear or participate.
Article 35
Except as the parties to the dispute shall otherwise agree, neither
party to a conciliation proceeding shall be entitled in any other proceeding,
whether before arbitrators or in a court of law or otherwise, to
invoke or rely on any views expressed or statements or admissions or
offers of settlement made by the other party in the conciliation proceedings,
or the report or any recommendations made by the Commission.
21
Convention
Chapter IV
Arbitration
Section 1
Request for Arbitration
Article 36
(1) Any Contracting State or any national of a Contracting State
wishing to institute arbitration proceedings shall address a request to
that effect in writing to the Secretary-General who shall send a copy of
the request to the other party.
(2) The request shall contain information concerning the issues in
dispute, the identity of the parties and their consent to arbitration in
accordance with the rules of procedure for the institution of conciliation
and arbitration proceedings.
(3) The Secretary-General shall register the request unless he finds,
on the basis of the information contained in the request, that the dispute
is manifestly outside the jurisdiction of the Centre. He shall forthwith
notify the parties of registration or refusal to register.
Section 2
Constitution of the Tribunal
Article 37
(1) The Arbitral Tribunal (hereinafter called the Tribunal) shall be
constituted as soon as possible after registration of a request pursuant
to Article 36.
(2) (a) The Tribunal shall consist of a sole arbitrator or any uneven
number of arbitrators appointed as the parties shall agree.
(b) Where the parties do not agree upon 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.
Article 38
If the Tribunal shall not have been constituted within 90 days after
notice of registration of the request has been dispatched by the Secretary-General
in accordance with paragraph (3) of Article 36, or such
other period as the parties may agree, the Chairman shall, at the request
of either party and after consulting both parties as far as possible,
22
Convention
appoint the arbitrator or arbitrators not yet appointed. Arbitrators
appointed by the Chairman pursuant to this Article shall not be nationals
of the Contracting State party to the dispute or of the Contracting
State whose national is a party to the dispute.
Article 39
The majority of the arbitrators shall be nationals of States other
than the Contracting State party to the dispute and the Contracting
State whose national is a party to the dispute; provided, however, that
the foregoing provisions of this Article shall not apply if the sole arbitrator
or each individual member of the Tribunal has been appointed
by agreement of the parties.
Article 40
(1) Arbitrators may be appointed from outside the Panel of Arbitrators,
except in the case of appointments by the Chairman pursuant
to Article 38.
(2) Arbitrators appointed from outside the Panel of Arbitrators
shall possess the qualities stated in paragraph (1) of Article 14.
Section 3
Powers and Functions of the Tribunal
Article 41
(1) The Tribunal shall be the judge of its own competence.
(2) Any objection by a party to the dispute that that dispute is not
within the jurisdiction of the Centre, or for other reasons is not within
the competence of the Tribunal, shall be considered by the Tribunal
which shall determine whether to deal with it as a preliminary question
or to join it to the merits of the dispute.
Article 42
(1) The Tribunal shall decide a dispute in accordance with such
rules of law as may be agreed by the parties. In the absence of such
agreement, the Tribunal shall apply the law of the Contracting State
party to the dispute (including its rules on the conflict of laws) and such
rules of international law as may be applicable.
(2) The Tribunal may not bring in a finding of non liquet on the
ground of silence or obscurity of the law.
(3) The provisions of paragraphs (1) and (2) shall not prejudice the
power of the Tribunal to decide a dispute ex aequo et bono if the parties
so agree.
23
Convention
Article 43
Except as the parties otherwise agree, the Tribunal may, if it deems
it necessary at any stage of the proceedings,
(a) call upon the parties to produce documents or other evidence,
and
(b) visit the scene connected with the dispute, and conduct
such inquiries there as it may deem appropriate.
Article 44
Any arbitration proceeding shall be conducted in accordance with
the provisions of this Section and, except as the parties otherwise agree,
in accordance with the Arbitration Rules in effect on the date on which
the parties consented to arbitration. If any question of procedure arises
which is not covered by this Section or the Arbitration Rules or any
rules agreed by the parties, the Tribunal shall decide the question.
Article 45
(1) Failure of a party to appear or to present his case shall not be
deemed an admission of the other party’s assertions.
(2) If a party fails to appear or to present his case at any stage of the
proceedings the other party may request the Tribunal to deal with the
questions submitted to it and to render an award. Before rendering an
award, the Tribunal shall notify, and grant a period of grace to, the party
failing to appear or to present its case, unless it is satisfied that that party
does not intend to do so.
Article 46
Except as the parties otherwise agree, the Tribunal shall, if
requested by a party, determine any incidental or additional claims or
counterclaims arising directly out of the subject-matter of the dispute
provided that they are within the scope of the consent of the parties and
are otherwise within the jurisdiction of the Centre.
Article 47
Except as the parties otherwise agree, the Tribunal may, if it considers
that the circumstances so require, recommend any provisional
measures which should be taken to preserve the respective rights of
either party.
24
Convention
Section 4
The Award
Article 48
(1) The Tribunal shall decide questions by a majority of the votes
of all its members.
(2) The award of the Tribunal shall be in writing and shall be
signed by the members of the Tribunal who voted for it.
(3) The award shall deal with every question submitted to the Tribunal,
and shall state the reasons upon which it is based.
(4) 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.
(5) The Centre shall not publish the award without the consent of
the parties.
Article 49
(1) The Secretary-General shall promptly dispatch certified copies
of the award to the parties. The award shall be deemed to have been rendered
on the date on which the certified copies were dispatched.
(2) The Tribunal upon the request of a party made within 45 days
after the date on which the award was rendered may after notice to the
other party decide any question which it had omitted to decide in the
award, and shall rectify any clerical, arithmetical or similar error in the
award. Its decision shall become part of the award and shall be notified
to the parties in the same manner as the award. The periods of time
provided for under paragraph (2) of Article 51 and paragraph (2) of
Article 52 shall run from the date on which the decision was rendered.
Section 5
Interpretation, Revision and
Annulment of the Award
Article 50
(1) If any dispute shall arise between the parties as to the meaning
or scope of an award, either party may request interpretation of the
award by an application in writing addressed to the Secretary-General.
(2) The request shall, if possible, be submitted to the Tribunal
which rendered the award. If this shall not be possible, a new Tribunal
shall be constituted in accordance with Section 2 of this Chapter. The
25
Convention
Tribunal may, if it considers that the circumstances so require, stay
enforcement of the award pending its decision.
Article 51
(1) Either party may request revision of the award by an application
in writing addressed to the Secretary-General on the ground of discovery
of some fact of such a nature as decisively to affect the award,
provided 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.
(2) The application shall be made within 90 days after the discovery
of such fact and in any event within three years after the date on
which the award was rendered.
(3) The request shall, if possible, be submitted to the Tribunal
which rendered the award. If this shall not be possible, a new Tribunal
shall be constituted in accordance with Section 2 of this Chapter.
(4) The Tribunal may, if it considers that the circumstances so
require, stay enforcement of the award pending its decision. If the applicant
requests a stay of enforcement of the award in his application,
enforcement shall be stayed provisionally until the Tribunal rules on
such request.
Article 52
(1) Either party may request annulment of the award by an application
in writing addressed to the Secretary-General on one or more of
the following grounds:
(a) that the Tribunal was not properly constituted;
(b) that the Tribunal has manifestly exceeded its powers;
(c) that there was corruption on the part of a member of
the Tribunal;
(d) that there has been a serious departure from a fundamental
rule of procedure; or
(e) that the award has failed to state the reasons on which it
is based.
(2) The application shall be made within 120 days after the date on
which the award was rendered except that when annulment is requested
on the ground of corruption such application shall be made within 120
days after discovery of the corruption and in any event within three
years after the date on which the award was rendered.
(3) On receipt of the request the Chairman shall forthwith appoint
from the Panel of Arbitrators an ad hoc Committee of three persons.
None of the members of the Committee shall have been a member of
26
Convention
the Tribunal which rendered the award, shall be of the same nationality
as any such member, shall be a national of the State party to the dispute
or of the State whose national is a party to the dispute, shall have been
designated to the Panel of Arbitrators by either of those States, or shall
have acted as a conciliator in the same dispute. The Committee shall
have the authority to annul the award or any part thereof on any of the
grounds set forth in paragraph (1).
(4) The provisions of Articles 41-45, 48, 49, 53 and 54, and of
Chapters VI and VII shall apply mutatis mutandis to proceedings before
the Committee.
(5) The Committee may, if it considers that the circumstances so
require, stay enforcement of the award pending its decision. If the applicant
requests a stay of enforcement of the award in his application,
enforcement shall be stayed provisionally until the Committee rules on
such request.
(6) If the award is annulled the dispute shall, at the request of
either party, be submitted to a new Tribunal constituted in accordance
with Section 2 of this Chapter.
Section 6
Recognition and Enforcement
of the Award
Article 53
(1) The award shall be binding on the parties and shall not be subject
to any appeal or to any other remedy except those provided for in
this Convention. Each party shall abide by and comply with the terms
of the award except to the extent that enforcement shall have been
stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section,“award”shall include any decision
interpreting, revising or annulling such award pursuant to Articles
50, 51 or 52.
Article 54
(1) Each Contracting State shall recognize an award rendered pursuant
to this Convention as binding and enforce the pecuniary obligations
imposed by that award within its territories as if it were a final
judgment of a court in that State. A Contracting State with a federal
constitution may enforce such an award in or through its federal courts
and may provide that such courts shall treat the award as if it were a
final judgment of the courts of a constituent state.
27
Convention
(2) A party seeking recognition or enforcement in the territories of
a Contracting State shall furnish to a competent court or other authority
which such State shall have designated for this purpose a copy of the
award certified by the Secretary-General. Each Contracting State shall
notify the Secretary-General of the designation of the competent court
or other authority for this purpose and of any subsequent change in
such designation.
(3) Execution of the award shall be governed by the laws concerning
the execution of judgments in force in the State in whose territories
such execution is sought.
Article 55
Nothing in Article 54 shall be construed as derogating from the law
in force in any Contracting State relating to immunity of that State or
of any foreign State from execution.
Chapter V
Replacement and Disqualification
of Conciliators and Arbitrators
Article 56
(1) After a Commission or a Tribunal has been constituted and
proceedings have begun, its composition shall remain unchanged; provided,
however, that if a conciliator or an arbitrator should die, become
incapacitated, or resign, the resulting vacancy shall be filled in accordance
with the provisions of Section 2 of Chapter III or Section 2 of
Chapter IV.
(2) A member of a Commission or Tribunal shall continue to serve
in that capacity notwithstanding that he shall have ceased to be a
member of the Panel.
(3) If a conciliator or arbitrator appointed by a party shall have
resigned without the consent of the Commission or Tribunal of which
he was a member, the Chairman shall appoint a person from the appropriate
Panel to fill the resulting vacancy.
Article 57
A party may propose to a Commission or Tribunal the disqualification
of any of its members on account of any fact indicating a manifest
lack of the qualities required by paragraph (1) of Article 14. A party to
arbitration proceedings may, in addition, propose the disqualification
28
Convention
of an arbitrator on the ground that he was ineligible for appointment to
the Tribunal under Section 2 of Chapter IV.
Article 58
The decision on any proposal to disqualify a conciliator or arbitrator
shall be taken by the other members of the Commission or Tribunal
as the case may be, provided that where those members are equally
divided, or in the case of a proposal to disqualify a sole conciliator or
arbitrator, or a majority of the conciliators or arbitrators, the Chairman
shall take that decision. If it is decided that the proposal is well-founded
the conciliator or arbitrator to whom the decision relates shall be
replaced in accordance with the provisions of Section 2 of Chapter III
or Section 2 of Chapter IV.
Chapter VI
Cost of Proceedings
Article 59
The charges payable by the parties for the use of the facilities of the
Centre shall be determined by the Secretary-General in accordance with
the regulations adopted by the Administrative Council.
Article 60
(1) Each Commission and each Tribunal shall determine the fees
and expenses of its members within limits established from time to
time by the Administrative Council and after consultation with the Sec-
retary-General.
(2) Nothing in paragraph (1) of this Article shall preclude the parties
from agreeing in advance with the Commission or Tribunal concerned
upon the fees and expenses of its members.
Article 61
(1) In the case of conciliation proceedings the fees and expenses of
members of the Commission as well as the charges for the use of the facilities
of the Centre, shall be borne equally by the parties. Each party shall
bear any other expenses it incurs in connection with the proceedings.
(2) In the case of arbitration proceedings the Tribunal shall, except
as the parties otherwise agree, assess the expenses incurred by the parties
in connection with the proceedings, and shall decide how and by
whom those expenses, the fees and expenses of the members of the Tri-
29
Convention
30
Convention
bunal and the charges for the use of the facilities of the Centre shall be
paid. Such decision shall form part of the award.
Chapter VII
Place of Proceedings
Article 62
Conciliation and arbitration proceedings shall be held at the seat of
the Centre except as hereinafter provided.
Article 63
Conciliation and arbitration proceedings may be held, if the parties
so agree,
(a) at the seat of the Permanent Court of Arbitration or of any
other appropriate institution, whether private or public,
with which the Centre may make arrangements for that
purpose; or
(b) at any other place approved by the Commission or Tribunal
after consultation with the Secretary-General.
Chapter VIII
Disputes Between Contracting States
Article 64
Any dispute arising between Contracting States concerning the
interpretation or application of this Convention which is not settled by
negotiation shall be referred to the International Court of Justice by the
application of any party to such dispute, unless the States concerned
agree to another method of settlement.
Chapter IX
Amendment
Article 65
Any Contracting State may propose amendment of this Convention.
The text of a proposed amendment shall be communicated to the
Secretary-General not less than 90 days prior to the meeting of the
Administrative Council at which such amendment is to be considered
31
Convention
and shall forthwith be transmitted by him to all the members of the
Administrative Council.
Article 66
(1) If the Administrative Council shall so decide by a majority of
two-thirds of its members, the proposed amendment shall be circulated
to all Contracting States for ratification, acceptance or approval. Each
amendment shall enter into force 30 days after dispatch by the depositary
of this Convention of a notification to Contracting States that all
Contracting States have ratified, accepted or approved the amendment.
(2) No amendment shall affect the rights and obligations under
this Convention of any Contracting State or of any of its constituent
subdivisions or agencies, or of any national of such State arising out of
consent to the jurisdiction of the Centre given before the date of entry
into force of the amendment.
Chapter X
Final Provisions
Article 67
This Convention shall be open for signature on behalf of States
members of the Bank. It shall also be open for signature on behalf of
any other State which is a party to the Statute of the International Court
of Justice and which the Administrative Council, by a vote of two-thirds
of its members, shall have invited to sign the Convention.
Article 68
(1) This Convention shall be subject to ratification, acceptance or
approval by the signatory States in accordance with their respective
constitutional procedures.
(2) This Convention shall enter into force 30 days after the date of
deposit of the twentieth instrument of ratification, acceptance or
approval. It shall enter into force for each State which subsequently
deposits its instrument of ratification, acceptance or approval 30 days
after the date of such deposit.
Article 69
Each Contracting State shall take such legislative or other measures
as may be necessary for making the provisions of this Convention effective
in its territories.
32
Convention
Article 70
This Convention shall apply to all territories for whose international
relations a Contracting State is responsible, except those which
are excluded by such State by written notice to the depositary of this
Convention either at the time of ratification, acceptance or approval or
subsequently.
Article 71
Any Contracting State may denounce this Convention by written
notice to the depositary of this Convention. The denunciation shall take
effect six months after receipt of such notice.
Article 72
Notice by a Contracting State pursuant to Articles 70 or 71 shall not
affect the rights or obligations under this Convention of that State or of
any of its constituent subdivisions or agencies or of any national of that
State arising out of consent to the jurisdiction of the Centre given by
one of them before such notice was received by the depositary.
Article 73
Instruments of ratification, acceptance or approval of this Convention
and of amendments thereto shall be deposited with the Bank
which shall act as the depositary of this Convention. The depositary
shall transmit certified copies of this Convention to States members of
the Bank and to any other State invited to sign the Convention.
Article 74
The depositary shall register this Convention with the Secretariat of
the United Nations in accordance with Article 102 of the Charter of the
United Nations and the Regulations thereunder adopted by the General
Assembly.
Article 75
The depositary shall notify all signatory States of the following:
(a) signatures in accordance with Article 67;
(b) deposits of instruments of ratification, acceptance and
approval in accordance with Article 73;
(c) the date on which this Convention enters into force in
accordance with Article 68;
(d) exclusions from territorial application pursuant to Article
70;
33
Convention
(e) the date on which any amendment of this Convention
enters into force in accordance with Article 66; and
(f) denunciations in accordance with Article 71.
DONE at Washington, in the English, French and Spanish languages,
all three texts being equally authentic, in a single copy which
shall remain deposited in the archives of the International Bank for
Reconstruction and Development, which has indicated by its signature
below its agreement to fulfil the functions with which it is charged
under this Convention.
REPORT OF THE
EXECUTIVE DIRECTORS ON THE
CONVENTION ON THE SETTLEMENT
OF INVESTMENT DISPUTES
BETWEEN STATES AND
NATIONALS OF OTHER STATES
International Bank for Reconstruction and Development
March 18, 1965
ReportoftheExecutiveDirectors
ontheConvention
35
REPORT OF THE EXECUTIVE DIRECTORS
ON THE CONVENTION
Table of Contents
Section Paragraph Page
I–III 1-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
IV The International Centre for Settlement
of Investment Disputes
15-18 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19 Functions of the Administrative Council . . . . . 42
20 Functions of the Secretary-General . . . . . . . . . . 42
21 The Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
V Jurisdiction of the Centre
22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
23-25 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
26-27 Nature of the Dispute . . . . . . . . . . . . . . . . . . . . . 44
28-30 Parties to the Dispute . . . . . . . . . . . . . . . . . . . . . 44
31 Notifications by Contracting States . . . . . . . . . . 44
32 Arbitration as Exclusive Remedy . . . . . . . . . . . . 45
33 Claims by the Investor’s State . . . . . . . . . . . . . . . 45
VI Proceedings under the Convention
34 Institution of Proceedings . . . . . . . . . . . . . . . . . 45
35-36 Constitution of Conciliation Commissions
and Arbitral Tribunals . . . . . . . . . . . . . . . . . . . . 46
37-40 Conciliation Proceedings; Powers
and Functions of Arbitral Tribunals . . . . . . . . . 46
41-43 Recognition and Enforcement of
Arbitral Awards . . . . . . . . . . . . . . . . . . . . . . . . . . 47
VII 44 Place of Proceedings . . . . . . . . . . . . . . . . . . . . . . . 48
VIII 45 Disputes Between Contracting States . . . . . . . 48
IX 46 Entry into Force . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ReportoftheExecutiveDirectors
ontheConvention
37
ReportoftheExecutiveDirectors
ontheConvention
38
Report of the Executive Directors
on the Convention on the Settlement
of Investment Disputes between States
and Nationals of Other States
I
1. Resolution No. 214, adopted by the Board of Governors of the
International Bank for Reconstruction and Development on September
10, 1964, provides as follows:
“RESOLVED:
(a) The report of the Executive Directors on “Settlement of
Investment Disputes,” dated August 6, 1964, is hereby
approved.
(b) The Executive Directors are requested to formulate a convention
establishing facilities and procedures which would
be available on a voluntary basis for the settlement of
investment disputes between contracting States and
Nationals of other contracting States through conciliation
and arbitration.
(c) In formulating such a convention, the Executive Directors
shall take into account the views of member governments
and shall keep in mind the desirability of arriving at a text
which could be accepted by the largest possible number of
governments.
(d) The Executive Directors shall submit the text of such a convention
to member governments with such recommendations
as they shall deem appropriate.”
2. The Executive Directors of the Bank, acting pursuant to the
foregoing Resolution, have formulated a Convention on the Settlement
of Investment Disputes between States and Nationals of Other States
and, on March 18, 1965, approved the submission of the text of the
Convention, as attached hereto, to member governments of the Bank.
This action by the Executive Directors does not, of course, imply that
the governments represented by the individual Executive Directors are
committed to take action on the Convention.
3. The action by the Executive Directors was preceded by extensive
preparatory work, details of which are given in paragraphs 6-8
below. The Executive Directors are satisfied that the Convention in the
form attached hereto represents a broad consensus of the views of those
governments which accept the principle of establishing by inter-gov-
ReportoftheExecutiveDirectors
ontheConvention
39
ernmental agreement facilities and procedures for the settlement of
investment disputes which States and foreign investors wish to submit
to conciliation or arbitration. They are also satisfied that the Convention
constitutes a suitable framework for such facilities and procedures.
Accordingly, the text of the Convention is submitted to member governments
for consideration with a view to signature and ratification,
acceptance or approval.
4. The Executive Directors invite attention to the provision of
Article 68(2) pursuant to which the Convention will enter into force as
between the Contracting States 30 days after deposit with the Bank, the
depositary of the Convention, of the twentieth instrument of ratification,
acceptance or approval.
5. The attached text of the Convention in the English, French and
Spanish languages has been deposited in the archives of the Bank, as
depositary, and is open for signature.
II
6. The question of the desirability and practicability of establishing
institutional facilities, sponsored by the Bank, for the settlement
through conciliation and arbitration of investment disputes between
States and foreign investors was first placed before the Board of Governors
of the Bank at its Seventeenth Annual Meeting, held in Washington,
D.C. in September 1962. At that Meeting the Board of Governors,
by Resolution No. 174, adopted on September 18, 1962, requested the
Executive Directors to study the question.
7. After a series of informal discussions on the basis of working
papers prepared by the staff of the Bank, the Executive Directors
decided that the Bank should convene consultative meetings of legal
experts designated by member governments to consider the subject in
greater detail. The consultative meetings were held on a regional basis
in Addis Ababa (December 16-20, 1963), Santiago de Chile (February
3-7, 1964), Geneva (February 17-21, 1964) and Bangkok (April 27-May
1, 1964), with the administrative assistance of the United Nations Economic
Commissions and the European Office of the United Nations,
and took as the basis for discussion a Preliminary Draft of a Convention
on Settlement of Investment Disputes between States and Nationals of
Other States prepared by the staff of the Bank in the light of the discussions
of the Executive Directors and the views of governments. The
meetings were attended by legal experts from 86 countries.
8. In the light of the preparatory work and of the views expressed
at the consultative meetings, the Executive Directors reported to the
Board of Governors at its Nineteenth Annual Meeting in Tokyo, in September
1964, that it would be desirable to establish the institutional
facilities envisaged, and to do so within the framework of an inter-gov-
ReportoftheExecutiveDirectors
ontheConvention
40
ernmental agreement. The Board of Governors adopted the Resolution
set forth in paragraph 1 of this Report, whereupon the Executive Directors
undertook the formulation of the present Convention. With a view
to arriving at a text which could be accepted by the largest possible
number of governments, the Bank invited its members to designate representatives
to a Legal Committee which would assist the Executive
Directors in their task. This Committee met in Washington from
November 23 through December 11, 1964, and the Executive Directors
gratefully acknowledge the valuable advice they received from the representatives
of the 61 member countries who served on the Committee.
III
9. In submitting the attached Convention to governments, the
Executive Directors are prompted by the desire to strengthen the partnership
between countries in the cause of economic development. The
creation of an institution designed to facilitate the settlement of disputes
between States and foreign investors can be a major step toward
promoting an atmosphere of mutual confidence and thus stimulating a
larger flow of private international capital into those countries which
wish to attract it.
10. The Executive Directors recognize that investment disputes are
as a rule settled through administrative, judicial or arbitral procedures
available under the laws of the country in which the investment concerned
is made. However, experience shows that disputes may arise
which the parties wish to settle by other methods; and investment
agreements entered into in recent years show that both States and
investors frequently consider that it is in their mutual interest to agree
to resort to international methods of settlement.
11. The present Convention would offer international methods of
settlement designed to take account of the special characteristics of the
disputes covered, as well as of the parties to whom it would apply. It
would provide facilities for conciliation and arbitration by specially
qualified persons of independent judgment carried out according to
rules known and accepted in advance by the parties concerned. In particular,
it would ensure that once a government or investor had given
consent to conciliation or arbitration under the auspices of the Centre,
such consent could not be unilaterally withdrawn.
12. The Executive Directors believe that private capital will continue
to flow to countries offering a favorable climate for attractive and
sound investments, even if such countries did not become parties to the
Convention or, having joined, did not make use of the facilities of the
Centre. On the other hand, adherence to the Convention by a country
would provide additional inducement and stimulate a larger flow of
private international investment into its territories, which is the primary
purpose of the Convention.
ReportoftheExecutiveDirectors
ontheConvention
41
13. While the broad objective of the Convention is to encourage a
larger flow of private international investment, the provisions of the
Convention maintain a careful balance between the interests of
investors and those of host States. Moreover, the Convention permits
the institution of proceedings by host States as well as by investors and
the Executive Directors have constantly had in mind that the provisions
of the Convention should be equally adapted to the requirements of
both cases.
14. The provisions of the attached Convention are for the most
part self-explanatory. Brief comment on a few principal features may,
however, be useful to member governments in their consideration of
the Convention.
IV
The International Centre for Settlement
of Investment Disputes
General
15. The Convention establishes the International Centre for Settlement
of Investment Disputes as an autonomous international institution
(Articles 18-24). The purpose of the Centre is “to provide facilities
for conciliation and arbitration of investment disputes * * *” (Article
1(2)). The Centre will not itself engage in conciliation or arbitration
activities. This will be the task of Conciliation Commissions and Arbitral
Tribunals constituted in accordance with the provisions of the
Convention.
16. As sponsor of the establishment of the institution the Bank will
provide the Centre with premises for its seat (Article 2) and, pursuant
to arrangements between the two institutions, with other administrative
facilities and services (Article 6(d)).
17. With respect to the financing of the Centre (Article 17), the
Executive Directors have decided that the Bank should be prepared to
provide the Centre with office accommodation free of charge as long as
the Centre has its seat at the Bank’s headquarters and to underwrite,
within reasonable limits, the basic overhead expenditure of the Centre
for a period of years to be determined after the Centre is established.
18. Simplicity and economy consistent with the efficient discharge
of the functions of the Centre characterize its structure. The organs of
the Centre are the Administrative Council (Articles 4-8) and the Secretariat
(Article 9-11). The Administrative Council will be composed of
one representative of each Contracting State, serving without remuneration
from the Centre. Each member of the Council casts one vote and
matters before the Council are decided by a majority of the votes cast
unless a different majority is required by the Convention. The President
ReportoftheExecutiveDirectors
ontheConvention
42
of the Bank will serve ex officio as the Council’s Chairman but will have
no vote. The Secretariat will consist of a Secretary-General, one or more
Deputy Secretaries-General and staff. In the interest of flexibility the
Convention provides for the possibility of there being more than one
Deputy Secretary-General, but the Executive Directors do not now
foresee a need for more than one or two full time high officials of the
Centre. Article 10, which requires that the Secretary-General and any
Deputy Secretary-General be elected by the Administrative Council by
a majority of two-thirds of its members, on the nomination of the
Chairman, limits their terms of office to a period not exceeding six years
and permits their re-election. The Executive Directors believe that the
initial election, which will take place shortly after the Convention will
have come into force, should be for a short term so as not to deprive the
States which ratify the Convention after its entry into force of the possibility
of participating in the selection of the high officials of the
Centre. Article 10 also limits the extent to which these officials may
engage in activities other than their official functions.
Functions of the Administrative Council
19. The principal functions of the Administrative Council are the
election of the Secretary-General and any Deputy Secretary-General,
the adoption of the budget of the Centre and the adoption of administrative
and financial regulations, rules governing the institution of proceedings
and rules of procedure for conciliation and arbitration
proceedings. Action on all these matters requires a majority of twothirds
of the members of the Council.
Functions of the Secretary-General
20. The Convention requires the Secretary-General to perform a
variety of administrative functions as legal representative, registrar and
principal officer of the Centre (Articles 7(1), 11, 16(3), 25(4), 28, 36,
49(1), 50(1), 51(1), 52(1), 54(2), 59, 60(1), 63(b) and 65). In addition,
the Secretary-General is given the power to refuse registration of a
request for conciliation proceedings or arbitration proceedings, and
thereby to prevent the institution of such proceedings, if on the basis of
the information furnished by the applicant he finds that the dispute is
manifestly outside the jurisdiction of the Centre (Article 28(3) and
36(3)). The Secretary-General is given this limited power to “screen”
requests for conciliation or arbitration proceedings with a view to
avoiding the embarrassment to a party (particularly a State) which
might result from the institution of proceedings against it in a dispute
which it had not consented to submit to the Centre, as well as the possibility
that the machinery of the Centre would be set in motion in cases
which for other reasons were obviously outside the jurisdiction of the
ReportoftheExecutiveDirectors
ontheConvention
43
Centre e.g., because either the applicant or the other party was not eligible
to be a party in proceedings under the Convention.
The Panels
21. Article 3 requires the Centre to maintain a Panel of Conciliators
and a Panel of Arbitrators, while Articles 12-16 outline the manner and
terms of designation of Panel members. In particular, Article 14(1)
seeks to ensure that Panel members will possess a high degree of competence
and be capable of exercising independent judgment. In keeping
with the essentially flexible character of the proceedings, the Convention
permits the parties to appoint conciliators and arbitrators from
outside the Panels but requires (Articles 31(2) and 40(2)) that such
appointees possess the qualities stated in Article 14(1). The Chairman,
when called upon to appoint a conciliator or arbitrator pursuant to
Article 30 or 38, is restricted in his choice to Panel members.
V
Jurisdiction of the Centre
22. The term “jurisdiction of the Centre” is used in the Convention
as a convenient expression to mean the limits within which the provisions
of the Convention will apply and the facilities of the Centre will
be available for conciliation and arbitration proceedings. The jurisdiction
of the Centre is dealt with in Chapter II of the Convention (Articles
25-27).
Consent
23. Consent of the parties is the cornerstone of the jurisdiction of
the Centre. Consent to jurisdiction must be in writing and once given
cannot be withdrawn unilaterally (Article 25(1)).
24. Consent of the parties must exist when the Centre is seized
(Articles 28(3) and 36(3)) but the Convention does not otherwise specify
the time at which consent should be given. Consent may be given,
for example, in a clause included in an investment agreement, providing
for the submission to the Centre of future disputes arising out of
that agreement, or in a compromis regarding a dispute which has already
arisen. Nor does the Convention require that the consent of both parties
be expressed in a single instrument. Thus, a host State might in its
investment promotion legislation offer to submit disputes arising out of
certain classes of investments to the jurisdiction of the Centre, and the
investor might give his consent by accepting the offer in writing.
25. While consent of the parties is an essential prerequisite for the
jurisdiction of the Centre, consent alone will not suffice to bring a dispute
within its jurisdiction. In keeping with the purpose of the Con-
ReportoftheExecutiveDirectors
ontheConvention
44
vention, the jurisdiction of the Centre is further limited by reference to
the nature of the dispute and the parties thereto.
Nature of the Dispute
26. Article 25(1) requires that the dispute must be a “legal dispute
arising directly out of an investment.”The expression“legal dispute”has
been used to make clear that while conflicts of rights are within the
jurisdiction of the Centre, mere conflicts of interests are not. The dispute
must concern the existence or scope of a legal right or obligation,
or the nature or extent of the reparation to be made for breach of a legal
obligation.
27. No attempt was made to define the term“investment”given the
essential requirement of consent by the parties, and the mechanism
through which Contracting States can make known in advance, if they
so desire, the classes of disputes which they would or would not consider
submitting to the Centre (Article 25(4)).
Parties to the Dispute
28. For a dispute to be within the jurisdiction of the Centre one of
the parties must be a Contracting State (or a constituent subdivision or
agency of a Contracting State) and the other party must be a “national
of another Contracting State.” The latter term as defined in paragraph
(2) of Article 25 covers both natural persons and juridical persons.
29. It should be noted that under clause (a) of Article 25(2) a natural
person who was a national of the State party to the dispute would
not be eligible to be a party in proceedings under the auspices of the
Centre, even if at the same time he had the nationality of another State.
This ineligibility is absolute and cannot be cured even if the State party
to the dispute had given its consent.
30. Clause (b) of Article 25(2), which deals with juridical persons,
is more flexible. A juridical person which had the nationality of the
State party to the dispute would be eligible to be a party to proceedings
under the auspices of the Centre if that State had agreed to treat it as a
national of another Contracting State because of foreign control.
Notifications by Contracting States
31. While no conciliation or arbitration proceedings could be
brought against a Contracting State without its consent and while no
Contracting State is under any obligation to give its consent to such
proceedings, it was nevertheless felt that adherence to the Convention
might be interpreted as holding out an expectation that Contracting
States would give favorable consideration to requests by investors for
the submission of a dispute to the Centre. It was pointed out in that
connection that there might be classes of investment disputes which
ReportoftheExecutiveDirectors
ontheConvention
45
governments would consider unsuitable for submission to the Centre
or which, under their own law, they were not permitted to submit to the
Centre. In order to avoid any risk of misunderstanding on this score,
Article 25(4) expressly permits Contracting States to make known to
the Centre in advance, if they so desire, the classes of disputes which
they would or would not consider submitting to the Centre. The provision
makes clear that a statement by a Contracting State that it would
consider submitting a certain class of dispute to the Centre would serve
for purposes of information only and would not constitute the consent
required to give the Centre jurisdiction. Of course, a statement excluding
certain classes of disputes from consideration would not constitute
a reservation to the Convention.
Arbitration as Exclusive Remedy
32. It may be presumed that when a State and an investor agree to
have recourse to arbitration, and do not reserve the right to have
recourse to other remedies or require the prior exhaustion of other
remedies, the intention of the parties is to have recourse to arbitration
to the exclusion of any other remedy. This rule of interpretation is
embodied in the first sentence of Article 26. In order to make clear that
it was not intended thereby to modify the rules of international law
regarding the exhaustion of local remedies, the second sentence explicitly
recognizes the right of a State to require the prior exhaustion of
local remedies.
Claims by the Investor’s State
33. When a host State consents to the submission of a dispute with
an investor to the Centre, thereby giving the investor direct access to an
international jurisdiction, the investor should not be in a position to ask
his State to espouse his case and that State should not be permitted to
do so. Accordingly, Article 27 expressly prohibits a Contracting State
from giving diplomatic protection, or bringing an international claim,
in respect of a dispute which one of its nationals and another Contracting
State have consented to submit, or have submitted, to arbitration
under the Convention, unless the State party to the dispute fails to
honor the award rendered in that dispute.
VI
Proceedings under the Convention
Institution of Proceedings
34. Proceedings are instituted by means of a request addressed to
the Secretary-General (Articles 28 and 36). After registration of the
request the Conciliation Commission or Arbitral Tribunal, as the case
ReportoftheExecutiveDirectors
ontheConvention
46
may be, will be constituted. Reference is made to paragraph 20 above on
the power of the Secretary-General to refuse registration.
Constitution of Conciliation Commissions
and Arbitral Tribunals
35. Although the Convention leaves the parties a large measure of
freedom as regards the constitution of Commissions and Tribunals, it
assures that a lack of agreement between the parties on these matters or
the unwillingness of a party to cooperate will not frustrate proceedings
(Articles 29-30 and 37-38, respectively).
36. Mention has already been made of the fact that the parties are
free to appoint conciliators and arbitrators from outside the Panels (see
paragraph 21 above). While the Convention does not restrict the
appointment of conciliators with reference to nationality, Article 39 lays
down the rule that the majority of the members of an Arbitral Tribunal
should not be nationals of the State party to the dispute or of the State
whose national is a party to the dispute. This rule is likely to have the
effect of excluding persons having these nationalities from serving on a
Tribunal composed of not more than three members. However, the rule
will not apply where each and every arbitrator on the Tribunal has been
appointed by agreement of the parties.
Conciliation Proceedings; Powers and
Functions of Arbitral Tribunals
37. In general, the provisions of Articles 32-35 dealing with conciliation
proceedings and of Articles 41-49, dealing with the powers and
functions of Arbitral Tribunals and awards rendered by such Tribunals,
are self-explanatory. The differences between the two sets of provisions
reflect the basic distinction between the process of conciliation which
seeks to bring the parties to agreement and that of arbitration which
aims at a binding determination of the dispute by the Tribunal.
38. Article 41 reiterates the well-established principle that international
tribunals are to be the judges of their own competence and Article
32 applies the same principle to Conciliation Commissions. It is to
be noted in this connection that the power of the Secretary-General to
refuse registration of a request for conciliation or arbitration (see paragraph
20 above) is so narrowly defined as not to encroach on the prerogative
of Commissions and Tribunals to determine their own
competence and, on the other hand, that registration of a request by the
Secretary-General does not, of course, preclude a Commission or Tribunal
from finding that the dispute is outside the jurisdiction of the
Centre.
39. In keeping with the consensual character of proceedings under
the Convention, the parties to conciliation or arbitration proceedings
ReportoftheExecutiveDirectors
ontheConvention
47
may agree on the rules of procedure which will apply in those proceedings.
However, if or to the extent that they have not so agreed the Conciliation
Rules and Arbitration Rules adopted by the Administrative
Council will apply (Articles 33 and 44).
40. Under the Convention an Arbitral Tribunal is required to apply
the law agreed by the parties. Failing such agreement, the Tribunal must
apply the law of the State party to the dispute (unless that law calls for
the application of some other law), as well as such rules of international
law as may be applicable. The term “international law” as used in this
context should be understood in the sense given to it by Article 38(1) of
the Statute of the International Court of Justice, allowance being made
for the fact that Article 38 was designed to apply to inter-State disputes.1
Recognition and Enforcement of Arbitral Awards
41. Article 53 declares that the parties are bound by the award and
that it shall not be subject to appeal or to any other remedy except those
provided for in the Convention. The remedies provided for are revision
(Article 51) and annulment (Article 52). In addition, a party may ask a
Tribunal which omitted to decide any question submitted to it, to supplement
its award (Article 49(2)) and may request interpretation of the
award (Article 50).
42. Subject to any stay of enforcement in connection with any of
the above proceedings in accordance with the provisions of the Convention,
the parties are obliged to abide by and comply with the award
and Article 54 requires every Contracting State to recognize the award
as binding and to enforce the pecuniary obligations imposed by the
award as if it were a final decision of a domestic court. Because of the
different legal techniques followed in common law and civil law jurisdictions
and the different judicial systems found in unitary and federal
or other non-unitary States, Article 54 does not prescribe any particular
method to be followed in its domestic implementation, but requires
each Contracting State to meet the requirements of the Article in accordance
with its own legal system.
43. The doctrine of sovereign immunity may prevent the forced
execution in a State of judgments obtained against foreign States or
1 Article 38(1) of the Statute of the International Court of Justice reads as follows:
“1. The Court, whose function it is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.”
ReportoftheExecutiveDirectors
ontheConvention
48
against the State in which execution is sought. Article 54 requires Contracting
States to equate an award rendered pursuant to the Convention
with a final judgment of its own courts. It does not require them to go
beyond that and to undertake forced execution of awards rendered pursuant
to the Convention in cases in which final judgments could not be
executed. In order to leave no doubt on this point Article 55 provides
that nothing in Article 54 shall be construed as derogating from the law
in force in any Contracting State relating to immunity of that State or
of any foreign State from execution.
VII
Place of Proceedings
44. In dealing with proceedings away from the Centre, Article 63
provides that proceedings may be held, if the parties so agree, at the seat
of the Permanent Court of Arbitration or of any other appropriate
institution with which the Centre may enter into arrangements for that
purpose. These arrangements are likely to vary with the type of institution
and to range from merely making premises available for the proceedings
to the provision of complete secretariat services.
VIII
Disputes Between Contracting States
45. Article 64 confers on the International Court of Justice jurisdiction
over disputes between Contracting States regarding the interpretation
or application of the Convention which are not settled by
negotiation and which the parties do not agree to settle by other methods.
While the provision is couched in general terms, it must be read in
the context of the Convention as a whole. Specifically, the provision
does not confer jurisdiction on the Court to review the decision of a
Conciliation Commission or Arbitral Tribunal as to its competence
with respect to any dispute before it. Nor does it empower a State to
institute proceedings before the Court in respect of a dispute which one
of its nationals and another Contracting State have consented to submit
or have submitted to arbitration, since such proceedings would contravene
the provisions of Article 27, unless the other Contracting State had
failed to abide by and comply with the award rendered in that dispute.
IX
Entry into Force
46. The Convention is open for signature on behalf of States members
of the Bank. It will also be open for signature on behalf of any other
State which is a party to the Statute of the International Court of Justice
and which the Administrative Council, by a vote of two-thirds of its
members, shall have invited to sign. No time limit has been prescribed
for signature. Signature is required both of States joining before the
Convention enters into force and those joining thereafter (Article 67).
The Convention is subject to ratification, acceptance or approval by the
signatory States in accordance with their constitutional procedures
(Article 68). As already stated, the Convention will enter into force
upon the deposit of the twentieth instrument of ratification, acceptance
or approval.
ReportoftheExecutiveDirectors
ontheConvention
49
ADMINISTRATIVE
AND FINANCIAL
REGULATIONS
Administrativeand
FinancialRegulations
51
Administrativeand
FinancialRegulations
53
ADMINISTRATIVE AND
FINANCIAL REGULATIONS
Table of Contents
Chapter Regulation Page
I Procedures of the Administrative Council
1 Date and Place of the Annual Meeting . . . . . . . 55
2 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . 55
3 Agenda for Meetings . . . . . . . . . . . . . . . . . . . . . . 56
4 Presiding Officer . . . . . . . . . . . . . . . . . . . . . . . . . 56
5 Secretary of the Council . . . . . . . . . . . . . . . . . . . 56
6 Attendance at Meetings . . . . . . . . . . . . . . . . . . . 57
7 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
II The Secretariat
8 Election of the Secretary-General
and His Deputies . . . . . . . . . . . . . . . . . . . . . . . . . 58
9 Acting Secretary-General . . . . . . . . . . . . . . . . . . 58
10 Appointment of Staff Members . . . . . . . . . . . . . 59
11 Conditions of Employment . . . . . . . . . . . . . . . . 59
12 Authority of the Secretary-General . . . . . . . . . . 59
13 Incompatibility of Functions . . . . . . . . . . . . . . . 59
III Financial Provisions
14 Direct Costs of Individual Proceedings . . . . . . . 60
15 Special Services to Parties . . . . . . . . . . . . . . . . . . 62
16 Fee for Lodging Requests . . . . . . . . . . . . . . . . . . 62
17 The Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
18 Assessment of Contributions . . . . . . . . . . . . . . . 63
19 Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
IV General Functions of the Secretariat
20 List of Contracting States . . . . . . . . . . . . . . . . . . 64
21 Establishment of Panels . . . . . . . . . . . . . . . . . . . 65
22 Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
V Functions with Respect to
Individual Proceedings
23 The Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
24 Means of Communication . . . . . . . . . . . . . . . . . 67
25 Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
26 Place of Proceedings . . . . . . . . . . . . . . . . . . . . . . 68
Administrativeand
FinancialRegulations
54
27 Other Assistance . . . . . . . . . . . . . . . . . . . . . . . . . 68
28 Depositary Functions . . . . . . . . . . . . . . . . . . . . . 68
VI Special Provisions Relating to Proceedings
29 Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
30 Supporting Documentation . . . . . . . . . . . . . . . . 69
VII Immunities and Privileges
31 Certificate of Official Travel . . . . . . . . . . . . . . . . 70
32 Waiver of Immunities . . . . . . . . . . . . . . . . . . . . . 70
VIII Miscellaneous
33 Communications with Contracting States . . . . 71
34 Official Languages . . . . . . . . . . . . . . . . . . . . . . . . 71
Administrativeand
FinancialRegulations
55
The Administrative and Financial Regulations of ICSID were adopted
by the Administrative Council of the Centre pursuant to Article 6(1)(a) of
the ICSID Convention.
The Regulations of particular interest to parties to proceedings under
the Convention are: 14-16, 22-31 and 34(1). They are intended to be
complementary both to the Convention and to the Institution, Conciliation
and Arbitration Rules adopted pursuant to Article 6(1)(b) and (c) of
the Convention.
Administrative
and Financial Regulations
Chapter I
Procedures of the
Administrative Council
Regulation 1
Date and Place of the Annual Meeting
(1) The Annual Meeting of the Administrative Council shall take
place in conjunction with the Annual Meeting of the Board of Governors
of the International Bank for Reconstruction and Development
(hereinafter referred to as the “Bank”), unless the Council specifies oth-
erwise.
(2) The Secretary-General shall coordinate the arrangements for
the Annual Meeting of the Administrative Council with the appropriate
officers of the Bank.
Regulation 2
Notice of Meetings
(1) The Secretary-General shall, by any rapid means of communication,
give each member notice of the time and place of each meeting
of the Administrative Council, which notice shall be dispatched not less
than 42 days prior to the date set for such meeting, except that in urgent
cases such notice shall be sufficient if dispatched by telegram or cable
not less than 10 days prior to the date set for such meeting.
(2) Any meeting of the Administrative Council at which no
quorum is present may be adjourned from time to time by a majority
of the members present and notice of the adjourned meeting need not
be given.
Administrativeand
FinancialRegulations
56
Regulation 3
Agenda for Meetings
(1) Under the direction of the Chairman, the Secretary-General
shall prepare a brief agenda for each meeting of the Administrative
Council and shall transmit such agenda to each member with the notice
of such meeting.
(2) Additional subjects may be placed on the agenda for any meeting
of the Administrative Council by any member provided that he shall
give notice thereof to the Secretary-General not less than seven days
prior to the date set for such meeting. In special circumstances the
Chairman, or the Secretary-General after consulting the Chairman,
may at any time place additional subjects on the agenda for any meeting
of the Council. The Secretary-General shall as promptly as possible
give each member notice of the addition of any subject to the agenda
for any meeting.
(3) The Administrative Council may at any time authorize any subject
to be placed on the agenda for any meeting even though the notice
required by this Regulation shall not have been given.
Regulation 4
Presiding Officer
(1) The Chairman shall be the Presiding Officer at meetings of the
Administrative Council.
(2) If the Chairman is unable to preside over all or part of a meeting
of the Council, one of the members of the Administrative Council
shall act as temporary Presiding Officer. This member shall be the Representative,
Alternate Representative or temporary Alternate Representative
of that Contracting State represented at the meeting that stands
highest on a list of Contracting States arranged chronologically
according to the date of the deposit of instruments of ratification,
acceptance or approval of the Convention, starting with the State following
the one that had on the last previous occasion provided a temporary
Presiding Officer. A temporary Presiding Officer may cast the
vote of the State he represents, or he may assign another member of his
delegation to do so.
Regulation 5
Secretary of the Council
(1) The Secretary-General shall serve as Secretary of the Administrative
Council.
(2) Except as otherwise specifically directed by the Administrative
Council, the Secretary-General, in consultation with the Chairman,
Administrativeand
FinancialRegulations
57
shall have charge of all arrangements for the holding of meetings of the
Council.
(3) The Secretary-General shall keep a summary record of the proceedings
of the Administrative Council, copies of which shall be
provided to all members.
(4) The Secretary-General shall present to each Annual Meeting of
the Administrative Council, for its approval pursuant to Article 6(1)(g)
of the Convention, the annual report on the operation of the Centre.
Regulation 6
Attendance at Meetings
(1) The Secretary-General and the Deputy Secretaries-General
may attend all meetings of the Administrative Council.
(2) The Secretary-General, in consultation with the Chairman,
may invite observers to attend any meeting of the Administrative Coun-
cil.
Regulation 7
Voting
(1) Except as otherwise specifically provided in the Convention, all
decisions of the Administrative Council shall be taken by a majority of
the votes cast. At any meeting the Presiding Officer may ascertain the
sense of the meeting in lieu of a formal vote but he shall require a
formal vote upon the request of any member. Whenever a formal vote
is required the written text of the motion shall be distributed to the
members.
(2) No member of the Administrative Council may vote by proxy
or by any other method than in person, but the representative of a Contracting
State may designate a temporary alternate to vote for him at
any meeting at which the regular alternate is not present.
(3) Whenever, in the judgment of the Chairman, any action must
be taken by the Administrative Council which should not be postponed
until the next Annual Meeting of the Council and does not warrant the
calling of a special meeting, the Secretary-General shall transmit to each
member by any rapid means of communication a motion embodying
the proposed action with a request for a vote by the members of the
Council. Votes shall be cast during a period ending 21 days after such
dispatch, unless a longer period is approved by the Chairman. At the
expiration of the established period, the Secretary-General shall record
the results and notify all members of the Council. If the replies received
do not include those of a majority of the members, the motion shall be
considered lost.
Administrativeand
FinancialRegulations
58
(4) Whenever at a meeting of the Administrative Council at which
all Contracting States are not represented, the votes necessary to adopt
a proposed decision by a majority of two-thirds of the members of the
Council are not obtained, the Council with the concurrence of the
Chairman may decide that the votes of those members of the Council
represented at the meeting shall be registered and the votes of the
absent members shall be solicited in accordance with paragraph (3) of
this Regulation. Votes registered at the meeting may be changed by the
member before the expiration of the voting period established pursuant
to that paragraph.
Chapter II
The Secretariat
Regulation 8
Election of the Secretary-General
and His Deputies
In proposing to the Administrative Council one or more candidates
for the office of Secretary-General or any Deputy Secretary-General, the
Chairman shall at the same time make proposals with respect to:
(a) the length of the term of service;
(b) approval for any of the candidates to hold, if elected, any
other employment or to engage in any other occupation;
(c) the conditions of service, taking into account any proposals
made pursuant to paragraph (b).
Regulation 9
Acting Secretary-General
(1) If, on the election of a Deputy Secretary-General, there should
at any time be more than one Deputy Secretary-General, the Chairman
shall immediately after such election propose to the Administrative
Council the order in which these Deputies shall act as Secretary-General
pursuant to Article 10(3) of the Convention. In the absence of such
a decision the order shall be that of seniority in the post of Deputy.
(2) The Secretary-General shall designate the member of the staff
of the Centre who shall act for him during his absence or inability to
act, if all Deputy Secretaries-General should also be absent or unable to
act or if the office of Deputy should be vacant. If there should be a
simultaneous vacancy in the offices of Secretary-General and Deputy
Secretary-General, the Chairman shall designate the member of the
staff who shall act for the Secretary-General.
Administrativeand
FinancialRegulations
59
Regulation 10
Appointment of Staff Members
The Secretary-General shall appoint the members of the staff of the
Centre. Appointments may be made directly or by secondment.
Regulation 11
Conditions of Employment
(1) The conditions of service of the members of the staff of the
Centre shall be the same as those of the staff of the Bank.
(2) The Secretary-General shall make arrangements with the
Bank, within the framework of the general administrative arrangements
approved by the Administrative Council pursuant to Article
6(1)(d) of the Convention, for the participation of members of the
Secretariat in the Staff Retirement Plan of the Bank as well as in other
facilities and contractual arrangements established for the benefit of
the staff of the Bank.
Regulation 12
Authority of the Secretary-General
(1) Deputy Secretaries-General and the members of the staff,
whether on direct appointment or on secondment, shall act solely
under the direction of the Secretary-General.
(2) The Secretary-General shall have authority to dismiss members
of the Secretariat and to impose disciplinary measures. In the case of
Deputy Secretaries-General dismissal may only be imposed with the
concurrence of the Administrative Council.
Regulation 13
Incompatibility of Functions
The Secretary-General, the Deputy Secretaries-General and the
members of the staff may not serve on the Panel of Conciliators or of
Arbitrators, or as members of any Commission or Tribunal.
Administrativeand
FinancialRegulations
60
Chapter III
Financial Provisions
Regulation 14
Direct Costs of Individual Proceedings
(1) Unless otherwise agreed pursuant to Article 60(2) of the Convention,
and in addition to receiving reimbursement for any direct
expenses reasonably incurred, each member of a Commission, a Tribunal
or an ad hoc Committee appointed from the Panel of Arbitrators
pursuant to Article 52(3) of the Convention (hereinafter referred to as
“Committee”) shall receive:
(a) a fee for each day on which he participates in meetings of
the body of which he is a member;
(b) a fee for the equivalent of each eight-hour day of other
work performed in connection with the proceedings;
(c) in lieu of reimbursement of subsistence expenses when
away from his normal place of residence, a per diem
allowance based on the allowance established from time to
time for the Executive Directors of the Bank;
(d) travel expenses in connection with meetings of the body of
which he is a member based on the norms established from
time to time for the Executive Directors of the Bank.
The amounts of the fees referred to in paragraphs (a) and (b) above
shall be determined from time to time by the Secretary-General, with
the approval of the Chairman. Any request for a higher amount shall be
made through the Secretary-General.
(2) All payments, including reimbursement of expenses, to the following
shall in all cases be made by the Centre and not by or through
either party to the proceeding:
(a) members of Commissions, Tribunals and Committees;
(b) witnesses and experts summoned at the initiative of a
Commission, Tribunal or Committee, and not of one of the
parties;
(c) members of the Secretariat of the Centre, including persons
(such as interpreters, translators, reporters or secretaries)
especially engaged by the Centre for a particular
proceeding;
(d) the host of any proceeding held away from the seat of the
Centre pursuant to Article 63 of the Convention.
Administrativeand
FinancialRegulations
61
(3) In order to enable the Centre to make the payments provided
for in paragraph (2), as well as to incur other direct expenses in connection
with a proceeding (other than expenses covered by Regulation 15):
(a) the parties shall make advance payments to the Centre as
follows:
(i) initially as soon as a Commission or Tribunal has been
constituted, the Secretary-General shall, after consultation
with the President of the body in question and,
as far as possible, the parties, estimate the expenses
that will be incurred by the Centre during the next
three to six months and request the parties to make an
advance payment of this amount;
(ii) if at any time the Secretary-General determines, after
consultation with the President of the body in question
and as far as possible the parties, that the
advances made by the parties will not cover a revised
estimate of expenses for the period or any subsequent
period, he shall request the parties to make supplementary
advance payments.
(b) the Centre shall not be required to provide any service in
connection with a proceeding or to pay the fees, allowances
or expenses of the members of any Commission, Tribunal
or Committee, unless sufficient advance payments shall
previously have been made;
(c) if the initial advance payments are insufficient to cover estimated
future expenses, prior to requesting the parties to
make additional advance payments, the Secretary-General
shall ascertain the actual expenses incurred and commitments
entered into by the Centre with regard to each proceeding
and shall appropriately charge or credit the parties;
(d) in connection with every conciliation proceeding, and in
connection with every arbitration proceeding unless a different
division is provided for in the Arbitration Rules or is
decided by the parties or the Tribunal, each party shall pay
one half of each advance or supplemental charge, without
prejudice to the final decision on the payment of the cost of
an arbitration proceeding to be made by the Tribunal pursuant
to Article 61(2) of the Convention. All advances and
charges shall be payable, at the place and in the currencies
specified by the Secretary-General, as soon as a request for
payment is made by him. If the amounts requested are not
paid in full within 30 days, then the Secretary-General shall
inform both parties of the default and give an opportunity
to either of them to make the required payment. At any
time 15 days after such information is sent by the Secre-
Administrativeand
FinancialRegulations
62
tary-General, he may move that the Commission or Tribunal
stay the proceeding, if by the date of such motion any
part of the required payment is still outstanding. If any
proceeding is stayed for non-payment for a consecutive
period in excess of six months, the Secretary-General may,
after notice to and as far as possible in consultation with
the parties, move that the competent body discontinue the
proceeding;
(e) in the event that an application for annulment of an award
is registered, the above provisions of this Rule shall apply
mutatis mutandis, except that the applicant shall be solely
responsible for making the advance payments requested by
the Secretary-General to cover expenses following the constitution
of the Committee, and without prejudice to the
right of the Committee in accordance with Article 52(4) of
the Convention to decide how and by whom expenses
incurred in connection with the annulment proceeding
shall be paid.
Regulation 15
Special Services to Parties
(1) The Centre shall only perform any special service for a party in
connection with a proceeding (for example, the provision of translations
or copies) if the party shall in advance have deposited an amount
sufficient to cover the charge for such service.
(2) Charges for special services shall normally be based on a schedule
of fees to be promulgated from time to time by the Secretary-General
and communicated by him to all Contracting States as well as to the
parties to all pending proceedings.
Regulation 16
Fee for Lodging Requests
The party or parties (if a request is made jointly) wishing to institute
a conciliation or arbitration proceeding, requesting a supplementary
decision to, or the rectification, interpretation, revision or
annulment of an arbitral award, or requesting resubmission of a dispute
to a new Tribunal after the annulment of an arbitral award, shall pay to
the Centre a non-refundable fee determined from time to time by the
Secretary-General.
Administrativeand
FinancialRegulations
63
Regulation 17
The Budget
(1) The fiscal year of the Centre shall run from July 1 of each year
to June 30 of the following year.
(2) Before the end of each fiscal year the Secretary-General shall
prepare and submit, for adoption by the Administrative Council at its
next Annual Meeting and in accordance with Article 6(1)(f) of the
Convention, a budget for the following fiscal year. This budget is to
indicate the expected expenditures of the Centre (excepting those to be
incurred on a reimbursable basis) and the expected revenues (excepting
reimbursements).
(3) If, during the course of a fiscal year, the Secretary-General
determines that the expected expenditures will exceed those authorized
in the budget, or if he should wish to incur expenditures not previously
authorized, he shall, in consultation with the Chairman, prepare a supplementary
budget, which he shall submit to the Administrative Council
for adoption, either at the Annual Meeting or at any other meeting,
or in accordance with Regulation 7(3).
(4) The adoption of a budget constitutes authority for the Secretary-General
to make expenditures and incur obligations for the purposes
and within the limits specified in the budget. Unless otherwise
provided by the Administrative Council, the Secretary-General may
exceed the amount specified for any given budget item, provided that
the total amount of the budget is not exceeded.
(5) Pending the adoption of the budget by the Administrative
Council, the Secretary-General may incur expenditures for the purposes
and within the limits specified in the budget he submitted to the
Council, up to one quarter of the amount authorized to be expended in
the previous fiscal year but in no event exceeding the amount that the
Bank has agreed to make available for the current fiscal year.
Regulation 18
Assessment of Contributions
(1) Any excess of expected expenditures over expected revenues
shall be assessed on the Contracting States. Each State that is not a
member of the Bank shall be assessed a fraction of the total assessment
equal to the fraction of the budget of the International Court of Justice
that it would have to bear if that budget were divided only among the
Contracting States in proportion to the then current scale of contributions
applicable to the budget of the Court; the balance of the total
assessment shall be divided among the Contracting States that are
members of the Bank in proportion to their respective subscription to
the capital stock of the Bank. The assessments shall be calculated by the
Administrativeand
FinancialRegulations
64
Secretary-General immediately after the adoption of the annual budget,
on the basis of the then current membership of the Centre, and shall be
promptly communicated to all Contracting States. The assessments
shall be payable as soon as they are thus communicated.
(2) On the adoption of a supplementary budget, the Secretary-General
shall immediately calculate supplementary assessments, which shall
be payable as soon as they are communicated to the Contracting States.
(3) A State which is party to the Convention during any part of a
fiscal year shall be assessed for the entire fiscal year. If a State becomes a
party to the Convention after the assessments for a given fiscal year have
been calculated, its assessment shall be calculated by the application of
the same appropriate factor as was applied in calculating the original
assessments, and no recalculation of the assessments of the other Contracting
States shall be made.
(4) If, after the close of a fiscal year, it is determined that there is a
cash surplus, such surplus shall, unless the Administrative Council
otherwise decides, be credited to the Contracting States in proportion
to the assessed contributions they had paid for that fiscal year. These
credits shall be made with respect to the assessments for the fiscal year
commencing two years after the end of the fiscal year to which the surplus
pertains.
Regulation 19
Audits
The Secretary-General shall have an audit of the accounts of the
Centre made once each year and on the basis of this audit submit a
financial statement to the Administrative Council for consideration at
the Annual Meeting.
Chapter IV
General Functions
of the Secretariat
Regulation 20
List of Contracting States
The Secretary-General shall maintain a list, which he shall transmit
from time to time to all Contracting States and on request to any State
or person, of the Contracting States (including former Contracting
States, showing the date on which their notice of denunciation was
received by the depositary), indicating for each:
Administrativeand
FinancialRegulations
65
(a) the date on which the Convention entered into force with
respect to it;
(b) any territories excluded pursuant to Article 70 of the Convention
and the dates on which the notice of exclusion and
any modification of such notice were received by the
depositary;
(c) any designation, pursuant to Article 25(1) of the Convention,
of constituent subdivisions or agencies to whose
investment disputes the jurisdiction of the Centre extends;
(d) any notification, pursuant to Article 25(3) of the Convention,
that no approval by the State is required for the consent
by a constituent subdivision or agency to the
jurisdiction of the Centre;
(e) any notification, pursuant to Article 25(4) of the Convention,
of the class or classes of disputes which the State
would or would not consider submitting to the jurisdiction
of the Centre;
(f) the competent court or other authority for the recognition
and enforcement of arbitral awards, designated pursuant to
Article 54(2) of the Convention;
(g) any legislative or other measures taken, pursuant to Article
69 of the Convention, for making its provisions effective in
the territories of the State and communicated by the State
to the Centre.
Regulation 21
Establishment of Panels
(1) Whenever a Contracting State has the right to make one or
more designations to the Panel of Conciliators or of Arbitrators, the
Secretary-General shall invite the State to make such designations.
(2) Each designation made by a Contracting State or by the Chairman
shall indicate the name, address and nationality of the designee,
and include a statement of his qualifications, with particular reference
to his competence in the fields of law, commerce, industry and finance.
(3) As soon as the Secretary-General is notified of a designation, he
shall inform the designee thereof, indicating to him the designating
authority and the terminal date of the period of designation, and
requesting confirmation that the designee is willing to serve.
(4) The Secretary-General shall maintain lists, which he shall
transmit from time to time to all Contracting States and on request to
any State or person, of the members of the Panels of Conciliators and
of Arbitrators, indicating for each member:
Administrativeand
FinancialRegulations
66
(a) his address;
(b) his nationality;
(c) the terminal date of the current designation;
(d) the designating authority;
(e) his qualifications.
Regulation 22
Publication
(1) The Secretary-General shall appropriately publish information
about the operation of the Centre, including the registration of all
requests for conciliation or arbitration and in due course an indication
of the date and method of the termination of each proceeding.
(2) If both parties to a proceeding consent to the publication of:
(a) reports of Conciliation Commissions;
(b) arbitral awards; or
(c) the minutes and other records of proceedings,
the Secretary-General shall arrange for the publication thereof, in an
appropriate form with a view to furthering the development of international
law in relation to investments.
Chapter V
Functions with Respect
to Individual Proceedings
Regulation 23
The Registers
(1) The Secretary-General shall maintain, in accordance with rules
to be promulgated by him, separate Registers for requests for conciliation
and requests for arbitration. In these he shall enter all significant
data concerning the institution, conduct and disposition of each proceeding,
including in particular the method of constitution and the
membership of each Commission, Tribunal and Committee. On the
Arbitration Register he shall also enter, with respect to each award, all
significant data concerning any request for the supplementation, rectification,
interpretation, revision or annulment of the award, and any
stay of enforcement.
(2) The Registers shall be open for inspection by any person. The
Secretary-General shall promulgate rules concerning access to the Reg-
Administrativeand
FinancialRegulations
67
isters, and a schedule of charges for the provision of certified and uncertified
extracts therefrom.
Regulation 24
Means of Communication
(1) During the pendency of any proceeding the Secretary-General
shall be the official channel of written communications among the parties,
the Commission, Tribunal or Committee, and the Chairman of the
Administrative Council, except that:
(a) the parties may communicate directly with each other
unless the communication is one required by the Convention
or the Institution, Conciliation or Arbitration Rules
(hereinafter referred to as the “Rules”);
(b) the members of any Commission, Tribunal or Committee
shall communicate directly with each other.
(2) Instruments and documents shall be introduced into the proceeding
by transmitting them to the Secretary-General, who shall retain
the original for the files of the Centre and arrange for appropriate distribution
of copies. If the instrument or document does not meet the
applicable requirements, the Secretary-General:
(a) shall inform the party submitting it of the deficiency, and
of any consequent action the Secretary-General is taking;
(b) may, if the deficiency is merely a formal one, accept it subject
to subsequent correction;
(c) may, if the deficiency consists merely of an insufficiency in
the number of copies or the lack of required translations,
provide the necessary copies or translations at the cost of
the party concerned.
Regulation 25
Secretary
The Secretary-General shall appoint a Secretary for each Commission,
Tribunal and Committee. The Secretary may be drawn from
among the Secretariat of the Centre, and shall in any case, while serving
in that capacity, be considered as a member of its staff. He shall:
(a) represent the Secretary-General and may perform all functions
assigned to the latter by these Regulations or the
Rules with regard to individual proceedings or assigned to
the latter by the Convention, and delegated by him to the
Secretary;
(b) be the channel through which the parties may request particular
services from the Centre;
Administrativeand
FinancialRegulations
68
(c) keep summary minutes of hearings, unless the parties agree
with the Commission, Tribunal or Committee on another
manner of keeping the record of the hearings; and
(d) perform other functions with respect to the proceeding at
the request of the President of the Commission, Tribunal
or Committee, or at the direction of the Secretary-General.
Regulation 26
Place of Proceedings
(1) The Secretary-General shall make arrangements for the holding
of conciliation and arbitration proceedings at the seat of the Centre
or shall, at the request of the parties and as provided in Article 63 of the
Convention, make or supervise arrangements if proceedings are held
elsewhere.
(2) The Secretary-General shall assist a Commission or Tribunal, at
its request, in visiting any place connected with a dispute or in conducting
inquiries there.
Regulation 27
Other Assistance
(1) The Secretary-General shall provide such other assistance as
may be required in connection with all meetings of Commissions, Tribunals
and Committees, in particular in making translations and interpretations
from one official language of the Centre into another.
(2) The Secretary-General may also provide, by use of the staff and
equipment of the Centre or of persons employed and equipment
acquired on a short-time basis, other services required for the conduct
of proceedings, such as the duplication and translation of documents,
or interpretations from and to a language other than an official language
of the Centre.
Regulation 28
Depositary Functions
(1) The Secretary-General shall deposit in the archives of the
Centre and shall make arrangements for the permanent retention of the
original text:
(a) of the request and of all instruments and documents filed
or prepared in connection with any proceeding, including
the minutes of any hearing;
(b) of any report by a Commission or of any award or decision
by a Tribunal or Committee.
Administrativeand
FinancialRegulations
69
(2) Subject to the Rules and to the agreement of the parties to
particular proceedings, and upon payment of any charges in accordance
with a schedule to be promulgated by the Secretary-General, he
shall make available to the parties certified copies of reports and
awards (reflecting thereon any supplementary decision, rectification,
interpretation, revision or annulment duly made, and any stay of
enforcement while it is in effect), as well as of other instruments, documents
and minutes.
Chapter VI
Special Provisions Relating to Proceedings
Regulation 29
Time Limits
(1) All time limits, specified in the Convention or the Rules or fixed
by a Commission, Tribunal, Committee 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 SecretaryGeneral
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.
(2) 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 the competent Commission, Tribunal or Committee 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.
Regulation 30
Supporting Documentation
(1) Documentation filed in support of any request, pleading, application,
written observation or other instrument introduced into a proceeding
shall consist of one original and of the number of additional
copies specified in paragraph (2). The original shall, unless otherwise
agreed by the parties or ordered by the competent Commission, Tribunal
or Committee, consist of the complete document or of a duly certified
copy or extract, except if the party is unable to obtain such
document or certified copy or extract (in which case the reason for such
inability must be stated).
Administrativeand
FinancialRegulations
70
(2) The number of additional copies of any document shall be
equal to the number of additional copies required of the instrument to
which the documentation relates, except that no such copies are required
if the document has been published and is readily available. Each additional
copy shall be certified by the party presenting it to be a true and
complete copy of the original, except that if the document is lengthy and
relevant only in part, it is sufficient if it is certified to be a true and complete
extract of the relevant parts, which must be precisely specified.
(3) Each original and additional copy of a document which is not
in a language approved for the proceeding in question, shall, unless otherwise
ordered by the competent Commission, Tribunal or Committee,
be accompanied by a certified translation into such a language. However,
if the document is lengthy and relevant only in part, it is sufficient
if only the relevant parts, which must be precisely specified, are translated,
provided that the competent body may require a fuller or a complete
translation.
(4) Whenever an extract of an original document is presented pursuant
to paragraph (1) or a partial copy or translation pursuant to paragraph
(2) or (3), each such extract, copy and translation shall be
accompanied by a statement that the omission of the remainder of the
text does not render the portion presented misleading.
Chapter VII
Immunities and Privileges
Regulation 31
Certificates of Official Travel
The Secretary-General may issue certificates to members of Commissions,
Tribunals or Committees, to officers and employees of the
Secretariat and to the parties, agents, counsel, advocates, witnesses and
experts appearing in proceedings, indicating that they are traveling in
connection with a proceeding under the Convention.
Regulation 32
Waiver of Immunities
(1) The Secretary-General may waive the immunity of:
(a) the Centre;
(b) members of the staff of the Centre.
(2) The Chairman of the Council may waive the immunity of:
(a) the Secretary-General or any Deputy Secretary-General;
(b) members of a Commission, Tribunal or Committee;
Administrativeand
FinancialRegulations
71
(c) the parties, agents, counsel, advocates, witnesses or experts
appearing in a proceeding, if a recommendation for such
waiver is made by the Commission, Tribunal or Committee
concerned.
(3) The Administrative Council may waive the immunity of:
(a) the Chairman and members of the Council;
(b) the parties, agents, counsel, advocates, witnesses or experts
appearing in a proceeding, even if no recommendation for
such a waiver is made by the Commission, Tribunal or
Committee concerned;
(c) the Centre or any person mentioned in paragraph (1)
or (2).
Chapter VIII
Miscellaneous
Regulation 33
Communications with
Contracting States
Unless another channel of communications is specified by the State
concerned, all communications required by the Convention or these
Regulations to be sent to Contracting States shall be addressed to the
State’s representative on the Administrative Council.
Regulation 34
Official Languages
(1) The official languages of the Centre shall be English, French
and Spanish.
(2) The texts of these Regulations in each official language shall be
equally authentic.
RULES OF PROCEDURE FOR THE
INSTITUTION OF CONCILIATION
AND ARBITRATION PROCEEDINGS
(INSTITUTION RULES)
InstitutionRules
73
InstitutionRules
75
RULES OF PROCEDURE FOR THE
INSTITUTION OF CONCILIATION
AND ARBITRATION PROCEEDINGS
(INSTITUTION RULES)
Table of Contents
Rule Page
1 The Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2 Contents of the Request . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
3 Optional Information in the Request . . . . . . . . . . . . . . . . 77
4 Copies of the Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
5 Acknowledgement of the Request . . . . . . . . . . . . . . . . . . . 78
6 Registration of the Request . . . . . . . . . . . . . . . . . . . . . . . . . 78
7 Notice of Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
8 Withdrawal of the Request . . . . . . . . . . . . . . . . . . . . . . . . . 79
9 Final Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
InstitutionRules
76
The Rules of Procedure for the Institution of Conciliation and Arbitration
Proceedings (the Institution Rules) of ICSID were adopted by the
Administrative Council of the Centre pursuant to Article 6(1)(b) of the
ICSID Convention.
The Institution Rules are supplemented by the Administrative and
Financial Regulations of the Centre, in particular by Regulations 16,
22(1), 23, 24, 30 and 34(1).
The Institution Rules are restricted in scope to the period of time from
the filing of a request to the dispatch of the notice of registration. All transactions
subsequent to that time are to be regulated in accordance with the
Conciliation and the Arbitration Rules.
Institution Rules
Rule 1
The Request
(1) Any Contracting State or any national of a Contracting State
wishing to institute conciliation or arbitration proceedings under the
Convention shall address a request to that effect in writing to the Secretary-General
at the seat of the Centre. The request shall indicate
whether it relates to a conciliation or an arbitration proceeding. It shall
be drawn up in an official language of the Centre, shall be dated, and
shall be signed by the requesting party or its duly authorized represen-
tative.
(2) The request may be made jointly by the parties to the dispute.
Rule 2
Contents of the Request
(1) The request shall:
(a) designate precisely each party to the dispute and state the
address of each;
(b) state, if one of the parties is a constituent subdivision or
agency of a Contracting State, that it has been designated to
the Centre by that State pursuant to Article 25(1) of the
Convention;
(c) indicate the date of consent and the instruments in which
it is recorded, including, if one party is a constituent subdivision
or agency of a Contracting State, similar data on the
approval of such consent by that State unless it had notified
the Centre that no such approval is required;
InstitutionRules
77
(d) indicate with respect to the party that is a national of a
Contracting State:
(i) its nationality on the date of consent; and
(ii) if the party is a natural person:
(A) his nationality on the date of the request; and
(B) that he did not have the nationality of the
Contracting State party to the dispute either
on the date of consent or on the date of the
request; or
(iii) if the party is a juridical person which on the date of
consent had the nationality of the Contracting State
party to the dispute, the agreement of the parties that
it should be treated as a national of another Contracting
State for the purposes of the Convention;
(e) contain information concerning the issues in dispute indicating
that there is, between the parties, a legal dispute arising
directly out of an investment; and
(f) state, if the requesting party is a juridical person, that it has
taken all necessary internal actions to authorize the
request.
(2) The information required by subparagraphs (1)(c), (1)(d)(iii)
and (1)(f) shall be supported by documentation.
(3) “Date of consent” means the date on which the parties to the
dispute consented in writing to submit it to the Centre; if both parties
did not act on the same day, it means the date on which the second
party acted.
Rule 3
Optional Information
in the Request
The request may in addition set forth any provisions agreed by the
parties regarding the number of conciliators or arbitrators and the
method of their appointment, as well as any other provisions agreed
concerning the settlement of the dispute.
Rule 4
Copies of the Request
(1) The request shall be accompanied by five additional signed
copies. The Secretary-General may require such further copies as he
may deem necessary.
InstitutionRules
78
(2) Any documentation submitted with the request shall conform
to the requirements of Administrative and Financial Regulation 30.
Rule 5
Acknowledgement of the Request
(1) On receiving a request the Secretary-General shall:
(a) send an acknowledgement to the requesting party;
(b) take no other action with respect to the request until he has
received payment of the prescribed fee.
(2) As soon as he has received the fee for lodging the request, the
Secretary-General shall transmit a copy of the request and of the
accompanying documentation to the other party.
Rule 6
Registration of the Request
(1) The Secretary-General shall, subject to Rule 5(1)(b), as soon as
possible, either:
(a) register the request in the Conciliation or the Arbitration
Register and on the same day notify the parties of the registration;
or
(b) if he finds, on the basis of the information contained in the
request, that the dispute is manifestly outside the jurisdiction
of the Centre, notify the parties of his refusal to register
the request and of the reasons therefor.
(2) A proceeding under the Convention shall be deemed to have
been instituted on the date of the registration of the request.
Rule 7
Notice of Registration
The notice of registration of a request shall:
(a) record that the request is registered and indicate the date of
the registration and of the dispatch of that notice;
(b) notify each party that all communications and notices in
connection with the proceeding will be sent to the address
stated in the request, unless another address is indicated to
the Centre;
(c) unless such information has already been provided, invite
the parties to communicate to the Secretary-General any
InstitutionRules
79
provisions agreed by them regarding the number and the
method of appointment of the conciliators or arbitrators;
(d) invite the parties to proceed, as soon as possible, to constitute
a Conciliation Commission in accordance with Articles
29 to 31 of the Convention, or an Arbitral Tribunal in
accordance with Articles 37 to 40;
(e) remind the parties that the registration of the request is
without prejudice to the powers and functions of the Conciliation
Commission or Arbitral Tribunal in regard to
jurisdiction, competence and the merits; and
(f) be accompanied by a list of the members of the Panel of
Conciliators or of Arbitrators of the Centre.
Rule 8
Withdrawal of the Request
The requesting party may, by written notice to the Secretary-General,
withdraw the request before it has been registered. The SecretaryGeneral
shall promptly notify the other party, unless, pursuant to Rule
5(1)(b), the request had not been transmitted to it.
Rule 9
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 “Institution Rules” of the
Centre.
RULES OF PROCEDURE
FOR CONCILIATION PROCEEDINGS
(CONCILIATION RULES)
81
ConciliationRules
83
ConciliationRules
RULES OF PROCEDURE
FOR CONCILIATION PROCEEDINGS
(CONCILIATION RULES)
Table of Contents
Chapter Rule Page
I Establishment of the Commission
1 General Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 85
2 Method of Constituting the Commission
in the Absence of Previous Agreement . . . . . . . . . . 85
3 Appointment of Conciliators to a
Commission Constituted in Accordance
with Convention Article 29(2)(b) . . . . . . . . . . . . . . 86
4 Appointment of Conciliators by the
Chairman of the Administrative Council . . . . . . . . 87
5 Acceptance of Appointments . . . . . . . . . . . . . . . . . . 87
6 Constitution of the Commission . . . . . . . . . . . . . . . 88
7 Replacement of Conciliators . . . . . . . . . . . . . . . . . . 88
8 Incapacity or Resignation of Conciliators . . . . . . . 88
9 Disqualification of Conciliators . . . . . . . . . . . . . . . . 89
10 Procedure during a Vacancy on the Commission . 89
11 Filling Vacancies on the Commission . . . . . . . . . . . 90
12 Resumption of Proceeding after Filling a Vacancy 90
II Working of the Commission
13 Sessions of the Commission . . . . . . . . . . . . . . . . . . 90
14 Sittings of the Commission . . . . . . . . . . . . . . . . . . . 91
15 Deliberations of the Commission . . . . . . . . . . . . . . 91
16 Decisions of the Commission . . . . . . . . . . . . . . . . . 92
17 Incapacity of the President . . . . . . . . . . . . . . . . . . . . 92
18 Representation of the Parties . . . . . . . . . . . . . . . . . . 92
III General Procedural Provisions
19 Procedural Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
20 Preliminary Procedural Consultation . . . . . . . . . . . 93
21 Procedural Languages . . . . . . . . . . . . . . . . . . . . . . . . 93
IV Conciliation Procedures
22 Functions of the Commission . . . . . . . . . . . . . . . . . 94
23 Cooperation of the Parties . . . . . . . . . . . . . . . . . . . . 94
24 Transmission of the Request . . . . . . . . . . . . . . . . . . 95
25 Written Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 95
84
ConciliationRules
26 Supporting Documentation . . . . . . . . . . . . . . . . . . . 95
27 Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
28 Witnesses and Experts . . . . . . . . . . . . . . . . . . . . . . . 96
V Termination of the Proceeding
29 Objections to Jurisdiction . . . . . . . . . . . . . . . . . . . . 96
30 Closure of the Proceeding . . . . . . . . . . . . . . . . . . . . 97
31 Preparation of the Report . . . . . . . . . . . . . . . . . . . . 97
32 The Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
33 Communication of the Report . . . . . . . . . . . . . . . . 98
VI General Provisions
34 Final Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
85
ConciliationRules
The Rules of Procedure for Conciliation Proceedings (the Conciliation
Rules) of ICSID were adopted by the Administrative Council of the Centre
pursuant to Article 6(1)(c) of the ICSID Convention.
The Conciliation Rules are supplemented by the Administrative and
Financial Regulations of the Centre, in particular by Regulations 14-16,
22-31 and 34(1).
The Conciliation Rules cover the period of time from the dispatch of
the notice of registration of a request for conciliation until a report is
drawn up. The transactions previous to that time are to be regulated in
accordance with the Institution Rules.
Conciliation Rules
Chapter I
Establishment of the Commission
Rule 1
General Obligations
(1) Upon notification of the registration of the request for conciliation,
the parties shall, with all possible dispatch, proceed to constitute
a Commission, with due regard to Section 2 of Chapter III of the Con-
vention.
(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 conciliators and the
method of their appointment.
Rule 2
Method of Constituting the Commission in the
Absence of Previous Agreement
(1) If the parties, at the time of the registration of the request for
conciliation, have not agreed upon the number of conciliators and the
method of their appointment, they shall, unless they agree otherwise,
follow the following procedure:
(a) the requesting party shall, within 10 days after the registration
of the request, propose to the other party the appointment
of a sole conciliator or of a specified uneven number
of conciliators and specify the method proposed for their
appointment;
86
ConciliationRules
(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 conciliators
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.
(2) The communications provided for in paragraph (1) 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. The parties shall promptly notify the
Secretary-General of the contents of any agreement reached.
(3) At any time 60 days after the registration of the request, if no
agreement on another procedure is reached, either party may inform
the Secretary-General that it chooses the formula provided for in Article
29(2)(b) of the Convention. The Secretary-General shall thereupon
promptly inform the other party that the Commission is to be constituted
in accordance with that Article.
Rule 3
Appointment of Conciliators
to a Commission Constituted in Accordance
with Convention Article 29(2)(b)
(1) If the Commission is to be constituted in accordance with Article
29(2)(b) of the Convention:
(a) either party shall, in a communication to the other party:
(i) name two persons, identifying one of them as the conciliator
appointed by it and the other as the conciliator
proposed to be the President of the Commission; and
(ii) invite the other party to concur in the appointment of
the conciliator proposed to be the President of the
Commission and to appoint another conciliator;
(b) promptly upon receipt of this communication the other
party shall, in its reply:
(i) name a person as the conciliator appointed by it; and
(ii) concur in the appointment of the conciliator proposed
to be the President of the Commission or name
another person as the conciliator proposed to be Pres-
ident;
87
ConciliationRules
(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 conciliator proposed by
that party to be the President of the Commission.
(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.
Rule 4
Appointment of Conciliators by the Chairman
of the Administrative Council
(1) If the Commission is not constituted within 90 days after the
dispatch by the Secretary-General of the notice of registration, or such
other period as the parties may agree, either party may, through the Secretary-General,
address to the Chairman of the Administrative Council
a request in writing to appoint the conciliator or conciliators not yet
appointed and to designate a conciliator to be the President of the
Commission.
(2) The provision of paragraph (1) shall apply mutatis mutandis in
the event that the parties have agreed that the conciliators shall elect the
President of the Commission and they fail to do so.
(3) The Secretary-General shall forthwith send a copy of the
request to the other party.
(4) The Chairman shall use his best efforts to comply with that
request within 30 days after its receipt. Before he proceeds to make an
appointment or designation, with due regard to Article 31(1) of the
Convention, he shall consult both parties as far as possible.
(5) The Secretary-General shall promptly notify the parties of any
appointment or designation made by the Chairman.
Rule 5
Acceptance of Appointments
(1) The party or parties concerned shall notify the Secretary-General
of the appointment of each conciliator and indicate the method of
his appointment.
(2) As soon as the Secretary-General has been informed by a party
or the Chairman of the Administrative Council of the appointment of
a conciliator, he shall seek an acceptance from the appointee.
(3) If a conciliator 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
88
ConciliationRules
another conciliator in accordance with the method followed for the previous
appointment.
Rule 6
Constitution of the Commission
(1) The Commission shall be deemed to be constituted and the
proceeding to have begun on the date the Secretary-General notifies the
parties that all the conciliators have accepted their appointment.
(2) Before or at the first session of the Commission, each conciliator
shall sign a declaration in the following form:
“To the best of my knowledge there is no reason why I should not
serve on the Conciliation Commission constituted by the International
Centre for Settlement of Investment Disputes with respect to
a dispute between _________________and _________________.
“I shall keep confidential all information coming to my knowledge
as a result of my participation in this proceeding, as well as the contents
of any report drawn up by the Commission.
“I shall not accept any instruction or compensation with regard to
the proceeding from any source except as provided in the Convention
on the Settlement of Investment Disputes between States and
Nationals of Other States and in the Regulations and Rules made
pursuant thereto.
“A statement of my past and present professional, business and
other relationships (if any) with the parties is attached hereto.”
Any conciliator failing to sign such a declaration by the end of the
first session of the Commission shall be deemed to have resigned.
Rule 7
Replacement of Conciliators
At any time before the Commission is constituted, each party may
replace any conciliator appointed by it and the parties may by common
consent agree to replace any conciliator. The procedure of such replacement
shall be in accordance with Rules 1, 5 and 6.
Rule 8
Incapacity or Resignation of Conciliators
(1) If a conciliator becomes incapacitated or unable to perform the
duties of his office, the procedure in respect of the disqualification of
conciliators set forth in Rule 9 shall apply.
(2) A conciliator may resign by submitting his resignation to the
other members of the Commission and the Secretary-General. If the
89
ConciliationRules
conciliator was appointed by one of the parties, the Commission shall
promptly consider the reasons for his resignation and decide whether it
consents thereto. The Commission shall promptly notify the SecretaryGeneral
of its decision.
Rule 9
Disqualification of Conciliators
(1) A party proposing the disqualification of a conciliator pursuant
to Article 57 of the Convention shall promptly, and in any event before
the Commission first recommends terms of settlement of the dispute to
the parties or when the proceeding is closed (whichever occurs earlier),
file its proposal with the Secretary-General, stating its reasons therefor.
(2) The Secretary-General shall forthwith:
(a) transmit the proposal to the members of the Commission
and, if it relates to a sole conciliator or to a majority of the
members of the Commission, to the Chairman of the
Administrative Council; and
(b) notify the other party of the proposal.
(3) The conciliator to whom the proposal relates may, without
delay, furnish explanations to the Commission or the Chairman, as the
case may be.
(4) Unless the proposal relates to a majority of the members of the
Commission, the other members shall promptly consider and vote on
the proposal in the absence of the conciliator concerned. If those members
are equally divided, they shall, through the Secretary-General,
promptly notify the Chairman of the proposal, of any explanation furnished
by the conciliator concerned and of their failure to reach a deci-
sion.
(5) Whenever the Chairman has to decide on a proposal to disqualify
a conciliator, he shall use his best efforts to take that decision
within 30 days after he has received the proposal.
(6) The proceeding shall be suspended until a decision has been
taken on the proposal.
Rule 10
Procedure during a Vacancy
on the Commission
(1) The Secretary-General shall forthwith notify the parties and, if
necessary, the Chairman of the Administrative Council of the disqualification,
death, incapacity or resignation of a conciliator and of the consent,
if any, of the Commission to a resignation.
90
ConciliationRules
(2) Upon the notification by the Secretary-General of a vacancy on
the Commission, the proceeding shall be or remain suspended until the
vacancy has been filled.
Rule 11
Filling Vacancies
on the Commission
(1) Except as provided in paragraph (2), a vacancy resulting from
the disqualification, death, incapacity or resignation of a conciliator
shall be promptly filled by the same method by which his appointment
had been made.
(2) In addition to filling vacancies relating to conciliators
appointed by him, the Chairman of the Administrative Council shall
appoint a person from the Panel of Conciliators:
(a) to fill a vacancy caused by the resignation, without the consent
of the Commission, of a conciliator appointed by a
party; or
(b) at the request of either party, to fill any other vacancy, if no
new appointment is made and accepted within 45 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).
Rule 12
Resumption of Proceeding
after Filling a Vacancy
As soon as a vacancy on the Commission has been filled, the proceeding
shall continue from the point it had reached at the time the
vacancy occurred. The newly appointed conciliator may, however,
require that any hearings be repeated in whole or in part.
Chapter II
Working of the Commission
Rule 13
Sessions of the Commission
(1) The Commission shall hold 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 Commission after
consultation with its members and the Secretary-General. If upon its
91
ConciliationRules
constitution the Commission has no President because the parties have
agreed that the President shall be elected by its members, the SecretaryGeneral
shall fix the dates of that session. In both cases, the parties shall
be consulted as far as possible.
(2) The dates of subsequent sessions shall be determined by the
Commission, after consultation with the Secretary-General and with
the parties as far as possible.
(3) The Commission 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 Commission.
Failing such approval, the Commission shall meet at the seat of
the Centre.
(4) The Secretary-General shall notify the members of the Commission
and the parties of the dates and place of the sessions of the
Commission in good time.
Rule 14
Sittings of the Commission
(1) The President of the Commission shall conduct its hearings
and preside at its deliberations.
(2) Except as the parties otherwise agree, the presence of a majority
of the members of the Commission shall be required at its sittings.
(3) The President of the Commission shall fix the date and hour of
its sittings.
Rule 15
Deliberations of
the Commission
(1) The deliberations of the Commission shall take place in private
and remain secret.
(2) Only members of the Commission shall take part in its deliberations.
No other person shall be admitted unless the Commission
decides otherwise.
92
ConciliationRules
Rule 16
Decisions of
the Commission
(1) Decisions of the Commission shall be taken by a majority of
the votes of all its members. Abstention shall count as a negative vote.
(2) Except as otherwise provided by these Rules or decided by the
Commission, it may take any decision by correspondence among its
members, provided that all of them are consulted. Decisions so taken
shall be certified by the President of the Commission.
Rule 17
Incapacity of
the President
If at any time the President of the Commission should be unable to
act, his functions shall be performed by one of the other members of
the Commission, acting in the order in which the Secretary-General
had received the notice of their acceptance of their appointment to the
Commission.
Rule 18
Representation of
the Parties
(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 Commission 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
Rule 19
Procedural Orders
The Commission shall make the orders required for the conduct of
the proceeding.
93
ConciliationRules
Rule 20
Preliminary Procedural
Consultation
(1) As early as possible after the constitution of a Commission, 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 mat-
ters:
(a) the number of members of the Commission required to
constitute a quorum at its sittings;
(b) the language or languages to be used in the proceeding;
(c) the evidence, oral or written, which each party intends to
produce or to request the Commission to call for, and the
written statements which each party intends to file, as well
as the time limits within which such evidence should be
produced and such statements filed;
(d) the number of copies desired by each party of instruments
filed by the other; and
(e) the manner in which the record of the hearings shall be
kept.
(2) In the conduct of the proceeding the Commission shall apply
any agreement between the parties on procedural matters, except as
otherwise provided in the Convention or the Administrative and Financial
Regulations.
Rule 21
Procedural Languages
(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 Commission, 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
instrument may be filed in either language. Either language may be used
at the hearings, subject, if the Commission so requires, to translation
and interpretation. The recommendations and the report of the Commission
shall be rendered and the record kept in both procedural languages,
both versions being equally authentic.
94
ConciliationRules
Chapter IV
Conciliation Procedures
Rule 22
Functions of
the Commission
(1) In order to clarify the issues in dispute between the parties, the
Commission shall hear the parties and shall endeavor to obtain any
information that might serve this end. The parties shall be associated
with its work as closely as possible.
(2) In order to bring about agreement between the parties, the
Commission may, from time to time at any stage of the proceeding,
make—orally or in writing—recommendations to the parties. It may
recommend that the parties accept specific terms of settlement or that
they refrain, while it seeks to bring about agreement between them,
from specific acts that might aggravate the dispute; it shall point out to
the parties the arguments in favor of its recommendations. It may fix
time limits within which each party shall inform the Commission of its
decision concerning the recommendations made.
(3) The Commission, in order to obtain information that might
enable it to discharge its functions, may at any stage of the proceeding:
(a) request from either party oral explanations, documents
and other information;
(b) request evidence from other persons; and
(c) with the consent of the party concerned, visit any place
connected with the dispute or conduct inquiries there, provided
that the parties may participate in any such visits and
inquiries.
Rule 23
Cooperation of the Parties
(1) The parties shall cooperate in good faith with the Commission
and, in particular, at its request furnish all relevant documents, information
and explanations as well as use the means at their disposal to
enable the Commission to hear witnesses and experts whom it desires
to call. The parties shall also facilitate visits to and inquiries at any place
connected with the dispute that the Commission desires to undertake.
(2) The parties shall comply with any time limits agreed with or
fixed by the Commission.
95
ConciliationRules
Rule 24
Transmission of the Request
As soon as the Commission 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.
Rule 25
Written Statements
(1) Upon the constitution of the Commission, its President shall
invite each party to file, within 30 days or such longer time limit as he
may fix, a written statement of its position. If, upon its constitution, the
Commission has no President, such invitation shall be issued and any
such longer time limit shall be fixed by the Secretary-General. At any
stage of the proceeding, within such time limits as the Commission
shall fix, either party may file such other written statements as it deems
useful and relevant.
(2) Except as otherwise provided by the Commission after consultation
with the parties and the Secretary-General, every written statement
or other instrument shall be filed in the form of a signed original
accompanied by additional copies whose number shall be two more
than the number of members of the Commission.
Rule 26
Supporting Documentation
(1) Every written statement or other instrument filed by a party
may be accompanied by supporting documentation, in such form and
number of copies as required by Administrative and Financial Regulation
30.
(2) 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.
Rule 27
Hearings
(1) The hearings of the Commission shall take place in private and,
except as the parties otherwise agree, shall remain secret.
(2) The Commission shall decide, with the consent of the parties,
which other persons besides the parties, their agents, counsel and advo-
96
ConciliationRules
cates, witnesses and experts during their testimony, and officers of the
Commission may attend the hearings.
Rule 28
Witnesses and Experts
(1) Each party may, at any stage of the proceeding, request that the
Commission hear the witnesses and experts whose evidence the party
considers relevant. The Commission shall fix a time limit within which
such hearing shall take place.
(2) Witnesses and experts shall, as a rule, be examined before the
Commission by the parties under the control of its President. Questions
may also be put to them by any member of the Commission.
(3) If a witness or expert is unable to appear before it, the Commission,
in agreement with the parties, may make appropriate arrangements
for the evidence to be given in a written deposition or to be taken
by examination elsewhere. The parties may participate in any such
examination.
Chapter V
Termination of the Proceeding
Rule 29
Objections to Jurisdiction
(1) Any objection that the dispute is not within the jurisdiction of
the Centre or, for other reasons, is not within the competence of the
Commission shall be made as early as possible. A party shall file the
objection with the Secretary-General no later than in its first written
statement or at the first hearing if that occurs earlier, unless the facts on
which the objection is based are unknown to the party at that time.
(2) The Commission may on its own initiative consider, at any
stage of the proceeding, whether the dispute before it is within the jurisdiction
of the Centre and within its own competence.
(3) Upon the formal raising of an objection, the proceeding on the
merits shall be suspended. The Commission shall obtain the views of
the parties on the objection.
(4) The Commission may deal with the objection as a preliminary
question or join it to the merits of the dispute. If the Commission overrules
the objection or joins it to the merits, it shall resume consideration
of the latter without delay.
(5) If the Commission decides that the dispute is not within the
jurisdiction of the Centre or not within its own competence, it shall
97
ConciliationRules
close the proceeding and draw up a report to that effect, in which it shall
state its reasons.
Rule 30
Closure of the Proceeding
(1) If the parties reach agreement on the issues in dispute, the
Commission shall close the proceeding and draw up its report noting
the issues in dispute and recording that the parties have reached agreement.
At the request of the parties, the report shall record the detailed
terms and conditions of their agreement.
(2) If at any stage of the proceeding it appears to the Commission
that there is no likelihood of agreement between the parties, the Commission
shall, after notice to the parties, close the proceeding and draw
up its report noting the submission of the dispute to conciliation and
recording the failure of the parties to reach agreement.
(3) If one party fails to appear or participate in the proceeding, the
Commission shall, after notice to the parties, close the proceeding and
draw up its report noting the submission of the dispute to conciliation
and recording the failure of that party to appear or participate.
Rule 31
Preparation of the Report
The report of the Commission shall be drawn up and signed within
60 days after the closure of the proceeding.
Rule 32
The Report
(1) The report shall be in writing and shall contain, in addition to
the material specified in paragraph (2) and in Rule 30:
(a) a precise designation of each party;
(b) a statement that the Commission was established under the
Convention, and a description of the method of its consti-
tution;
(c) the names of the members of the Commission, and an
identification of the appointing authority of each;
(d) the names of the agents, counsel and advocates of the par-
ties;
(e) the dates and place of the sittings of the Commission; and
(f) a summary of the proceeding.
98
ConciliationRules
(2) The report shall also record any agreement of the parties, pursuant
to Article 35 of the Convention, concerning the use in other proceedings
of the views expressed or statements or admissions or offers of
settlement made in the proceeding before the Commission or of the
report or any recommendation made by the Commission.
(3) The report shall be signed by the members of the Commission;
the date of each signature shall be indicated. The fact that a member
refuses to sign the report shall be recorded therein.
Rule 33
Communication
of the Report
(1) Upon signature by the last conciliator to sign, the SecretaryGeneral
shall promptly:
(a) authenticate the original text of the report and deposit it in
the archives of the Centre; and
(b) dispatch a certified copy to each party, indicating the date
of dispatch on the original text and on all copies.
(2) The Secretary-General shall, upon request, make available to a
party additional certified copies of the report.
(3) The Centre shall not publish the report without the consent of
the parties.
Chapter VI
General Provisions
Rule 34
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 “Conciliation Rules” of the
Centre.
RULES OF PROCEDURE
FOR ARBITRATION
PROCEEDINGS
(ARBITRATION RULES)
ArbitrationRules
99
ArbitrationRules
101
RULES OF PROCEDURE FOR
ARBITRATION PROCEEDINGS
(ARBITRATION RULES)
Table of Contents
Chapter Rule Page
I Establishment of the Tribunal
1 General Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 103
2 Method of Constituting the Tribunal
in the Absence of Previous Agreement . . . . . . . . . . 104
3 Appointment of Arbitrators to a
Tribunal Constituted in Accordance
with Convention Article 37(2)(b) . . . . . . . . . . . . . . 104
4 Appointment of Arbitrators by the
Chairman of the Administrative Council . . . . . . . . 105
5 Acceptance of Appointments . . . . . . . . . . . . . . . . . . 106
6 Constitution of the Tribunal . . . . . . . . . . . . . . . . . . 106
7 Replacement of Arbitrators . . . . . . . . . . . . . . . . . . . 107
8 Incapacity or Resignation of Arbitrators . . . . . . . . 107
9 Disqualification of Arbitrators . . . . . . . . . . . . . . . . . 107
10 Procedure during a Vacancy on the Tribunal . . . . . 108
11 Filling Vacancies on the Tribunal . . . . . . . . . . . . . . 108
12 Resumption of Proceeding after
Filling a Vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
II Working of the Tribunal
13 Sessions of the Tribunal . . . . . . . . . . . . . . . . . . . . . . 109
14 Sittings of the Tribunal . . . . . . . . . . . . . . . . . . . . . . . 110
15 Deliberations of the Tribunal . . . . . . . . . . . . . . . . . . 110
16 Decisions of the Tribunal . . . . . . . . . . . . . . . . . . . . . 110
17 Incapacity of the President . . . . . . . . . . . . . . . . . . . . 110
18 Representation of the Parties . . . . . . . . . . . . . . . . . . 110
III General Procedural Provisions
19 Procedural Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
20 Preliminary Procedural Consultation . . . . . . . . . . . 111
21 Pre-Hearing Conference . . . . . . . . . . . . . . . . . . . . . . 111
22 Procedural Languages . . . . . . . . . . . . . . . . . . . . . . . . 112
23 Copies of Instruments . . . . . . . . . . . . . . . . . . . . . . . 112
24 Supporting Documentation . . . . . . . . . . . . . . . . . . . 112
25 Correction of Errors . . . . . . . . . . . . . . . . . . . . . . . . . 113
26 Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
ArbitrationRules
102
27 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
28 Cost of Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . 113
IV Written and Oral Procedures
29 Normal Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . 114
30 Transmission of the Request . . . . . . . . . . . . . . . . . . 114
31 The Written Procedure . . . . . . . . . . . . . . . . . . . . . . . 114
32 The Oral Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . 115
33 Marshalling of Evidence . . . . . . . . . . . . . . . . . . . . . . 115
34 Evidence: General Principles . . . . . . . . . . . . . . . . . . 115
35 Examination of Witnesses and Experts . . . . . . . . . . 116
36 Witnesses and Experts: Special Rules . . . . . . . . . . . 116
37 Visits and Inquiries; Submissions of
Non-disputing Parties . . . . . . . . . . . . . . . . . . . . . . . . 117
38 Closure of the Proceeding . . . . . . . . . . . . . . . . . . . . 117
V Particular Procedures
39 Provisional Measures . . . . . . . . . . . . . . . . . . . . . . . . 118
40 Ancillary Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
41 Preliminary Objections . . . . . . . . . . . . . . . . . . . . . . . 119
42 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
43 Settlement and Discontinuance . . . . . . . . . . . . . . . . 120
44 Discontinuance at Request of a Party . . . . . . . . . . . 121
45 Discontinuance for Failure of Parties to Act . . . . . 121
VI The Award
46 Preparation of the Award . . . . . . . . . . . . . . . . . . . . . 121
47 The Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
48 Rendering of the Award . . . . . . . . . . . . . . . . . . . . . . 122
49 Supplementary Decisions and Rectification . . . . . . 123
VII Interpretation, Revision and Annulment
of the Award
50 The Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
51 Interpretation or Revision: Further Procedures . . . 125
52 Annulment: Further Procedures . . . . . . . . . . . . . . . 126
53 Rules of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . 126
54 Stay of Enforcement of the Award . . . . . . . . . . . . . . 126
55 Resubmission of Dispute after an Annulment . . . . 127
VIII General Provisions
56 Final Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
ArbitrationRules
103
The Rules of Procedure for Arbitration Proceedings (the Arbitration
Rules) of ICSID were adopted by the Administrative Council of the Centre
pursuant to Article 6(1)(c) of the ICSID Convention.
The Arbitration Rules are supplemented by the Administrative and
Financial Regulations of the Centre, in particular by Regulations 14-16,
22-31 and 34(1).
The Arbitration Rules cover the period of time from the dispatch of the
notice of registration of a request for arbitration until an award is rendered
and all challenges possible to it under the Convention have been exhausted.
The transactions previous to that time are to be regulated in accordance
with the Institution Rules.
Arbitration Rules
Chapter I
Establishment of the Tribunal
Rule 1
General Obligations
(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.
(3) The majority of the arbitrators shall be nationals of States other
than the State party to the dispute and of the State whose national is a
party to the dispute, unless the sole arbitrator or each individual
member of the Tribunal is appointed by agreement of the parties.
Where the Tribunal is to consist of three members, a national of either
of these States may not be appointed as an arbitrator by a party without
the agreement of the other party to the dispute. Where the Tribunal is
to consist of five or more members, nationals of either of these States
may not be appointed as arbitrators by a party if appointment by the
other party of the same number of arbitrators of either of these nationalities
would result in a majority of arbitrators of these nationalities.
(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.
ArbitrationRules
104
Rule 2
Method of Constituting
the Tribunal in the Absence
of Previous Agreement
(1) If the parties, at the time of the registration of the request for
arbitration, have not agreed upon the number of arbitrators and the
method of their appointment, they shall, unless they agree otherwise,
follow the following procedure:
(a) the requesting party shall, within 10 days after the registration
of the request, propose to the other party the appointment
of a sole arbitrator or of a specified uneven number
of arbitrators and specify the method proposed for their
appointment;
(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.
(2) The communications provided for in paragraph (1) 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. The parties shall promptly notify the
Secretary-General of the contents of any agreement reached.
(3) At any time 60 days after the registration of the request, if no
agreement on another procedure is reached, either party may inform
the Secretary-General that it chooses the formula provided for in Article
37(2)(b) of the Convention. The Secretary-General shall thereupon
promptly inform the other party that the Tribunal is to be constituted
in accordance with that Article.
Rule 3
Appointment of Arbitrators
to a Tribunal Constituted in Accordance
with Convention Article 37(2)(b)
(1) If the Tribunal is to be constituted in accordance with Article
37(2)(b) of the Convention:
(a) either party shall in a communication to the other party:
ArbitrationRules
105
(i) name two persons, identifying one of them, who shall
not have the same nationality as nor be a national of
either party, as the arbitrator appointed by it, and the
other as the arbitrator proposed to be the President of
the Tribunal; and
(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.
Rule 4
Appointment of Arbitrators
by the Chairman of
the Administrative Council
(1) If the Tribunal is not constituted within 90 days after the dispatch
by the Secretary-General of the notice of registration, or such
other period as the parties may agree, either party may, through the Secretary-General,
address to the Chairman of the Administrative Council
a request in writing to appoint the arbitrator or arbitrators not yet
appointed and to designate an arbitrator to be the President of the Tri-
bunal.
(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.
ArbitrationRules
106
(4) The Chairman shall use his best efforts to comply with that
request within 30 days after its receipt. Before he proceeds to make an
appointment or designation, with due regard to Articles 38 and 40(1) of
the Convention, he shall consult both parties as far as possible.
(5) The Secretary-General shall promptly notify the parties of any
appointment or designation made by the Chairman.
Rule 5
Acceptance of Appointments
(1) The party or parties concerned shall notify the Secretary-General
of the appointment of each arbitrator and indicate the method of
his appointment.
(2) As soon as the Secretary-General has been informed by a party
or the Chairman of the Administrative Council of the appointment of
an arbitrator, he shall seek an acceptance from the appointee.
(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 6
Constitution of the Tribunal
(1) 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.
(2) Before or at the first session of the Tribunal, each arbitrator
shall sign a declaration in the following form:
“To the best of my knowledge there is no reason why I should not
serve on the Arbitral Tribunal constituted by the International
Centre for Settlement of Investment Disputes with respect to a dispute
between ___________________and___________________.
“I shall keep confidential all information coming to my knowledge
as a result of my participation in this proceeding, as well as the contents
of any award made by the Tribunal.
“I shall judge fairly as between the parties, according to the applicable
law, and shall not accept any instruction or compensation
with regard to the proceeding from any source except as provided
in the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States and in the Regulations
and Rules made pursuant thereto.
ArbitrationRules
107
“Attached is a statement of (a) my past and present professional,
business and other relationships (if any) with the parties and (b)
any other circumstance that might cause my reliability for independent
judgment to be questioned by a party. I acknowledge that
by signing this declaration, I assume a continuing obligation
promptly to notify the Secretary-General of the Centre of any
such relationship or circumstance that subsequently arises during
this proceeding.”
Any arbitrator failing to sign a declaration by the end of the first
session of the Tribunal shall be deemed to have resigned.
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.
Rule 8
Incapacity or Resignation
of Arbitrators
(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.
(2) An arbitrator may resign by submitting his resignation to the
other members of the Tribunal and the Secretary-General. If the arbitrator
was appointed by one of the parties, the Tribunal shall promptly
consider the reasons for his resignation and decide whether it consents
thereto. The Tribunal shall promptly notify the Secretary-General of its
decision.
Rule 9
Disqualification of Arbitrators
(1) A party proposing the disqualification of an arbitrator pursuant
to Article 57 of the Convention shall promptly, and in any event
before the proceeding is declared closed, file its proposal with the Secretary-General,
stating its reasons therefor.
(2) The Secretary-General shall forthwith:
(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
ArbitrationRules
108
(b) notify the other party of the proposal.
(3) The arbitrator to whom the proposal relates may, without
delay, furnish explanations to the Tribunal or the Chairman, as the case
may be.
(4) Unless the proposal relates to a majority of the members of the
Tribunal, the other members shall promptly consider and vote on the
proposal in the absence of the arbitrator concerned. If those members
are equally divided, they shall, through the Secretary-General, promptly
notify the Chairman of the proposal, of any explanation furnished by
the arbitrator concerned and of their failure to reach a decision.
(5) Whenever the Chairman has to decide on a proposal to disqualify
an arbitrator, he shall use his best efforts to take that decision
within 30 days after he has received the proposal.
(6) The proceeding shall be suspended until a decision has been
taken on the proposal.
Rule 10
Procedure during a Vacancy
on the Tribunal
(1) The Secretary-General shall forthwith notify the parties and, if
necessary, the Chairman of the Administrative Council of the disqualification,
death, incapacity or resignation of an arbitrator and of the
consent, if any, of the Tribunal to a resignation.
(2) 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.
Rule 11
Filling Vacancies
on the Tribunal
(1) Except as provided in paragraph (2), 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.
(2) In addition to filling vacancies relating to arbitrators appointed
by him, the Chairman of the Administrative Council shall appoint a
person from the Panel of Arbitrators:
(a) to fill a vacancy caused by the resignation, without the consent
of the Tribunal, of an arbitrator appointed by a party;
or
ArbitrationRules
109
(b) at the request of either party, to fill any other vacancy, if no
new appointment is made and accepted within 45 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).
Rule 12
Resumption of Proceeding after Filling a Vacancy
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
Rule 13
Sessions of the Tribunal
(1) The Tribunal shall hold 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 Secretary-General. If upon its constitution
the Tribunal has no President because the parties have agreed
that the President shall be elected by its members, the Secretary-General
shall fix the dates of that session. In both cases, the parties shall be consulted
as far as possible.
(2) The dates of subsequent sessions shall be determined by the
Tribunal, after consultation with the Secretary-General and with the
parties as far as possible.
(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.
ArbitrationRules
110
Rule 14
Sittings of the Tribunal
(1) The President of the Tribunal shall conduct its hearings and
preside at its deliberations.
(2) Except as the parties otherwise agree, the presence of a majority
of the members of the Tribunal shall be required at its sittings.
(3) The President of the Tribunal shall fix the date and hour of its
sittings.
Rule 15
Deliberations of the Tribunal
(1) The deliberations of the Tribunal shall take place in private and
remain secret.
(2) Only members of the Tribunal shall take part in its deliberations.
No other person shall be admitted unless the Tribunal decides
otherwise.
Rule 16
Decisions of the Tribunal
(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.
(2) Except as otherwise provided by these Rules or decided by the
Tribunal, it may take any decision by correspondence among its members,
provided that all of them are consulted. Decisions so taken shall be
certified by the President of the Tribunal.
Rule 17
Incapacity of the President
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.
Rule 18
Representation of the Parties
(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.
ArbitrationRules
111
(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
Rule 19
Procedural Orders
The Tribunal shall make the orders required for the conduct of the
proceeding.
Rule 20
Preliminary Procedural Consultation
(1) 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:
(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.
(2) In the conduct of the proceeding the Tribunal shall apply any
agreement between the parties on procedural matters, except as otherwise
provided in the Convention or the Administrative and Financial
Regulations.
Rule 21
Pre-Hearing Conference
(1) At the request of the Secretary-General or at the discretion of
the President of the Tribunal, a pre-hearing conference between the Tri-
ArbitrationRules
112
bunal 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.
Rule 22
Procedural Languages
(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
instrument 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.
Rule 23
Copies of Instruments
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.
Rule 24
Supporting Documentation
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.
ArbitrationRules
113
Rule 25
Correction of Errors
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.
Rule 26
Time Limits
(1) Where required, time limits shall be fixed by the Tribunal by
assigning dates for the completion of the various steps in the proceeding.
The Tribunal may delegate this power to its President.
(2) The Tribunal may extend any time limit that it has fixed. If the
Tribunal is not in session, this power shall be exercised by its President.
(3) 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.
Rule 27
Waiver
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.
Rule 28
Cost of Proceeding
(1) Without prejudice to the final decision on the payment of the
cost of the proceeding, the Tribunal may, unless otherwise agreed by the
parties, decide:
(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;
(b) with respect to any part of the proceeding, that the related
costs (as determined by the Secretary-General) shall be
borne entirely or in a particular share by one of the parties.
ArbitrationRules
114
(2) Promptly after the closure of the proceeding, each party shall
submit to the Tribunal a statement of costs reasonably incurred or
borne by it in the proceeding and the Secretary-General shall 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. The Tribunal
may, before the award has been rendered, request the parties and the
Secretary-General to provide additional information concerning the
cost of the proceeding.
Chapter IV
Written and Oral Procedures
Rule 29
Normal 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.
Rule 31
The Written Procedure
(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,
ArbitrationRules
115
the parties may instead agree that one of them shall, for the purposes of
paragraph (1), be considered as the requesting party.
(3) A memorial shall contain: a statement of the relevant facts; a
statement of law; and the submissions. A counter-memorial, reply or
rejoinder shall contain an admission or denial of the facts stated in the
last previous pleading; any additional facts, if necessary; observations
concerning the statement of law in the last previous pleading; a statement
of law in answer thereto; and the submissions.
Rule 32
The Oral Procedure
(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.
(2) Unless either party objects, the Tribunal, after consultation
with the Secretary-General, may allow other persons, besides the parties,
their agents, counsel and advocates, witnesses and experts during
their testimony, and officers of the Tribunal, to attend or observe all or
part of the hearings, subject to appropriate logistical arrangements. The
Tribunal shall for such cases establish procedures for the protection of
proprietary or privileged information.
(3) The members of the Tribunal may, during the hearings, put
questions to the parties, their agents, counsel and advocates, and ask
them for explanations.
Rule 33
Marshalling of Evidence
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.
Rule 34
Evidence: General Principles
(1) The Tribunal shall be the judge of the admissibility of any evidence
adduced and of its probative value.
(2) The Tribunal may, if it deems it necessary at any stage of the
proceeding:
ArbitrationRules
116
(a) call upon the parties to produce documents, witnesses and
experts; and
(b) visit any place connected with the dispute or conduct
inquiries there.
(3) The parties shall cooperate with the Tribunal in the production
of the evidence and in the other measures provided for in paragraph
(2). The Tribunal shall take formal note of the failure of a party to
comply with its obligations under this paragraph and of any reasons
given for such failure.
(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.
Rule 35
Examination of Witnesses and Experts
(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.”
Rule 36
Witnesses and Experts: Special Rules
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.
ArbitrationRules
117
Rule 37
Visits and Inquiries;
Submissions of Non-disputing Parties
(1) 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.
(2) After consulting both parties, the Tribunal may allow a person
or entity that is not a party to the dispute (in this Rule called the “nondisputing
party”) to file a written submission with the Tribunal regarding
a matter within the scope of the dispute. In determining whether to
allow such a filing, the Tribunal shall consider, among other things, the
extent to which:
(a) the non-disputing party submission would assist the Tribunal
in the determination of a factual or legal issue related
to the proceeding by bringing a perspective, particular
knowledge or insight that is different from that of the disputing
parties;
(b) the non-disputing party submission would address a
matter within the scope of the dispute;
(c) the non-disputing party has a significant interest in the
proceeding.
The Tribunal shall ensure that the non-disputing party submission
does not disrupt the proceeding or unduly burden or unfairly prejudice
either party, and that both parties are given an opportunity to present
their observations on the non-disputing party submission.
Rule 38
Closure of the Proceeding
(1) When the presentation of the case by the parties is completed,
the proceeding shall be declared closed.
(2) 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.
ArbitrationRules
118
Chapter V
Particular Procedures
Rule 39
Provisional Measures
(1) At any time after the institution of the proceeding, a party may
request that provisional measures for the preservation of its rights be
recommended by the Tribunal. The request shall specify the rights to be
preserved, the measures the recommendation of which is requested,
and the circumstances that require such measures.
(2) The Tribunal shall give priority to the consideration of a
request made pursuant to paragraph (1).
(3) 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.
(4) The Tribunal shall only recommend provisional measures, or
modify or revoke its recommendations, after giving each party an
opportunity of presenting its observations.
(5) If a party makes a request pursuant to paragraph (1) before the
constitution of the Tribunal, the Secretary-General shall, on the application
of either party, fix time limits for the parties to present observations
on the request, so that the request and observations may be
considered by the Tribunal promptly upon its constitution.
(6) Nothing in this Rule shall prevent the parties, provided that
they have so stipulated in the agreement recording their consent, from
requesting any judicial or other authority to order provisional measures,
prior to or after the institution of the proceeding, for the preservation
of their respective rights and interests.
Rule 40
Ancillary Claims
(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.
(2) An incidental or additional claim shall be presented not later
than in the reply and a counter-claim no later than in the countermemorial,
unless the Tribunal, upon justification by the party presenting
the ancillary claim and upon considering any objection of the other
party, authorizes the presentation of the claim at a later stage in the
proceeding.
ArbitrationRules
119
(3) The Tribunal shall fix a time limit within which the party
against which an ancillary claim is presented may file its observations
thereon.
Rule 41
Preliminary Objections
(1) Any objection that the dispute or any ancillary claim is not
within the jurisdiction of the Centre or, for other reasons, is not within
the competence of the Tribunal shall be made as early as possible. A
party shall file the objection with the Secretary-General no later than
the expiration of the time limit fixed for the filing of the countermemorial,
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.
(2) The Tribunal may on its own initiative consider, at any stage of
the proceeding, whether the dispute or any ancillary claim before it is
within the jurisdiction of the Centre and within its own competence.
(3) Upon the formal raising of an objection relating to the dispute,
the Tribunal may decide to suspend the proceeding on the merits. The
President of the Tribunal, after consultation with its other members,
shall fix a time limit within which the parties may file observations on
the objection.
(4) The Tribunal shall decide whether or not the further procedures
relating to the objection made pursuant to paragraph (1) shall be
oral. It may deal with the objection as a preliminary question or join it
to the merits of the dispute. If the Tribunal overrules the objection or
joins it to the merits, it shall once more fix time limits for the further
procedures.
(5) Unless the parties have agreed to another expedited procedure
for making preliminary objections, a party may, no later than 30 days
after the constitution of the Tribunal, and in any event before the first
session of the Tribunal, file an objection that a claim is manifestly without
legal merit. The party shall specify as precisely as possible the basis
for the objection. The Tribunal, after giving the parties the opportunity
to present their observations on the objection, shall, at its first session
or promptly thereafter, notify the parties of its decision on the objection.
The decision of the Tribunal shall be without prejudice to the right
of a party to file an objection pursuant to paragraph (1) or to object, in
the course of the proceeding, that a claim lacks legal merit.
(6) If the Tribunal decides that the dispute is not within the jurisdiction
of the Centre or not within its own competence, or that all
claims are manifestly without legal merit, it shall render an award to
that effect.
ArbitrationRules
120
Rule 42
Default
(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.
(2) The Tribunal shall promptly notify the defaulting party of such
a request. Unless it 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:
(a) if that party had failed to file a pleading or any other instrument
within the time limit fixed therefor, fix a new time
limit for its filing; or
(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.
Rule 43
Settlement and Discontinuance
(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.
(2) If the parties file with the Secretary-General the full and signed
text of their settlement and in writing request the Tribunal to embody
such settlement in an award, the Tribunal may record the settlement in
the form of its award.
ArbitrationRules
121
Rule 44
Discontinuance at Request of a Party
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
Rule 46
Preparation of the Award
The award (including any individual or dissenting opinion) shall be
drawn up and signed within 120 days after closure of the proceeding.
The Tribunal may, however, extend this period by a further 60 days if it
would otherwise be unable to draw up the award.
Rule 47
The Award
(1) The award shall be in writing and shall contain:
(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 consti-
tution;
ArbitrationRules
122
(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;
(g) a statement of the facts as found by the Tribunal;
(h) the submissions of the parties;
(i) the decision of the Tribunal on every question submitted to
it, together with the reasons upon which the decision is
based; and
(j) any decision of the Tribunal regarding the cost of the
proceeding.
(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.
Rule 48
Rendering of the Award
(1) Upon signature by the last arbitrator to sign, the SecretaryGeneral
shall promptly:
(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
(b) dispatch a certified copy of the award (including individual
opinions and statements of dissent) to each party, indicating
the date of dispatch on the original text and on all
copies.
(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.
(4) The Centre shall not publish the award without the consent of
the parties. The Centre shall, however, promptly include in its publications
excerpts of the legal reasoning of the Tribunal.
ArbitrationRules
123
Rule 49
Supplementary Decisions and Rectification
(1) Within 45 days after the date on which the award was rendered,
either party may request, pursuant to Article 49(2) of the Convention,
a supplementary decision on, or the rectification of, the award. Such a
request shall be addressed in writing to the Secretary-General. The
request shall:
(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) 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 the request;
(b) notify the parties of the registration;
(c) transmit to the other party a copy of the request and of any
accompanying documentation; 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.
(3) The President of the Tribunal shall consult the members on
whether it is necessary for the Tribunal to meet in order to consider the
request. The Tribunal shall fix a time limit for the parties to file their
observations on the request and shall determine the procedure for its
consideration.
(4) Rules 46-48 shall apply, mutatis mutandis, to any decision of the
Tribunal pursuant to this Rule.
(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.
ArbitrationRules
124
Chapter VII
Interpretation, Revision and
Annulment of the Award
Rule 50
The Application
(1) An application for the interpretation, revision or annulment of
an award 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 application;
(c) state in detail:
(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;
(iii) in an application for annulment, pursuant to Article
52(1) of the Convention, the grounds on which it is
based. These grounds are limited to the following:
– that the Tribunal was not properly constituted;
– that the Tribunal has manifestly exceeded its powers;
– that there was corruption on the part of a member
of the Tribunal;
– that there has been a serious departure from a fundamental
rule of procedure;
– that the award has failed to state the reasons on
which it is based;
(d) be accompanied by the payment of a fee for lodging the
application.
(2) Without prejudice to the provisions of paragraph (3), upon
receiving an application and the lodging fee, the Secretary-General shall
forthwith:
(a) register the application;
(b) notify the parties of the registration; and
ArbitrationRules
125
(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.
Rule 51
Interpretation or Revision:
Further Procedures
(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.
ArbitrationRules
126
(2) If all members of the Tribunal express their willingness to take
part in the consideration of the application, the Secretary-General shall
so notify the members of the Tribunal and the parties. Upon dispatch
of these notices the Tribunal shall be deemed to be reconstituted.
(3) If the Tribunal cannot be reconstituted in accordance with
paragraph (2), the Secretary-General shall so notify the parties and
invite them 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.
Rule 52
Annulment: Further Procedures
(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.
(2) The Committee shall be deemed to be constituted on the date
the Secretary-General notifies the parties that all members have
accepted their appointment. Before or at the first session of the Committee,
each member shall sign a declaration conforming to that set
forth in Rule 6(2).
Rule 53
Rules of Procedure
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.
Rule 54
Stay of Enforcement
of the Award
(1) The party applying for the interpretation, revision or annulment
of an award may in its application, and either party may at any
time before the final disposition of the application, request a stay in the
enforcement of part or all of the award to which the application relates.
The Tribunal or Committee shall give priority to the consideration of
such a request.
(2) If an application for the revision or annulment of an award
contains a request for a stay of its enforcement, the Secretary-General
shall, together with the notice of registration, inform both parties of the
provisional stay of the award. As soon as the Tribunal or Committee is
constituted it shall, if either party requests, rule within 30 days on
ArbitrationRules
127
whether such stay should be continued; unless it decides to continue the
stay, it shall automatically be terminated.
(3) If a stay of enforcement has been granted pursuant to paragraph
(1) or continued pursuant to paragraph (2), the Tribunal or
Committee may at any time modify or terminate the stay at the request
of either party. All stays shall automatically terminate on the date on
which a final decision is rendered on the application, except that a
Committee granting the partial annulment of an award may order the
temporary stay of enforcement of the unannulled portion in order to
give either party an opportunity to request any new Tribunal constituted
pursuant to Article 52(6) of the Convention to grant a stay pursuant
to Rule 55(3).
(4) A request pursuant to paragraph (1), (2) (second sentence) or
(3) shall specify the circumstances that require the stay or its modification
or termination. A request shall only be granted after the Tribunal
or Committee has given each party an opportunity of presenting its
observations.
(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.
Rule 55
Resubmission of Dispute
after an Annulment
(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 arbi-
trators, and appointed by the same method, as the original
one.
(3) If the original award had only been annulled in part, the new
Tribunal shall not reconsider any portion of the award not so annulled.
It may, however, in accordance with the procedures set forth in Rule 54,
stay or continue to stay the enforcement of the unannulled portion of
the award until the date its own award is rendered.
(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.
ArbitrationRules
128