A request for arbitration

Any disputing party, country or investor wishing to settle a dispute through arbitration may initiate a proceeding by submitting a request for arbitration (in writing) to the Secretary-General. Accordingly, the Secretary-General shall send a copy of the application to the other party (Article 36.1 of the ICSID Convention).

The request for arbitration must include the following information: (i) The matters in dispute, (ii) The disputing parties, (iii) The parties’ consent to the arbitration institution in accordance with the rules of proceedings by arbitration and conciliation institutions (Article 36.2 of the ICSID Convention).

The Secretary-General shall register the request unless the Secretary-General finds (based on the information contained in the application) that the dispute is clearly outside the jurisdiction of the centre. In this case, the Secretary-General shall promptly notify the parties or refuse to register (Article 36.3 of the ICSID Convention).

The procedure for registering a request for arbitration is essentially an application screening procedure. Through the application procedure for arbitration, the Secretary-General can eliminate disputes that are not within the jurisdiction of ICSID. This content is specified in Article 25 of the ICSID convention, including:

• ICSID has jurisdiction over any disputes arising directly from investment activities. Other commercial disputes are not under the jurisdiction of ICSID.
• The subject of the dispute is a Contracting State and a national of another Contracting State. Inside:

A Contracting State may also include any agency, or constituent organization, of which it has notified ICSID.

Nationals of the other Contracting State include: natural or juridical persons of another Contracting State. Except in the case of an auxiliary mechanism (since 1987, ICSID has introduced an auxiliary rule, which allows the ICSID Secretariat to handle certain types of disputes between a contracting state and foreign nationals that are not covered under the jurisdiction of the ICSID Secretariat. However, the value of an auxiliary mechanism dispute settlement decision is only a recommendation to the disputing parties and is not binding like an ICSID arbitration award.

• Consensus of the disputing parties. The ICSID arbitration procedure requires the consent of the disputing parties. The fact that a country has signed and ratified the ICSID Convention does not mean that a dispute involving that country is automatically resolved by the ICSID Arbitration rules, but requires an additional “consensus” procedure.

Constitution of the Tribunal

According to the provisions of Article 37 of the ICSID Convention, the arbitral tribunal shall be held immediately after the Secretary-General registers the request for arbitration from the investor in accordance with the provisions of Article 36 of the ICSID Convention.

The number of arbitral tribunal members who are one arbitrator or more (an odd number of members) shall be appointed as the parties agree. In case the parties do not agree on the number of members and the method of arbitrator selection, the arbitral tribunal will consist of 03 arbitrators, each party appoints one arbitrator and the third arbitrator will be the chairman of the council. arbitrator appointed by the parties by agreement (Article 37.2 of the ICSID Convention).

In the event that an arbitral tribunal is not constituted within 90 days from the date of notification of the request for arbitration by the Secretary-General under Article 36.3 of the ICSID Convention or within such other period as the parties agreed, the chairperson shall appoint an arbitrator upon request by a party and after consultation with the parties. The arbitrator appointed by the chair under Article 38 of the ICSID Convention shall not be a member of the country in dispute or the investor’s own country in the case (Article 38 of the ICSID Convention). However, in cases where the parties appoint themselves, the restriction on the nationality of the arbitrator as mentioned in Article 38 of the ICSID Convention does not apply (under Article 39 of the ICSID Convention).

Case administration meeting

Time to open the case management meeting: Within 60 days from the date of establishment of the arbitration council, unless otherwise agreed by the parties. The case management meeting may be held in person, by phone, or by videoconference. Issues discussed at the case administration meeting include procedural issues and the schedule of arbitration proceedings.

Submit a submission

Subject to rule 31, the parties may agree on the number of submissions and the time period for submissions.

Round 1: Plaintiff’s Statement of Claim/Memorial and Defendant’s Statement of Defense/Counter-Memorial.

Round 2: Plaintiff’s Answer and Respondent’s Rejoinder

The arbitration council may, at its sole discretion or by agreement with the parties, order the parties to submit additional submissions.

Oral Procedure

The proceedings of the hearing are as follows:

• Opening remarks,
• Confronting witnesses (if there are witnesses),
• Expert Q&A (if there are experts),
• Last statement

The public hearing will be made if the parties agree. In addition, witness confrontation is carried out in accordance with rule 34(2).

The Award

The award shall be issued in writing and shall be signed by all voting members of the arbitral tribunal. The award shall hear all matters submitted to the arbitral tribunal and provide explanations on the basis of the award. All members of the arbitral tribunal may attach their own personal views to the award, whether they have objections to the majority, or argue their objections. The award shall not be released to the public without the consent of the parties (Article 48 of the ICSID Convention).

Interpretation, correction and cancellation of the judgment

If any dispute arises between the parties as to the meaning or scope of the award, the parties may request an interpretation of the award by filing an application with the Secretary-General. The request shall be submitted to the arbitral tribunal that issued the award. If this is not possible, a new arbitral tribunal will be established. If it determines that a review of the case is necessary, the arbitral tribunal may consider suspending enforcement of the award (Article 50 of the ICSID Convention).

Similar to the case of correction and annulment of an award, either party may request by submitting a written request to the Secretary-General in accordance with Articles 51 and 52 of the ICSID Convention.

Recognition and enforcement of judgments

This award is binding upon the parties and shall not be subject to appeal or to any other means except those provided for in the convention. Each party shall comply with the terms of the award except that enforcement of the award is deferred under the relevant provisions of this Agreement.

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