Non-Disputing Party and Non-Disputing Treaty Party Submissions - Additional Facility Arbitration (2022 Rules)

Any person or entity that is not a party to the dispute can apply for permission to file a written submission in the case (Additional Facility Arbitration Rule 77).

Similarly, a State which is not a party to the dispute but which is a Contracting Party to the treaty upon which consent to the ICSID Additional Facility arbitration was based can make a submission on certain questions as a matter of right (Additional Facility Arbitration Rule 78).

Non-disputing Party Submissions (Additional Facility Arbitration Rule 77)

A non-disputing party (NDP) is an individual or entity that is not a party to the dispute but that can assist the Tribunal in deciding the dispute by providing a perspective different from that of the parties. Upon request, the NDP may be permitted to file a written submission in the proceeding, for example because they have particular expertise concerning the subject-matter of the dispute.

In deciding whether to allow the NDP submission, the Tribunal must take into account certain factors:

• whether the submission would address a matter within the scope of the dispute
• whether the submission would assist the Tribunal by providing a perspective, particular knowledge or insight different from the disputing parties
• whether the non–disputing party has a significant interest in the proceeding
• the identity, activities, organization and ownership of the non-disputing party
• whether any person or entity will provide the non-disputing party with financial or other assistance to file the submission (Additional Facility Arbitration Rule 77(2)).

The application to file an NDP submission should address these factors and all other relevant circumstances.

The parties are subsequently invited to file their observations on the application, including whether there should be any condition for filing the submission (Additional Facility Arbitration Rule 77(3)). The Tribunal must issue its decision on the application within 30 days after the last submission on the application (Additional Facility Arbitration Rule 77(5)).

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If the Tribunal permits the NDP to file a written submission, it must ensure that the NDP participation does not disrupt the proceeding or unduly burden or unfairly prejudice either party (Additional Facility Arbitration Rule 77(4)). The Tribunal can impose conditions, including with respect to the time limit, format, length, scope, or publication of the submission. For example, Tribunals often order page limits.

If the NDP requires access to non-public documents filed in the proceeding to formulate its submission (e.g., the parties’ pleadings), the Tribunal may allow such access, unless either party objects (Additional Facility Arbitration Rule 77(6)). The parties may subsequently make observations on the NDP submission.

Some treaties address the right of non-disputing parties to participate in an arbitration and the criteria applicable to such participation (see e.g., Canada-Peru Free Trade Agreement (2009), Article 836).

Non-disputing Treaty Party Submissions (Additional Facility Arbitration Rule 78)

State Parties to a treaty which are not parties to the dispute (NDTP) have a right to make a submission on the interpretation of that treaty if it is at issue in the dispute and if consent to arbitration is based on it. A regional economic integration organization (REIO) which is a Party to the relevant treaty could also act as an NDTP.

Additional Facility Arbitration Rule 78 does not apply to participation for other purposes, in which case the NDTP would have to apply for permission to participate in the proceeding as an NDP under Additional Facility Arbitration Rule 77 and would have to meet the conditions in that rule.

Before allowing an NDTP submission, the Tribunal will consult with the parties to determine whether such submission should be made orally, in writing, or both. 

As with NDP submissions, the Tribunal must ensure that NDTP participation does not disrupt the proceeding or unduly burden or unfairly prejudice either party (Additional Facility Arbitration Rule 78(3)). The Tribunal may impose conditions on the making of the NDTP submission, and the parties may make observations on the submission.

NDTPs may also have a right under the treaty upon which consent to arbitration is based to make submissions on a question of application or interpretation of the treaty (see e.g., Canada-Peru Free Trade Agreement (2009), Article 832).