How to file an Application for Access and Request - Additional Facility Arbitration (2006 Rules)

There are two steps necessary to commence arbitration under the Additional Facility. A party must:  (i) request and obtain the Secretary-General’s approval of an agreement to access the Additional Facility (Application for Access); and (ii) submit a request for arbitration to the Secretary-General (the Request for Arbitration). A party can take these two steps at the same time, in one document, or in separate phases.

The conditions for access to the Additional Facility are contained in Article 2 and Article 4 of the rules governing the administration of proceedings under the Additional Facility by the ICSID Secretariat (Additional Facility Rules).

Formal Requirements, Information and Documentation

The Application for Access to the Additional Facility must comply with Article 4 of the Additional Facility Rules.

The Application for Access must be:

• written in one of the official languages of the Centre (English, French or Spanish) (Administrative and Financial Regulation 34);
• dated; and
• signed by the requesting party or its duly authorized representative. If the request is signed by a representative, it must enclose proof of the authorization, e.g., a power of attorney or a letter of engagement.

The Application for Access must include:

• Name and contact details of all parties (including electronic mail address, street address and telephone).
• A copy of an agreement concluded or proposed to be concluded providing for consent to arbitration proceedings under the Additional Facility in respect of existing or future disputes.
• A provision in such agreement that contemplates a legal dispute between a State (or a constituent subdivision or agency of a State) and a national of another State, which is not within the jurisdiction of the Centre under the ICSID Convention. The Rules contemplate two different scenarios:
  • Article 2(a) of the Additional Facility Rules: the dispute arises directly out of an investment, but either the State party to the dispute or the State whose national is a party to the dispute is not an ICSID Member State. In this case, both parties must give their consent to the jurisdiction of the Centre under Article 25 of the ICSID Convention if the jurisdictional requirements rationae personae of that Article have been met at the time proceedings are instituted (Article 2(a) and Article 4(2) of the Additional Facility Rules); or
  • Article 2(b) of the Additional Facility Rules: the dispute does not arise directly out of an investment, provided that either the State party to the dispute or the State whose national is a party to the dispute is an ICSID Member State. In this case, the underlying transaction must have features which distinguish it from an ordinary commercial transaction (Article 2(b) and Article 4(3) of the Additional Facility Rules).

The Request for Arbitration

Once the Application for Access has been approved, a party may commence arbitration under the Additional Facility by submitting a Request for Arbitration to the Secretary-General. Alternatively, the Request for Arbitration can be submitted concurrently with an Application for Access in respect of an existing dispute.

The process for filing the request is governed by Articles 2 and 3 of the Arbitration (Additional Facility) Rules and the Administrative and Financial Regulations (Regulation 16, Regulation 30 and Regulation 34(1)).

Formal Requirements, Information and Documentation

The request for arbitration must comply with Articles 2 and 3 of the Arbitration (Additional Facility) Rules.

The request must be:

• written in one of the official languages of the Centre (English, French or Spanish) (Administrative and Financial Regulation 34);
• dated; and
• signed by the requesting party or its duly authorized representative. If the request is signed by a representative, it must enclose proof of the authorization, e.g., a power of attorney or a letter of engagement.

The request must include:

• Name and contact details of all parties (including mailing address, telephone and fax numbers and e-mail if available).
• The relevant provisions of the instruments recording the parties’ consent to refer the dispute to arbitration.
• Date of approval of access by the Secretary-General.
• If the consent is in a contract, the request must enclose a copy of the signed contract and its effective date.
• If the consent is in a treaty or law, the request must enclose copies of such instruments and evidence of their entry into force (e.g., an extract of the domestic law showing the date).
• Information concerning the issues in dispute and an indication of the amount involved, if any.
• If the requesting party is a juridical person, a statement that it has taken all necessary internal actions to authorize the request. The statement must be supported by evidence, e.g., a resolution of the board of directors.

Optional Information: The request may include any agreement or proposal by the parties regarding the number of arbitrators and the method of their appointment, and any other agreements concerning the settlement of the dispute (Article 3(2) of the Arbitration (Additional Facility) Rules).

Submitting the request for conciliation: A request and all supporting documentation should be submitted as follows: upload onto ICSID's document sharing platform ("Box"); and transmittal to the ICSID Secretariat's email.

1. Upload onto Box

In advance of the transmittal of a Request by email please contact the ICSID Secretariat ICSIDsecretariat@worldbank.org to request the creation of a folder on Box and access instructions.

2. Transmittal by email

The Request and all supporting documentation (including a copy of the lodging fee wire transfer order) should be sent to ICSIDsecretariat@worldbank.org.

Please note that ICSID's server does not accept emails larger than 25 MB. For submissions exceeding this size, please indicate in your email (attaching the Request/Application) that the supporting documentation will be filed via Box only. Alternatively, any supporting documentation exceeding 25 MB may be split into several individual emails (not exceeding 25 MB each).

The request for arbitration shall designate each party to the dispute and provide their contact information, including electronic mail address, street address and telephone number.

Documents which are enclosed with the request and which are not in English, French or Spanish must be accompanied by a translation into one of these languages. 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 (Administrative and Financial Regulation 30).

Lodging Fee: A non-refundable fee, US$25,000 under the current Schedule of Fees, must be paid on or before lodging the request. The fee is payable by the party filing the request or by both parties if the request is made jointly.

The fee should be paid by wire transfer. Wire transfer instructions may be obtained by contacting the ICSID Secretariat. A copy of the wire transfer order should be filed with the request.