Suspension, Settlement, and Discontinuance – Additional Facility Arbitration (2022 Rules)

The proceeding may be suspended or discontinued by agreement of the parties or upon the request of a party (Additional Facility Arbitration Rule 64). Proceedings may also be discontinued if the parties fail to act (Additional Facility Arbitration Rule 67) or to pay the requested advances on costs (Additional Facility Administrative and Financial Regulation 8).

Suspension (Additional Facility Arbitration Rule 64) 

The parties may agree to suspend the proceeding at any time (Additional Facility Arbitration Rule 64(2)) and may agree to extend the suspension as needed (Additional Facility Arbitration Rule 64(5)). They should notify the Tribunal or the Secretary-General (if the Tribunal has not yet been constituted or if there is a vacancy on the Tribunal) of the period of suspension and any agreed terms, including any necessary changes to the procedural calendar once the proceeding resumes. The Tribunal will incorporate these terms into an order (Additional Facility Arbitration Rule 64(4)).

The Tribunal may also suspend the proceeding or extend an existing suspension upon the request of a party or on its own initiative (Additional Facility Arbitration Rule 64(2) and (6)), after giving both parties an opportunity to make observations. 

Settlement and Discontinuance (Additional Facility Arbitration Rule 65) 

At any time before the Award is rendered, the parties may jointly request that the Tribunal discontinue the proceeding if they settle the dispute or for any other reason. The Tribunal (or the Secretary-General if the Tribunal is not yet constituted) can issue an order taking note of the discontinuance of the proceeding (Additional Facility Arbitration Rule 65(1) and (4)). Alternatively, the parties can ask the Tribunal to render an Award embodying the settlement agreement (Additional Facility Arbitration Rule 65(2)(b)). If so, the parties must file the full and signed text of their settlement agreement.

Discontinuance at Request of a Party (Additional Facility Arbitration Rule 66) 

If one party requests the discontinuance of the proceeding, the other party will be invited to state whether it agrees with the discontinuance (Additional Facility Arbitration Rule 66). If that party objects, the proceeding will continue. However, if that party agrees or does not object within the fixed time limit, the party will be presumed to have consented to the discontinuance.  Accordingly, the Tribunal or the Secretary-General will issue an order taking note of the discontinuance of the proceeding. 

Discontinuance for Failure of Parties to Act (Additional Facility Arbitration Rule 67) 

Failure to act in a proceeding may lead to the discontinuance of the proceeding. If the parties fail to take any procedural step for more than 150 consecutive days, they will be notified of the time elapsed and given 30 days to take action to avoid discontinuance (Additional Facility Arbitration Rule 67(1) and (3)). If neither party takes any action to continue the proceeding within the 30 days, the Tribunal or the Secretary-General will issue an order of discontinuance (Additional Facility Arbitration Rule 67(2) and (4)).

This rule does not apply if a suspension of the proceeding has been agreed upon under Additional Facility Arbitration Rule 64. 

Discontinuance for Lack of Payment of Required Advances (Additional Facility Administrative and Financial Regulation 8) 

Both parties are responsible for paying the advances to meet the costs of the proceeding unless the parties agree otherwise (Additional Facility Administrative and Financial Regulation 7(1)). Failure to do so may lead to the discontinuance of the proceeding. 

If the amounts requested are not paid in full within 30 days of a request, the Secretary-General informs both parties of the default and gives either of them an opportunity to make the outstanding payment (Additional Facility Administrative and Financial Regulation 8(2)(a)). 

If any part of the required payment remains outstanding 15 days after notice of default is given, the Secretary-General may suspend the proceeding until payment is made, after giving notice to the parties and the Tribunal (Additional Facility Administrative and Financial Regulation 8(2)(b)). 

If any proceeding is stayed for non-payment for more than 90 consecutive days, the Secretary-General may discontinue the proceeding, after giving notice to the parties and the Tribunal (Additional Facility Administrative and Financial Regulation 8(2)(c)). 

Effect of the Discontinuance

An order taking note of the discontinuance of a proceeding does not dispose of the claims raised by the parties on their merits.  The claims can therefore be raised again in subsequent proceedings. 

An Award embodying the parties’ settlement agreement pursuant to Additional Facility Arbitration Rule 65(2)(b) is an Award under Additional Facility Arbitration Rule 70 for the purposes of recognition and enforcement.