(1) The Tribunal shall make the orders and decisions required for the conduct of the proceeding.
(2) Orders and decisions may be made by any appropriate means of communication, shall indicate the reasons upon which they are made, and may be signed by the President on behalf of the Tribunal.
(3) The Tribunal shall apply any agreement of the parties on procedural matters, subject to Rule 1(3), and to the extent that the agreement does not conflict with the ICSID Additional Facility Administrative and Financial Regulations.
(4) The Tribunal shall consult with the parties prior to making an order or decision it is authorized by these Rules to make on its own initiative.
If a party knows or should have known that an applicable rule, agreement of the parties, or any order or decision of the Tribunal or the Secretary-General has not been complied with, and does not object promptly, then that party shall be deemed to have waived its right to object to that non-compliance, unless the Tribunal decides that there are special circumstances justifying the failure to object promptly.
If a question of procedure arises which is not covered by these Rules or by any agreement of the parties, the Tribunal shall decide the question.
(1) The Tribunal shall hold a first session to address the procedure, including the matters listed in paragraph (4).
(2) The first session may be held in person or remotely, by any means that the Tribunal deems appropriate. The agenda, method and date of the first session shall be determined by the President of the Tribunal after consulting with the other members and the parties.
(3) The first session shall be held within 60 days after the constitution of the Tribunal or such other period as the parties may agree. If the President of the Tribunal determines that it is not possible to convene the parties and the other members within this period, the Tribunal shall decide whether to hold the first session solely between the President of the Tribunal and the parties, or solely among the Tribunal members based on the parties’ written submissions.
(4) Before the first session, the Tribunal shall invite the parties’ views on procedural matters, including:
(a) the applicable arbitration rules;
(b) the division of advances payable pursuant to ICSID Additional Facility Administrative and Financial Regulation 7;
(c) the procedural language(s), translation and interpretation;
(d) the method of filing and routing of documents;
(e) the number, length, type and format of written submissions;
(f) the seat of arbitration;
(g) the place of hearings and whether a hearing will be held in person or remotely;
(h) whether there will be requests for production of documents as between the parties and, if so, the scope, timing and procedure for such requests;
(i) the procedural calendar;
(j) the manner of making recordings and transcripts of hearings;
(k) the publication of documents and recordings;
(l) the treatment of confidential or protected information; and
(m) any other procedural matter raised by either party or the Tribunal.
(5) The Tribunal shall issue an order recording the parties’ agreements and any Tribunal decisions on the procedure within 15 days after the later of the first session or the last written submission on procedural matters addressed at the first session.
(1) The parties shall file the following written submissions:
(a) a memorial by the requesting party;
(b) a counter-memorial by the other party;
and, unless the parties agree otherwise:
(c) a reply by the requesting party; and
(d) a rejoinder by the other party.
(2) A memorial shall contain a statement of the relevant facts, law and arguments, and the request for relief. A counter-memorial shall contain a statement of the relevant facts, including an admission or denial of facts stated in the memorial, and any necessary additional facts, a statement of law in reply to the memorial, arguments, and the request for relief. A reply and rejoinder shall be limited to responding to the previous written submission and addressing any relevant facts that are new or could not have been known prior to filing the reply or rejoinder.
(3) A party may file unscheduled written submissions, observations or supporting documents only after obtaining leave of the Tribunal, unless the filing of such documents is provided for by these Rules. The Tribunal may grant such leave upon a timely and reasoned application if it finds such written submissions, observations or supporting documents are necessary in view of all relevant circumstances.
With a view to conducting an expeditious and cost-effective proceeding, the Tribunal shall convene one or more case management conferences with the parties at any time after the first session to:
(a) identify uncontested facts;
(b) clarify and narrow the issues in dispute; or
(c) address any other procedural or substantive issue related to the resolution of the dispute.
The seat of arbitration shall be agreed on by the parties or, absent agreement, shall be determined by the Tribunal having regard to the circumstances of the proceeding and after consulting with the parties.
(1) The Tribunal shall hold one or more hearings, unless the parties agree otherwise.
(2) The President of the Tribunal shall determine the date, time and method of holding hearings, after consulting with the other members of the Tribunal and the parties.
(3) A hearing in person may be held at any place agreed to by the parties after consulting with the Tribunal and the Secretary-General. If the parties do not agree on the place of a hearing, it shall be held at a place determined by the Tribunal.
(4) Any member of the Tribunal may put questions to the parties and ask for explanations at any time during a hearing.
The participation of a majority of the members of the Tribunal by any appropriate means of communication shall be required at the first session, case management conferences, hearings and deliberations, except as provided in these Rules or unless the parties agree otherwise.
(1) The deliberations of the Tribunal shall take place in private and remain confidential.
(2) The Tribunal may deliberate at any place and by any means it considers appropriate.
(3) The Tribunal may be assisted by the Secretary of the Tribunal at its deliberations. No other person shall assist the Tribunal at its deliberations, unless the Tribunal decides otherwise and notifies the parties.
(4) The Tribunal shall deliberate on any matter for decision immediately after the last submission on that matter.
The Tribunal shall make decisions by a majority of the votes of all its members. Abstention shall count as a negative vote.