9 Other Procedures
Jeffery Commission, Rahim Moloo
- Place of arbitration
9.01 The framework for an ICSID Convention arbitration is, in the main, predictable and straightforward, consistent with the terms of the Convention, Regulations and Rules. ICSID has schematically set out what it describes as ‘the steps in the process’ in an ICSID arbitration in an easy-to-follow flow chart from filing of a request for arbitration through registration, tribunal constitution, first session, written procedure, oral procedure, deliberations, and (p. 146) award.1 What this flow chart is not able to anticipate with much certainty, however, is the potential impact of certain other procedures, such as Rule 41(5) objections for manifest lack of legal merit, site visits, tribunal-appointed experts, and reconsideration applications. To this list must be added the determination of the place of arbitration (an important issue for UNCITRAL and ICSID Additional Facility arbitrations), as well as multi-party arbitrations and the question of consolidation. Taken together, these ‘other procedures’ have become increasingly relevant in investment arbitrations, particularly given the impact the procedures—whether alone or in combination—may have on the time and cost of arbitrations. The goal of this chapter is therefore to survey these other procedures, with a focus on how ICSID and UNCITRAL tribunals have addressed them in practice.
9.02 This chapter is presented as follows: Section 2 considers the determination of the legal place or seat of arbitration in non-ICSID Convention arbitrations; Section 3 surveys the practice of early dismissal mechanisms, specifically, ICSID’s Rule 41(5) objection for manifest lack of legal merit; Section 4 addresses the topic of site visits conducted by tribunals in ICSID and UNCITRAL arbitrations; Section 5 explains the practice of tribunal-appointed experts, including how and when they are appointed, as well as the involvement of the parties in that process; Section 6 examines requests for reconsideration, setting out details on the frequency of such requests, the identity of the parties filing them, and the disposition of those requests by tribunals; and Section 7 lays out the features of multi-party arbitration, including requests for consolidation of proceedings and the procedures and issues associated with mass claims.
9.03 The determination of the legal place or seat of arbitration in ICSID Additional Facility and UNCITRAL arbitrations is important for three reasons: ‘it determines the law that governs the arbitral proceedings; it confers jurisdiction upon the local courts of the seat in support and control of the arbitration; and it determines the ‘nationality’ of the award for the purposes of enforcement of the award’.2 This is to be distinguished with the geographical place of the hearings, typically determined on the basis of logistical considerations, such as the convenience of witnesses, parties, counsel, as well as tribunal members.
9.04 Most investment treaties make no mention of the legal place or seat of arbitration in disputes between foreign investors and states. This is unsurprising, at least in part because if arbitration under the ICSID Convention is selected, a seat need not be chosen. To the extent that treaties do contemplate the place or seat of arbitration for ICSID Additional Facility or for UNCITRAL arbitrations, they typically acknowledge the tribunal’s ability to determine the legal seat3 or specify that the arbitration be held in one of the 157 states that is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.4
9.05 There are, however, exceptions, where the contracting parties have specifically designated a seat for any arbitrations, or circumscribed the list of potential seats. Article 1130 of NAFTA, for instance, requires that unless the disputing parties agree otherwise, a tribunal must choose a seat in Canada, the U.S. or Mexico.5 Article 9 of the Serbia–UAE BIT requires that in the event of arbitration under the UNCITRAL Rules, the place of arbitration is designated as either Paris or Geneva.6 Article 11 of the Iran–Bosnia and Herzegovina BIT provides only for UNCITRAL arbitration in The Hague,7 and Article 11 of the Iran–Kazakhstan BIT provides for UNCITRAL arbitration in Paris.8 In some instances, contracting parties have specified a seat, but at the same time, acknowledge the possibility that parties to the dispute can deviate from that choice. Article 8 of the Italy–Tanzania BIT, for example, specifies that for any UNCITRAL arbitration, ‘the seat of arbitration shall be Stockholm, Sweden, or any other place as the Arbitrators may, with consent of the parties, agree’.9
(p. 148) 9.06 The applicable arbitration rules—ICSID Additional Facility and UNCITRAL—provide only the most general guidance on the determination of the place of arbitration. Article 21 of the ICSID Arbitration (Additional Facility) Rules—entitled Determination of Place of Arbitration—requires that the ‘place of arbitration shall be determined by the Arbitral Tribunal after consultation with the parties and the Secretariat’.10 That determination is informed by the requirement in Article 20 of the Additional Facility Rules that proceedings must be held only in States that are parties to the New York Convention.11 Article 18 of the UNCITRAL Arbitration Rules states that unless the parties have agreed on the place of arbitration, such place ‘shall be determined by the arbitral tribunal, having regard to the circumstances of the case’.12
(b) Legal place or seat of arbitration in practice
9.07 The legal place of arbitration is determined in investment arbitrations in one of three ways: by terms of the applicable treaty; by agreement of the parties; or by tribunal decision. As of 30 June 2017, ICSID had registered fifty-four arbitrations under the Additional Facility Arbitration Rules.13 In the majority of those arbitrations (63%), the parties agreed on the place of arbitration, and in the minority (31%) tribunals rendered decisions on the place of arbitration.14 In the remaining ICSID Additional Facility arbitrations (6%), the details on legal place of arbitration are either unknown or the case was discontinued before such a determination was made.15 The most frequently selected places of arbitration—by tribunal decision—for Additional Facility arbitrations have been Washington, D.C., Paris, France, and London, England,16 as detailed in Table 9.1.
Place of Arbitration (in alphabetical order)
Agreement of the Parties
New York, New York, U.S.A.
Ottawa, Ontario, Canada
The Hague, Netherlands
Toronto, Ontario, Canada
Vancouver, British Columbia, Canada
Washington, D.C., U.S.A.
f Vannessa Ventures Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/04/6; Europe Cement Investment and Trade S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/07/2; Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1; Nova Scotia Power Incorporated v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/1; Rusoro Mining Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/12/5; Mobile TeleSystems OJSC v. Republic of Uzbekistan, ICSID Case No. ARB(AF)/12/7; MNSS B.V. and Recupero Credito Acciaio N.V. v. Montenegro, ICSID Case No. ARB(AF)/12/8; Anglo American PLC v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/14/1.
g Cargill, Incorporated v. Republic of Poland, ICSID Case No. ARB(AF)/04/2; Sistem Muhendislik Insaat Sanayi ve Ticaret A.S. v. Kyrgyz Republic, ICSID Case No. ARB(AF)/06/1; Cementownia “Nowa Huta” S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/06/2; Vincent J. Ryan, Schooner Capital LLC, and Atlantic Investment Partners LLC v. Republic of Poland; ICSID Case No. ARB(AF)/11/3; Mobile TeleSystems OJSC v. Turkmenistan, ICSID Case No. ARB(AF)/11/4.
j Robert Azinian and others v. United Mexican States, ICSID Case No. ARB(AF)/97/2; Fireman’s Fund Insurance Company v. United Mexican States, ICSID Case No. ARB(AF)/02/1; Corn Products International, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/1; Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/5; Bayview Irrigation District and others v. United Mexican States, ICSID Case No. ARB(AF)/05/1; Cargill, Incorporated v. United Mexican States, ICSID Case No. ARB(AF)/05/2; Mercer International, Inc. v. Canada, ICSID Case No. ARB(AF)/12/3; B-Mex, LLC and others v. United Mexican States, ICSID Case No. ARB(AF)/16/3.
m Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/98/2; The Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3; Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2; Gemplus, S.A., SLP, S.A. and Gemplus Industrial, S.A. de C.V. v. United Mexican States, ICSID Case No. ARB(AF)/04/3; Talsud, S.A. v. United Mexican States, ICSID Case No. ARB(AF)/04/4; Alasdair Ross Anderson and others v. Republic of Costa Rica, ICSID Case No. ARB(AF)/07/3; Quadrant Pacific Growth Fund L.P. and Canasco Holdings v. Republic of Costa Rica, ICSID Case No. ARB(AF)/08/1; Abengoa, S.A. y COFIDES, S.A. v. United Mexican States, ICSID Case No. ARB(AF)/09/2; Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2; Telefónica S.A. v. United Mexican States, ICSID Case No. ARB(AF)/12/4; Oded Besserglik v. Republic of Mozambique, ICSID Case No. ARB(AF)14/2; Corona Materials, LLC v. Dominican Republic, ICSID Case No. ARB(AF)/14/3; JSC Tashkent Mechanical Plant and others v. Kyrgyz Republic, ICSID Case No. ARB(AF)/16/4.
n Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2; ADF Group Inc. v. United States of America, ICSID Case No. ARB(AF)/00/1; Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3; Strabag SE v. Libya; ICSID Case No. ARB(AF)/15/1; Lion Mexico Consolidated L.P. v. United Mexican States, ICSID Case No. ARB(AF)/15/2.
9.08 For arbitrations under the UNCITRAL Arbitration Rules, the legal places of arbitration determined as a result of tribunal decision include many of the same seats as in ICSID Additional Facility cases: Washington, D.C., U.S.A.;17 (p. 149) (p. 150) Toronto, Ontario, Canada;18 Vancouver, British Columbia, Canada;19 Miami, Florida, U.S.A.;20 Singapore;21 and The Hague, Netherlands.22 Parties in investment arbitrations under the UNCITRAL Arbitration Rules have agreed to legal seats in Brussels, Belgium;23 Frankfurt, Germany;24 Montreal, Quebec, Canada;25 New York, New York, U.S.A.;26 Ottawa, Ontario, Canada;27 Paris, France;28 Toronto, Ontario, Canada;29 The Hague, Netherlands,30 as well as Washington, D.C.31
(c) Tribunal considerations on legal place or seat of arbitration
9.09 Parties in both ICSID Additional Facility and UNCITRAL arbitrations have frequently referred to the factual and legal factors listed in the 1996 UNCITRAL (p. 151) Notes on Organizing Arbitral Proceedings that influence the choice of the place of arbitration. These include:
(a) suitability of the law on arbitral procedure of the place of arbitration; (b) whether there is a multilateral or bilateral treaty on enforcement of arbitral awards between the State where the arbitration takes place and the State or States where the award may have to be enforced; (c) convenience of the parties and the arbitrators, including the travel distances; (d) availability and cost of support services needed; and (e) location of the subject matter in dispute and proximity of evidence.32
9.10 Thus, although these factors are in no way binding on a tribunal, decisions on the legal place of arbitration have frequently been organized around these considerations. In the words of the Mesa Power tribunal, ‘[w]hile the UNCITRAL Notes do not bind the Parties and the Tribunal, they are often referred to in international arbitration practice (at least in respect of the selection of the seat) and may thus provide helpful guidance’.33 That said, since tribunals increasingly hold hearings at any place they deem appropriate after consultation with the parties—irrespective of the legal place of arbitration—certain of the practical and logistical factors in the 1996 Notes are no longer relevant in the determination of the legal place of arbitration.
9.11 In 2016, the UNCITRAL Notes were updated, and the guidance on place of arbitration was revised to better reflect the distinction between the legal seat of an arbitration and the geographical location of hearings.34 The prominent legal factors for selection of the legal place of arbitration were summarized as:
(a) The suitability of the arbitration law at the place of arbitration;
(b) The law, jurisprudence and practices at the place of arbitration regarding: (i) court intervention in the course of arbitral proceedings; (ii) the scope of judicial review or of grounds for setting aside an award; and (iii) any qualification requirements with respect to arbitrators and counsel representation; and
(c) Whether the State where the arbitration takes place and hence where the arbitral award will be made is a Party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the ‘New York Convention’) and/or to any other multilateral or bilateral treaty on enforcement of arbitral awards.35
(p. 152) 9.12 In the words of the V.G. Gallo tribunal: ‘the perfect place of arbitration in an international investment arbitration is a jurisdiction which is neither that of the investor nor that of the host State, which has a high quality, independent judiciary, with experience in providing support to, and reviewing and setting aside decisions from international arbitral tribunals’.36
9.13 What is more, NAFTA tribunals have taken into account the frequency by which certain arbitral seats have been selected, either by agreement or decision. For instance, in Lion Mexico, the tribunal selected Washington, D.C., as the seat finding that it was ‘widely regarded as a neutral forum, appropriate to serve as seat of international arbitration’. In reaching that decision, the tribunal noted that it was ‘the seat of two NAFTA arbitrations brought by U.S. nationals against Mexico’ and that it was ‘selected in eight out of 10 cases where the United States was the respondent in an arbitration under NAFTA brought by a Canadian investor’.37
9.14 Although tribunals typically select a legal seat from among those proposed by the parties, there are instances where tribunals have selected as the legal place of arbitration a location not among those initially advanced by the parties but one arrived at following consultations with the parties. For example, in Mobil v. Canada, the tribunal decided on Toronto as the appropriate place of arbitration, instead of Washington, D.C., (proposed by the claimants), St. Johns, Newfoundland and Labrador (proposed by the respondent), or Ottawa, Ontario (also proposed by the respondent).38 Although it was not their initial choice, in a response to a tribunal question following the first session and briefing on the legal place of arbitration, the claimants indicated that ‘Toronto  was the Canadian place of arbitration that would raise the least concerns from their perspective’.39 In V.G. Gallo v. Canada, the tribunal also selected as the legal place of arbitration a city not among those originally proposed by the parties, Vancouver, British Columbia, a city that the tribunal itself suggested.
9.15 In terms of the timing of tribunal decisions on the place of arbitration, they are typically rendered between one to two months following the first session or party submissions on the question. The tribunal’s decision may be reflected in the terms of the First Procedural Order (with or without reasoning), may be rendered in a separate decision on just that issue, or as part of a decision on several procedural issues. In certain instances, tribunals may render a decision on the place of arbitration, with reasoning to follow. In Methanex v. U.S.A, the tribunal did just that, (p. 153) announcing its determination of Washington, D.C., as the place of arbitration after the second procedural meeting on 7 September 2000, and providing written reasons on 31 December 2000.40
(d) Motions to change the legal seat of arbitration
9.16 In a handful of UNCITRAL and ICSID arbitrations, a party has filed a motion to change the place of arbitration. First, in Pope & Talbot, Inc. v. Canada, the claimant sought to change the seat of the arbitration from Montreal, Quebec, Canada, to Washington, D.C., U.S.A., several years after the arbitration had commenced. In that arbitration, the parties agreed with the tribunal’s proposal in October 1999, that Montreal would be the place of arbitration.41 Two years later, following a hearing on damages in November 2001, the claimant filed a motion requesting the tribunal to change the place of arbitration from Montreal to Washington, D.C.,42 The claimant argued that Canada had changed its position on NAFTA arbitration in assertions before provincial and federal courts tasked with reviewing the Chapter 11 tribunal decisions in Metalclad v. United Mexican States and S.D. Myers v. Canada.43
9.17 The tribunal denied the claimant’s application in a decision dated 14 March 2002. The Pope and Talbot tribunal observed that the burden on a claimant making a motion to change the place of arbitration is ‘a severe one’ and that it would be ‘an extraordinary step to change the place of arbitration’ following ‘preliminary motions, discovery, hearings and two awards on the merits’.44 Although the tribunal was troubled by Canadian submissions on reviewability, the tribunal concluded that it was neither efficient nor effective to change the place of arbitration at such a late stage since so much of the case had been completed.45
9.18 Second, the tribunal in Lion Mexico v. Mexico determined that Washington, D.C., would be the seat of arbitration in a procedural order in November 2016.46 Less than six months later, the respondent requested that the tribunal change the seat from Washington, D.C., to Toronto as part of its briefing on bifurcation, alleging that Lion was an investment vehicle created by U.S. entities with no real ties with Canada.47 The tribunal held that the respondent’s request was (p. 154) untimely and had no direct connection with the issue of bifurcation. The tribunal explained that it had already fixed the seat of the arbitration and that the facts and legal basis for that decision remained unchanged, and did not warrant reconsideration.48
9.19 In Dunkeld v. Belize, the respondent sought to change not the legal seat of the arbitration (agreed by the parties to be The Hague) but the venue of a hearing scheduled to take place in Miami.49 The tribunal denied the application, holding that the Miami hearing would proceed and that the legal place of the arbitration remained The Hague, and that the courts of the Netherlands accordingly had supervisory jurisdiction over the arbitration.50
(a) ICSID Arbitration Rule 41(5)
9.20 Eleven years ago, after considerable discussion and feedback, ICSID introduced a mechanism to provide for the early dismissal of claims manifestly without legal merit in the form of Arbitration Rule 41(5).51 The mechanism was designed to complement ICSID Convention Article 36(3), which affords the Secretary-General the right to refuse to register an arbitration request ‘manifestly outside the jurisdiction of the Centre’.52 The text of Rule 41(5) is as follows:
(5) Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit.
9.21 There are three possible outcomes in a Rule 41(5) proceeding. First, a tribunal may dismiss the entire arbitration on the grounds of a manifest lack of legal merit. Second, a tribunal may dismiss one or more claims—but not all claims—such that the arbitration continues in respect of the claims that remain. Third, a tribunal may deny the Rule 41(5) application in its entirety. In the ten years since its introduction, Rule 41(5) applications have been advanced in twenty-five ICSID arbitrations, and in all but six, the applications have been denied in their entirety.53
9.22 There is currently no equivalent procedure for early dismissal in cases under the UNCITRAL Arbitration Rules,54 absent a mechanism established in a treaty. Early dismissal mechanisms like Rule 41(5) have, however, been included in investment treaties and free-trade agreements prior to ICSID’s Rule 2006 amendments, such as in DR–CAFTA (Articles 10.20.4 and 10.20.5), the US–Peru FTA (Article 10.20.4) and the US–Panama FTA (Article 10.20.4). Decisions have been rendered by at least three tribunals under those mechanisms, all in arbitrations administered by ICSID.55 Against this background, it is unsurprising that other arbitral institutions have recently adopted similar mechanisms,56 such (p. 156) as the SIAC Investment Arbitration Rule57 and the SCC Arbitration Rule58 early dismissal mechanisms.
(b) Written and oral procedure
9.23 As required by Rule 41(5), a party may file an application alleging that a claim manifestly lacks legal merit ‘no later than 30 days after the constitution of the Tribunal’. In all but one of the twenty-five ICSID arbitrations in which a Rule 41(5) application was filed, respondents complied with this requirement. In Transglobal Green Energy, the claimants filed the application prior to the first session but more than a year from the date the tribunal was constituted. The tribunal had little difficulty concluding that the respondent’s 41(5) application ‘was clearly out of time and therefore rejected as such by the Tribunal’.59 In so doing, the tribunal confirmed that ‘the two temporal conditions set forth in Rule 41(5), namely, that a preliminary objection needs to be filed within thirty days from the constitution of the Tribunal and before the First Session of the Tribunal, are cumulative’.60 In Elsamex, the Rule 41(5) request was filed ninety-two days from the date the tribunal was constituted, but was considered timely owing to the suspension of the proceeding by party agreement.61 In Kruck and Lundin, the (p. 157) respondents filed applications seemingly beyond the required thirty-day period from tribunal constitution (thirty-one days in Kruck and thirty-four days in Lundin).62
9.24 Once filed, tribunals have typically agreed to a written procedure comprised of two rounds: Rule 41(5) objection filed by respondent;63 observations on the respondent’s objection filed by the claimant; reply to the claimant’s observations filed by the respondent; and rejoinder to the respondent’s reply filed by the claimant. In Transglobal Green Energy, an additional brief was filed by the respondent, a sur-rejoinder in effect, five days after the claimant’s further observations.64
9.25 Rule 41(5) does not require that a tribunal conduct an oral hearing on the application, just that it affords the parties the opportunity to present their observations on the objection. That said, most tribunals have held oral hearings on Rule 41(5) objections, either in conjunction with first sessions or separately. Of the twenty-five proceedings in which Rule 41(5) applications have been advanced, oral hearings have been held in twenty-two of them. The hearings are typically one day in duration.
9.26 In at least two hearings on Rule 41(5) objections, parties filed follow-up responses to tribunal/committee questions. In MOL v. Croatia, each party filed answers to questions posed by the tribunal during the Rule 41(5) oral hearing one week after the one-day hearing.65 In addition, the respondent in MOL v. Croatia supplemented its answers to those questions posed by the tribunal two weeks later.66 The ad hoc committee in Elsamex v. Honduras also posed questions to the parties during a one-day first session and a Rule 41(5) hearing, which the parties responded to a week later.67 After so responding, Honduras filed observations on Elsamex’s answers to questions posed by the ad hoc committee, and Elsamex then filed a response to the observations filed by Honduras on the same day.68
9.27 In six of the twenty-five proceedings in which a Rule 41(5) application was filed, the application was successful, three times resulting in complete dismissal69 and three times resulting in partial dismissal.70 To put this figure in context, ICSID reports that those represent 1% of disputes decided by tribunals under the ICSID Convention and Additional Facility Rules in cases administered and registered by ICSID.71 In the remaining nineteen arbitrations, the Rule 41(5) application was either unsuccessful or its disposition has not been made publicly available.
9.28 Rule 41(5) requires that a tribunal ‘shall, at its first session or promptly thereafter, notify the parties of its decision on the objection’. The duration of a Rule 41(5) proceeding, from the date of application to decision is, on average, approximately four months (118 days).72 The average duration between a tribunal hearing on a Rule 41(5) objection and a decision on that objection is fifty-five days.73
9.29 In three of the nineteen unsuccessful Rule 41(5) proceedings, the applications were made not in an original arbitration proceeding but in an annulment proceeding.74 The ad hoc committees in Elsamex and Venoklim held that ICSID Arbitration Rule 53 incorporates Rule 41(5) into annulment proceedings through the application ‘mutatis mutandis to any procedure relating to the interpretation, revision or annulment of an award and to the decision of the Tribunal or Committee’.75 In Micula v. Romania, the application was denied on procedural grounds.76 The arbitration rules applicable to the annulment proceeding were those in force as of the disputing parties’ consent to ICSID arbitration, which was in 2005 at the time of the applicability of the 2003 Arbitration Rules, which did not include the Rule 41(5) mechanism.77
(p. 159) 9.30 As acknowledged by the MOL tribunal, the costs of Rule 41(5) proceedings—consisting of more than one round of written arguments, an oral hearing and deliberations by the tribunal—‘cannot be assumed to be negligible’.78 For that reason, tribunals have carefully considered the allocation of costs for 41(5) proceedings in the cases where claims have been dismissed in full or in part, or where the application was unsuccessful. In Global Trading, the tribunal made no order as to costs, owing to the ‘newness of the Rule 41(5) procedure and given the reasonable nature of the arguments concisely presented to it by both parties’.79 In RSM, the tribunal considered ‘it appropriate that Respondent should be fully indemnified for all of its costs’, and awarded Grenada 100% of its legal costs (US$205,126.83) and held the claimant liable for all administrative and tribunal costs (US$187,315.94) associated with the application.80 The tribunal in Ansung Housing awarded the respondent its share of the arbitration costs for the proceeding (US$69,760.55), as well as 75% of its legal costs (US$651,624.09), after having found the claimant’s claims to be ‘manifestly time-barred’.81
9.31 In the three arbitrations where tribunals found a lack of legal merit in part, none awarded costs to the respondents. In Accession and Emmis, the tribunals ruled that each party shall bear its own expenses incurred in connection with the proceedings, and in Trans-Global Petroleum, the case ultimately settled with no final award on costs.82 In instances where tribunals have denied Rule 41(5) applications, the most common practice is for tribunals to ‘reserve’ decisions about the costs of such applications until later in the proceeding.83 That said, tribunals have indicated that unsuccessful Rule 41(5) applications may eventually result in adverse costs orders:
Given that one of the main reasons behind the introduction of Rule 41(5) was to spare respondent States the wasted trouble and expense of having to defend wholly unmeritorious claims, it must follow per contra that a Respondent invoking (p. 160) the procedure under the Rule takes on itself the risk of adverse cost consequences should its application fail.84
9.32 In Transglobal Green Energy, the tribunal did award costs in the respondent’s favour, but not its costs in respect of its Rule 41(5) application (US$74,075.00 in total) since it was ‘clearly out of time’.85
(a) Relevant arbitration rules
9.33 The ICSID Convention and Arbitration Rules contemplate that tribunals may conduct a site visit to a scene connected with the dispute when circumstances so require.86 Article 43 of the ICSID Convention states that the tribunal has the opportunity to ‘visit the scene connected with the dispute, and conduct such inquiries there as it may deem appropriate’, if it deems necessary at any stage of the proceedings.87 Article Rule 34(2)(b) of the ICSID Arbitration Rules further provides that if the tribunal ‘considers it necessary to visit any place connected with the dispute or to conduct an inquiry there, it shall make an order to this effect’.88 The ICSID Administrative and Financial Regulations provide that the Secretary-General shall assist ‘in visiting any place connected with a dispute or in conducting inquiries there’.89 The UNCITRAL Arbitration Rules state, in more general terms, that the tribunal may meet at ‘any location it considers appropriate for any other purpose’.90
9.34 The prospect of site visits or inspections is also addressed in the IBA Rules on the Taking of Evidence and the UNCITRAL Notes on Organizing Arbitral Proceedings. Article 7 of the IBA Rules explains that the ‘Tribunal may, at the request of a Party or on its own motion, inspect or require the inspection by a Tribunal-Appointed Expert or a Party-Appointed Expert of any site, property, machinery or any other goods, samples, systems, processes or documents, as it deems appropriate’.91 The UNCITRAL Notes on Organizing Arbitral (p. 161) Proceedings—recently updated in 2016—also address inspections of a site, property or goods, which may be evidentiary in nature or serve an illustrative function.92
(b) The frequency of site visits in ICSID and UNCITRAL arbitrations
9.35 Although contemplated under the ICSID Convention and Arbitration Rules, the frequency of tribunal site visits has been limited in investment arbitrations. For instance, ICSID has registered 619 cases between its inception and the end of FY2017, yet publicly known site visits figured in only ten of those arbitrations (2%).93 And of those ten arbitrations where site visits have been at issue, most are recent, within the last six to seven years.94 This has not gone unnoticed. As explained by one commentator, ‘[w]hile the incidence of such site-visits in investment treaty arbitration is historically quite low, we have a feeling that recourse to them may increase in the coming years’.95 In six ICSID cases—Lanco, Hans Unglaube, Marion Unglaube, Elsamex, CMS Energy, and Burlington—tribunals conducted site visits, and in the remaining four arbitrations—Santa Elena, Micula, Tamimi, and OI European Group—requests for site visits were denied.96 In the Unglaube arbitrations, the tribunal and the parties participated in a site visit to the Guanacaste region in Costa Rica.97 The sole arbitrator and the parties in Elsamex visited fifteen sites in Tegucigalpa, Honduras, related to a highway-rehabilitation project that was the subject of the dispute.98 In CMS Energy, the sole conciliator and parties visited the place connected with the dispute in Equatorial Guinea.99 The parties and arbitrators in Burlington conducted a site visit for several days to visit Blocks 7 and 21 in Ecuador to examine issues of soil contamination and land use.100
(p. 162) 9.36 Although there is no established registry for UNCITRAL investment arbitrations, a review of publicly available awards, decisions, and orders reveals only three arbitrations involving site visits, a small fraction of the overall number of UNCITRAL arbitrations. In all three of those arbitrations—Chevron, ECE, and Enkev—site visits were conducted, two by tribunals and one by a tribunal-appointed expert.101 In Chevron, the tribunal, party representatives and counsel visited the former TexPet concession area in Ecuador.102 In ECE, the tribunal, accompanied by representatives of the parties, visited various locations in the immediate environs selected and agreed by the parties in Prague, including the planned site of the Galeήe project, and the multi-shopping centre.103 In Enkev, a tribunal-appointed expert (as explained in more detail below) conducted a site visit of the claimant’s industrial facilities in Poland.104
(c) The timing of site visits in ICSID and UNCITRAL arbitrations
9.37 A tribunal may conduct a site visit at any stage of the proceeding. That said, site visits have tended to occur following the written procedure, or at least following the initiation of that procedure, since it is only then that a tribunal is well-positioned to ascertain whether such a visit is necessary and useful. For this reason, the four ICSID tribunals to have conducted site visits did so against the backdrop of written submissions, either prior to hearings, as part of hearings, or in the weeks following hearings. In Equatorial Guinea v. CMS Energy, the sole conciliator (von Wobeser) conducted a site visit during the written procedure, between receipt of the parties first and second written statements of position, five months before the conciliation hearing.105 In Unglaube, the tribunal conducted a site visit two months prior to the merits hearing, following the close of the written submissions.106 The sole arbitrator in Elsamex conducted a site visit at the close of a hearing on the merits, additional jurisdictional objections and a counterclaim.107 In Burlington, the site visit occurred following tribunal decisions on jurisdiction and liability, and weeks after a hearing on quantum and reconsideration.108
(p. 163) 9.38 Equally, a request for a site visit from a party can be made on its own accord at any stage of the proceeding. In Santa Elena, for example, at the first session the parties proposed that the tribunal schedule a visit to Costa Rica.109 The tribunal explained that it would contemplate scheduling a site visit only upon conclusion of the oral hearing, in the event that it believed then that such a visit would be useful.110 Following several renewed requests, the tribunal ultimately determined that a site visit would not be necessary.111 Similarly, in Micula v. Romania, the claimant made multiple requests in May 2009, April 2010, and December 2010 for the tribunal to conduct a site visit.112 The tribunal concluded that a site visit was ‘neither necessary nor useful for the resolution of the dispute’.113
9.39 What is more, there have been instances when requests for site visits have been made not to be undertaken by the tribunal but by the parties, or by experts engaged by the tribunal. In Tamimi v. Oman, for example, the claimant filed an application seeking to allow its industry and damages experts access to the site of the former quarry that was the subject of the arbitration for the purposes of conducting a site inspection.114 The tribunal granted the claimant’s request, but not on an immediate basis, leaving it to the parties to negotiate when it should occur and under what conditions.115 And in OI European Group BV v. Venezuela, the claimant filed a request based on Rule 34(2)(b) of the ICSID Arbitration Rules ‘to conduct a visual inspection of the facilities of the plant owned by the Claimant’.116 In Enkev Beheer, the claimant requested that the tribunal appoint an expert to conduct a survey and make an assessment of industrial facilities in Poland.117 The Enkev Beheer tribunal granted the request and appointed an expert to conduct a site visit explaining that ‘[t]he expert’s function is essentially to make a permanent record of what he and the Parties consider relevant to the Parties’ dispute’ while on site at the facilities.118
(d) Protocol for site visits
9.40 ICSID Arbitration Rule 34(2)(b) requires tribunals to issue orders related to site visits that ‘define the scope of the visit or the subject of the inquiry, the time (p. 164) limit, the procedure to be followed and other particulars’.119 The UNCITRAL Notes on Organizing Arbitral Proceeding likewise state that an arbitral tribunal will need to consider various issues, including timing, the allocation of costs, arrangements to ensure all parties can be present or represented, and an indication of who will guide the inspection and provide explanations.120 Consistent with this, the IBA Rules on the Taking of Evidence provide that a tribunal ‘shall, in consultation with the Parties, determine the timing and arrangement for the inspection’ and that parties and their representatives shall have the right to attend such an inspection.121
9.41 In practice, negotiations between parties on the terms of any site visit protocol have the potential to be protracted and lengthy. For example, in Chevron, the tribunal first issued a procedural order on 12 June 2014 concerning Ecuador’s application for a site-visit to the former TexPet concession area.122 The site visit did not take place until April 2015, owing to ‘significant disagreements between the Parties in respect of several procedural and logistical matters regarding the site-visit’.123 This included two further procedural meetings between the parties and the tribunal (by telephone) in regard to the site visit in December 2014, resulting in an interim decision on certain issues between the parties in regard to the site visit in January 2015.124 In Burlington, the process of agreeing a protocol for a site visit also took at least six months, from tribunal decision to conduct a site visit in July 2014—with joint tribunal conference calls in October and November 2014—to execution of a site visit protocol in January 2015.125 The Burlington site visit occurred in late March and early April 2015.126
9.42 The protocol agreed in the Burlington arbitration represents one of the few, perhaps only, site visit protocols made publicly available. In that protocol, the parties and tribunal addressed the following issues in some detail: scope of the site visit; joint site information packs; pre-site visit inspections; site visit itinerary and schedule; transportation and security; accommodation; food; safety and health; dress code; climate; and immunity.127 The protocol established that presentations would be given during the site visit by both parties, with one expert and one fact (p. 165) witness designated by each party available to answer tribunal questions during the visit.128 The protocol further addressed the status of the site responses from expert and fact witnesses, from an evidentiary perspective:
The expert and witness responses to Arbitral Tribunal questions shall be treated as sworn testimony. Any expert or witness who provides explanations to the Arbitral Tribunal in the course of the Site Visit will make the declaration provided in Rule 35(2) or (3) ICSID Arbitration Rules at an appropriate moment on the first day of the Site Visit. This declaration will be valid for the whole duration of the Site Visit. The Arbitral Tribunal may rely on the witness and expert responses and the Parties’ presentations in reaching its decision. For the avoidance of doubt, the Parties’ presentations will not be deemed evidence but will have the same value as other Parties’ submissions.129
9.43 Just as tribunals issue procedural directions following a hearing, similar directions may be required at the conclusion of a site visit. These include: (i) a period of time to allow for corrections to any transcript of the site visit; (ii) the availability of any recordings (e.g. audio or video) made of the site visit, and the confidentiality of such recordings; (iii) post-site visit briefs; and (iv) post-site visit hearings, if necessary. In Burlington, the tribunal addressed each of these issues in some detail following the tribunal’s site visit to Ecuador.130 In that proceeding, the tribunal also directed the parties on the filing of revised depth-integrated maps for each of the twelve sites visited during the site visit, so as to enable the tribunal to compare the delineation of contamination and of the areas to be remediated.131 In Elsamex, the parties filed post-hearing photographic reports following a one-day visit to the site connected to the dispute.132
(a) The frequency of tribunal expert appointments
9.44 The ICSID Convention, Regulations and Rules, as well as the UNCITRAL Arbitration Rules, contemplate that tribunals may appoint their own experts.133 Consistent with this, the IBA Rules on the Taking of Evidence provide that a tribunal ‘may appoint one or more independent Tribunal-Appointed Experts to report to it on specific issues designated by the Arbitral Tribunal’. The function of (p. 166) an expert appointed by a tribunal is straightforward: to prepare ‘a report on one or several specific points requiring specialized knowledge or assisting the arbitral tribunal in understanding certain technical issues’.134
9.45 In practice, there have been seventeen ICSID and UNCITRAL arbitrations in which tribunals have appointed an expert to assist resolving one or more issues during the course of proceedings.135 In the majority of these arbitrations—thirteen of seventeen or 76%—experts have been appointed to provide financial and economic expertise on issues of damages.136 In the words of the CMS tribunal, independent expert advice was retained ‘so as to better understand the underlying assumptions and methodology relied upon in the valuation reports offered by the parties’ experts’.137 More specifically, tribunals have sought the services of independent experts ‘because of the complexity involved in ascertaining damages’ and ‘widely differing conclusions by each party with the assistance of financial specialists’.138
9.46 In the remaining four cases, tribunals retained experts to address specific technical or legal issues, such as database verification,139 environmental issues,140 well-design and drilling issues,141 and issues of Russian civil law and Ukrainian civil law.142
9.47 Experts are not always appointed at the tribunal’s initiative but sometimes at the request of a party. For instance, in Enkev Beheer, the claimant filed an application for interim measures requesting the tribunal to appoint an expert to conduct a site visit and conduct an assessment to preserve evidence about the state of the claimant’s former facility in Poland.143 In Gold Reserve, the claimant requested that the tribunal consider ‘a Tribunal-appointed mining expert to ensure that (p. 167) the Tribunal is presented with a meaningful basis to assess the merits of the highly technical aspects … disputed between the parties’.144 The claimants in Oostergetel requested that the tribunal appoint an accountant and real-estate agent to assess damages issues.145 And it is not only claimants that have requested the appointment of such experts. In Bosca, the Republic of Lithuania requested that the tribunal appoint an independent forensic examination body to report on the age of contracts at issue in the arbitration.146 The tribunal in Austrian Airlines was presented with such a request by the Slovak Republic ‘to appoint an expert to address the issues of State aid’.147
(b) Timing of decisions to appoint independent experts
9.48 The timing of a tribunal’s decision to retain the services of an independent expert varies depending on the nature of the expertise required and the stage of the case. Some tribunals address the possibility of expert retention early on and include a clause in the First Procedural Order to that effect, in either general or more specific terms:
In principle, the Arbitral Tribunal will not appoint an expert, unless it appears to it that such an expert is necessary to resolve one or more of the issues that are identified in the course of the proceedings. In any event, the Tribunal will consult the Parties beforehand as to whether such an expert is indeed required and if so, on his or her terms of reference.148
Subject to NAFTA Article 1133, the Arbitral Tribunal may, on its own initiative or at the request of a disputing party, appoint one or more experts. The Arbitral Tribunal shall consult with the disputing parties on the selection, terms of reference (including expert fees) and conclusions of any such expert. The Arbitral Tribunal may, on its own initiative or at the request of any disputing party, take oral evidence of such expert(s). The procedural rules set out above shall apply by analogy.149
9.49 That said, the majority of experts appointed by tribunals in ICSID and UNCITRAL arbitrations have been at later stages in the arbitration. The reason is straightforward: the opinions of the party-appointed experts are so divergent to not allow the arbitral tribunal to reach a conclusion. As explained by the tribunal in Suez, the appointment of an expert there to assist in ascertaining damages was (p. 168) due to ‘widely differing conclusions by each party with the assistance of financial specialists who prepared extensive reports and testified at the hearing on the merits’.150 For this reason, tribunals have been encouraged to instead hold mid-course procedural meetings ‘to engage with expert evidence at an earlier stage in the proceedings’, in order to ‘save the time and cost involved in a post-hearing appointment of a tribunal expert’.151
(c) Process for selection of tribunal experts
9.50 Even though an independent expert is being appointed by the tribunal—not the parties—tribunals consult the parties throughout the process, including establishing a procedure for selecting the expert. Tribunals have typically proceeded in one of two ways. A tribunal may ask the parties for input to fulfil the role of independent expert. This may involve asking parties to name potential expert candidates, like in Hrvatska,152 or the identification of criteria such an expert needed to fulfil as in National Grid.153 Alternatively, a tribunal may first seek a list of suitable candidates from an arbitral institution or professional organization and then provide potential candidates to the parties for their observations. In El Paso, the ICSID tribunal did just that, requesting the ICC International Centre for Expertise to provide a list of names from its database of experts.154 In Enkev Beheer, the UNCITRAL tribunal requested the PCA to provide a list of four expert candidates recommended by the Royal Institute of Chartered Surveyors.155 It is during this process that the tribunal affords parties the opportunity to identify any potential conflicts of interest or objections to the appointment of any particular expert candidate.156
• the various documents that the expert is to examine;
• the specific issues to be addressed in the expert report to the tribunal;
• the deadline for preparation of a preliminary expert report;
• the deadline for party comments on the preliminary expert report;
• the deadline for preparation of the final expert report;
• the deadline for party comments on the final expert report; and
As you remember, the procedure there is information [sic] has to be given to the Expert, when she may have all the information she needs, but we would, I think, if you went down this route, have her Terms of Reference permit her to contact the two experts jointly for any further clarification that she may need. She would then produce a report, and that report would be communicated obviously to the Parties, who would be given the opportunity to express in writing their opinion on the Report, and then if either side wished to, they could examine any document on which the Expert has relied in her Report, and then to question the Expert at a hearing.157
9.53 Once a tribunal has retained an expert, the length of time it takes from signature of the terms of reference to submission of final report varies from a matter of months158 to, in extreme cases, years.159
9.54 Consistent with tribunal efforts to involve the parties in the expert procedure, once a final report has been submitted, parties are afforded the ability to comment on that report.160 Indeed, in several arbitrations, parties have been invited to provide observations on preliminary or draft versions of independent-expert reports and later final versions of those reports.161 Parties have been afforded the opportunity to examine the tribunal-appointed expert at oral hearings in several cases.162
9.55 The ICSID Convention and Arbitration Rules do not contemplate the filing of a request or application for reconsideration. Neither do the UNCITRAL Arbitration Rules. Yet, in recent years, requests for reconsideration of tribunal decisions and orders have become commonplace in ICSID and UNCITRAL investment arbitrations. In the period between 1985 and 30 June 2017, eighty-six reconsideration requests were filed in investment arbitrations, most filed in the last four years.163
9.56 Requests for reconsideration have been filed by respondents and claimants alike, as well as by non-disputing parties. The focus of those requests has been a wide array of tribunal decisions and orders, including interim measures,164 bifurcation,165 admissibility of evidence,166 non-disputing party participation,167 jurisdiction,168 and liability,169 among others. There have even been instances of parties seeking reconsideration of tribunal decisions on reconsideration.170
(a) The reconsideration request is not new in ICSID and UNCITRAL arbitrations
9.57 The request for reconsideration, as a procedural mechanism, is not new in UNCITRAL and ICSID arbitrations. The first request for reconsideration in an ICSID arbitration was filed more than thirty years ago, on 8 August 1985, by the respondent in Maritime International Nominees Establishment (MINE) v. Guinea.171 In that request, Guinea sought reconsideration of the tribunal’s denial of its emergency request for relief from MINE’s attachments of Guinea’s (p. 171) assets in Europe in relation to the enforcement of a AAA award. The tribunal took no immediate action in response to Guinea’s reconsideration request, but later ruled in a decision on provisional measures four months later (4 December 1985) that MINE’s actions breached the ICSID Convention, and ordered MINE to dissolve the attachments. On 24 December 1985, MINE proceeded to file its own application for reconsideration of the decision on provisional measures, an application denied by the tribunal on 5 February 1986.172
9.58 A few years later, on 16 March 1990, the respondent in Biloune v. Ghana Investments Centre filed a request for reconsideration under the UNCITRAL Arbitration Rules, the first of its kind in an UNCITRAL investment arbitration.173 In Biloune, Ghana Investments Centre sought reconsideration of the tribunal’s 27 October 1989 Award on Jurisdiction and Liability, claiming that testimony at the hearing was ‘tainted by perjury’.174 The Biloune tribunal denied the respondent’s request in its 30 June 1990 Award on Damages and Costs concluding that the UNCITRAL Arbitration Rules ‘make no provision for reconsidering an award’.175 Having said that, the Biloune tribunal acknowledged that it would not hesitate to reconsider its earlier Award were it shown by credible evidence that ‘its previous determinations were the product of false testimony’, but that no such evidence had been adduced.176
(b) The frequency of reconsideration requests
9.59 What is new about reconsideration requests in ICSID and UNCITRAL arbitrations is therefore not the use of the request itself, but rather the frequency with which such requests have been filed in the last four years. More specifically, between 2013 and the time of writing, fifty-seven reconsideration requests have been filed in ICSID and UNCITRAL arbitrations—an average of eleven requests per year.177 In contrast, between 1985 and 2012, only twenty-nine reconsideration requests were filed, an average of one request per year.178 In total, eighty-six requests for reconsideration have been filed between 1985 and 2017, sixty-seven in ICSID arbitrations and nineteen in UNCITRAL arbitrations.179
(p. 172) 9.60 As detailed in Table 9.2, a snapshot of the last ten years demonstrates the recent dramatic increase in reconsideration requests.
9.61 The request for reconsideration is not the exclusive province of either claimant or respondent. Between 1985 and 2017, claimants have filed 32% of reconsideration requests (twenty-eight in total), and respondents have filed 62% (fifty-three in total).180 The remaining 6% (five in total) were filed by non-disputing parties.181 In at least nine ICSID and UNCITRAL arbitrations, there have been multiple requests for reconsideration in the same arbitration, ranging from two to seven times per arbitration.
9.62 To be sure, the number of reconsideration requests submitted in the last ten years remains small when compared to the overall number of investment arbitrations filed in the last ten years. For instance, during the last ten years, ICSID has reported an increase in cases registered from 130 in FY2007 to 247 in FY2016. Yet, as compared to other procedures that parties may initiate during proceedings, reconsideration requests rank near the top. In FY2016 (1 July 2015–30 June 2016), for example, reconsideration requests were more frequently filed by parties in ICSID arbitrations (eleven in total) than applications for disqualification of arbitrators, manifest lack of legal merit objections, requests for interim measures, or requests from non-disputing parties, to name a few.182 The difference between those procedures and reconsideration requests (p. 173) is straightforward: requests for reconsideration are not contemplated under the ICSID regime, the other procedures are.
9.63 What is more, it is not only the volume of reconsideration requests that is notable, but the expanding range of tribunal decisions and orders those requests seek to address, including decisions on: provisional measures; bifurcation; document disclosure requests; non-disputing party participation; admissibility of evidence; jurisdiction; liability; stays of enforcement; and security for costs.183 And in at least three instances in the last two years, parties have sought reconsideration of tribunal decisions or orders on reconsideration requests.184
9.64 Finally, this analysis of reconsideration requests is likely underreporting the true number of such requests, for two reasons. First, not all requests for reconsideration are publicly available, either because they are not reported as procedural details on the ICSID website, or because the order, decision, or award in an ICSID or UNCITRAL arbitration is not available. Second, this analysis does not include instances when parties have sought reconsideration through other means. For instance, on 13 September 2004, in Loewen v. U.S.A, the claimants filed a request for supplementary decision under Article 58 of the ICSID Additional Facility Rules.185 That request was denied by the tribunal because the claimant was not asking for a further decision but to reconsider its decision to dismiss a claim. Similarly, on 22 October 2014, the claimants in Minotte v. Poland filed a request for interpretation under Article 55 of the ICSID Additional Facility Rules. In dismissing that request, the tribunal concluded that what the claimants had filed was not in fact a request for interpretation of its decision, but ‘rather a request that the Tribunal reconsider and alter its decision’.186 More recently, on 29 March 2016, the claimant in İçkale İnşaat v. Turkmenistan filed a request for supplementary decision and rectification of the award rendered on 8 March 2016. In denying the request for rectification, the tribunal held that the claimant’s request was not a request to correct a typographical, clerical or similar error but ‘in effect a request for reconsideration of the Tribunal’s reasoning and evaluation of the evidence that was before the Tribunal’, outside the ambit of Article 49(2) of the ICSID Convention.187
9.65 With an average of eleven reconsideration requests filed each year between 2013 and 2017, it may be time for users of ICSID and UNCITRAL arbitration to consider a framework to handle these requests going forward. Absent such a framework, parties will be free to file reconsideration requests at any time, in respect of any tribunal decision or order, and without any disincentive to submit repeated requests within the same arbitration. To suggest, as some users might, that providing a framework legitimizes reconsideration requests as a procedure and will lead to further requests, misses the point: as a practical matter, these requests are here to stay and show no signs of abating.
9.66 One approach, requiring no rule amendments, would be to include a discussion of reconsideration requests at the first session or first procedural meeting in every arbitration. The goal of that discussion could be to consider: (i) a deadline for filing reconsideration requests (such as seven or fourteen days after the issuance of decision or order, a requirement common in national court systems); (ii) a high standard for granting reconsideration requests (e.g. need to correct clear error or prevent manifest injustice); (iii) an interim award of costs in the case of unsuccessful reconsideration requests given the low rate of success for such applications (less than 5%);188 and (iv) a condition that only parties to the arbitration—claimants and respondents—are permitted to file reconsideration requests. The ICSID Secretariat could facilitate this approach by including the issue of reconsideration requests in the draft agenda for first sessions, as well as the draft Procedural Order No. 1. In the event an arbitration is already pending—without having addressed reconsideration earlier on—a tribunal could issue an order addressing these considerations upon receiving its first reconsideration request, to have a procedure in place for subsequent requests, which have become increasingly common.
9.67 Since ICSID’s inception, more than fifty years ago, claims advanced by more than one party have been a common feature in ICSID Convention and Additional Facility proceedings. Indeed, from the very beginning, many of the first cases filed with ICSID—based on contractual ICSID clauses—involved multiple claimants, including Holiday Inns S.A. and others v. Morocco, Amco Asia Corporation and others v. Indonesia, and Klockner Industrie-Anlagen GmbH and others v. Cameroon. Consistent with this, ICSID’s Secretariat (p. 175) considered itself capable to administer multi-party disputes, as it intended to develop rules and procedures for such arbitrations, although such plans never materialized.189
9.68 The precise number of claimants involved in ICSID multi-party arbitrations over the past fifty years has been wide ranging, involving anywhere from two claimants to 137 claimants.190 As explained by the Ambiente tribunal, ‘[i]f it is possible under the ICSID Convention to have multi-party proceedings with three, five, or ten claimants, it is hard to accept the proposition that there is a certain limitation to the number of claimants which cannot be exceeded’.191 As explained in more detail below, however, issues concerning the manageability of proceedings and respect for due process may arise in the context of mass claims, such as Abaclat v. Argentina, which involved more than 60,000 claimants.
9.69 In terms of the frequency of multi-party ICSID arbitrations—as compared to the caseload more generally—a review of the 412 concluded ICSID cases confirms how common such proceedings have been historically: 138 (33%) involved claims brought by more than one claimant,192 and two involved claims brought against more than one respondent.193 And a review of the 226 pending ICSID cases confirms that multi-party proceedings remain as common, if even more so, since the pending cases include an even higher number of multi-party arbitrations, 105 (46%) involved claims brought by more than one claimant.194 These figures have not gone unnoticed by tribunals when faced with challenges to jurisdiction owing to the multi-party nature of the arbitration:
Fourthly, in the history of ICSID, there are numerous examples of cases involving several or even multiple claimants. Claimants submit that there have been more than 120 multi-party investment cases, including ICSID and NAFTA. Whether this number is correct or not, a look at ICSID’s case list reveals that 38 out of the (p. 176) 398 reported cases include the phrase ‘and others’ on the claimant’s side, i.e. they are multi-party cases.195
9.70 And as a result, objections to multi-party arbitrations involving claimants of different nationalities have been met with limited success before ICSID and UNCITRAL tribunals where the claims arise from the same dispute and involve the same set of facts. In Flughafen v. Venezuela and Rurelec v. Bolivia, the tribunals dismissed respondent objections that they did not consent to a single arbitration in which multiple claimants of various nationalities asserted claims under different bilateral investment treaties but arising from the same dispute.196 The tribunal in Noble Energy v. Ecuador likewise dismissed the respondent’s objection that it had not consented to a single arbitration proceeding with multiple claimants under three different instruments (a bilateral-investment treaty, concession contract, and investment agreement) arising from the same investment.197 There have been reports, however, in at least two otherwise confidential UNCITRAL arbitrations against Turkmenistan198 and the Czech Republic,199 that jurisdictional objections against unrelated multiple claimants have been successful. In sum, multi-party arbitration has become a common and generally accepted practice in ICSID and UNCITRAL arbitration and requires no consent beyond the general requirements of consent to arbitration, provided the claims arise from the same dispute, same set of facts and same investment.
9.71 A multi-party arbitration may also be the result not of multiple claimants jointly filing an arbitration together, but from the submission of a number of separate arbitrations that later become consolidated.200 Consolidation is ‘a procedural (p. 177) device combining two or more proceedings into one proceeding’,201 and once combined, the consolidated tribunal takes over the proceedings and the other tribunals cease to function. Consolidation can occur in one of two ways: if there is consolidation contemplated in the applicable arbitration rules or investment treaty, or if all parties agree to consolidate otherwise separate proceedings.
9.72 Neither the ICSID Convention nor the UNCITRAL Arbitration Rules currently include a provision providing for the consolidation of claims.202 NAFTA Article 1126 does, however, include a specific procedure for the consolidation of two or more arbitration proceedings that can be initiated by either the investor or the state.203 Once requested, the decision on whether or not to consolidate is decided by a three-member tribunal appointed by ICSID’s Secretary-General, comprised of a national of the state of the disputing investor, a national of the disputing state party, and a third, presiding arbitrator, not a national of any NAFTA state. NAFTA Article 1126(2) sets out three requirements for consolidation of claims submitted to arbitration: (i) that the claim ‘have a question of law or fact in common’; (ii) that consolidation would be ‘in the interest of a fair and efficient resolution of the claim’; and (iii) the parties have an opportunity to be heard on the consolidation request.
9.73 There have been two decisions rendered by tribunals in response to requests for consolidation under NAFTA Article 1126, one arbitration under the ICSID Additional Facility Rules (Corn Products v. Mexico) and another under the 1976 UNCITRAL Arbitration Rules (Canfor v. U.S.A.). In Corn Products, although the consolidation tribunal found common questions of law and fact, it did not find that consolidation would be in the interest of a fair and efficient resolution of the claim, owing to confidentiality concerns between direct and major competitors (p. 178) and the different procedural stages of the two arbitrations.204 In contrast, the consolidation tribunal in Canfor granted the request, having found many common questions of law and fact, and that the interests of fair and efficient resolution—measured in terms of time, costs, and the avoidance of conflicting decisions—merited consolidation.205 In both Corn Products and Canfor, each party had the opportunity to present written observations on the question of consolidation, as well as present oral arguments at a one-day hearing.206
9.74 In the absence of a specific treaty clause or arbitration provision contemplating consolidation, parties have also agreed to consolidate otherwise separate arbitrations, although the degree or modalities of consolidation have varied. For instance, in BSG Resources v. Guinea, all parties agreed to the ‘full consolidation’ of two separately filed ICSID arbitrations, meaning that any decision and award in the consolidated case would deal with claims raised in both cases.207 In Churchill Mining v. Indonesia, the parties agreed that the two disputes would be heard in a consolidated case, but could not reach agreement on whether the tribunal should render one or two decisions or awards.208 To take another example, in von Pezold v. Zimbabwe, although two separate ICSID arbitrations were filed, and two identically composed tribunals were constituted, the parties agreed at the joint first session that the cases would be heard together, but not formally consolidated with two separate decisions or awards to be issued.209 And although consolidation typically concerns two arbitrations filed under the same arbitration rules, that is not (p. 179) always the case. In Lao Holdings v. Lao, the parties agreed that the same tribunal would hear both an ICSID arbitration and a parallel ad hoc arbitration that would ‘run in tandem (if not formally consolidated) for reasons of efficiency and cost’.210
9.75 Finally, in a handful of ICSID arbitrations, parties have agreed to de facto consolidation, agreeing to common arbitrators on related ICSID tribunals—oftentimes at the recommendation of ICSID’s Secretariat—in an effort to avoid inconsistent decisions or awards.211 For instance, in two arbitrations filed against Argentina arising out of electricity concessions, ‘the Centre recommended—and all constituents approved—that a common tribunal should address both proceedings’.212 In another series of arbitrations arising from water concessions in Argentina, the parties agreed to common arbitrators across four tribunals in related cases, including one arbitration under the UNCITRAL Arbitration Rules.213
9.76 It is difficult, if not impossible, to precisely define ‘at what point a multitude of claimants turns into a “mass” of claimants’,214 as explained by the Ambiente tribunal. Although the use of the ‘mass claim’ label is inappropriate to describe multi-party arbitrations (involving anywhere from 2–137 claimants), a proceeding involving 180,000 claimants (later reduced to 60,000) properly qualifies as a mass-claims proceeding. That arbitration proceeding was Abaclat v. Argentina, the first case in ICSID’s history involving mass claims brought in a single arbitration proceeding, registered in 2007 and concluded in 2016. In its 4 August 2011 majority decision, the Abaclat tribunal held that it had jurisdiction over the claims and that the mass aspect of those claims did not constitute (p. 180) an impediment to their admissibility.215 Although the Abaclat mass-claims arbitration did not proceed to a final reasoned award—owing to a settlement between the parties approved in December 2016216—the tribunal’s decision on jurisdiction and admissibility has been discussed at length by tribunals handling multi-party arbitrations and will no doubt inform any future mass claims proceedings.217
9.77 Although the case is notable, from a procedural perspective, for a panoply of reasons—the five-month delay between filing and registration of the claims during which the respondent sought to challenge ICSID’s registration of the arbitration,218 the repeated proposals for disqualification of the majority of the tribunal following adverse procedural rulings,219 the inordinately high number of dissents to decisions, procedural orders, and letters,220 and the apparent breach (p. 181) of the principle of secrecy of deliberations221—perhaps the most novel are the tribunal’s implementation of procedural adaptations to make mass claims workable in the ICSID arbitration framework. According to the tribunal, ‘where an investment … shows particular characteristics, these characteristics may influence the way of conducting the arbitration, and lead the tribunal to make certain adaptations to the standard procedure in order to give effect to the choice of ICSID arbitration’.222 The tribunal, in a majority decision, therefore decided that it had the power under Article 44 of the ICSID Convention and Rule 19 of the ICSID Arbitration Rules to design and implement such adaptations.223 In the words of the tribunal, ‘[a]daptations to hear the present case collectively would concern not that much the object, but rather (i) the way the Tribunal will conduct such examination, and/or (ii) the way claimants are represented’.224 In practical terms, the tribunal then proceeded to issue procedural orders putting those adaptations into place, splitting the merits proceedings into a series of phases (Phase 2A concerning the merits issues; Phase 2B focusing on a verification of claimants’ database; Phase 2C joining and concluding Phases 2A and 2B)225 and appointing a tribunal expert to verify claimants’ database.226
1 ICSID, Practice Notes for Respondents, December 2015. The same flow-chart also appears in ICSID’s Annual Report and on its website. See ICSID Annual Report FY2017, p. 29, <https://icsid.worldbank.org/en/Pages/process/Arbitration.aspx>.
3 For instance, Mexico’s investment treaties with Slovakia, Belarus and China, provide that ‘the arbitral tribunal shall determine the seat of arbitration’. Agreement between the United Mexican States and the Slovak Republic on the Promotion and Reciprocal Protection of Investments, 26 October 2007, Article 25(1); Agreement between the United Mexican States and the Government of the Republic of Belarus on the Promotion and Reciprocal Protection of Investments, 4 September 2008, Article 25(1); Agreement between the United Mexican States and the Government of the People’s Republic of China on the Promotion and Reciprocal Protection of Investments, 7 November 2008, Article 25(1).
4 DR–CAFTA requires that the legal seat must be in the territory of ‘a State that is a party to the New York Convention’. Dominican Republic Central America Free Trade Agreement, 5 August 2004, Article 10.20.
13 See Appendix 8A—Decisions on Place of Arbitration in ICSID Additional Facility and UNCITRAL Arbitrations. See also Frauke Nitschke and Kamel Ait-El-Hadj, ‘Determining the Place of Arbitration in ICSID Additional Facility Proceedings, ICSID Review’, 30 Foreign Investment Law Journal, no. 1 (2015), pp. 243–59.
14 See Appendix 8A—Decisions on Place of Arbitration in ICSID Additional Facility and UNCITRAL Arbitrations.
15 Cemusa—Corporación Europea de Mobiliario Urbano, S.A. and Corporación Americana de Equipamientos Urbanos, S.L. v. United Mexican States, ICSID Case No. ARB(AF)/13/2; América Móvil S.A.B. de C.V. v. Republic of Colombia, ICSID Case No. ARB(AF)/16/5; Air Canada v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/17/1.
16 See Appendix 8A—Decisions on Place of Arbitration in ICSID Additional Facility and UNCITRAL Arbitrations.
17 Methanex Corporation v. United States of America, UNCITRAL; United Parcel Service of America, Inc. v. Canada, UNCITRAL; Canfor Corporation v. United States of America, UNCITRAL; Glamis Gold, Ltd. v. The United States of America, UNCITRAL; International Thunderbird Gaming Corporation v. The United Mexican States, UNCITRAL; Merrill & Ring Forestry L.P. v. Canada, UNCITRAL; Detroit International Bridge Company v. Canada, UNCITRAL, PCA Case 2012–25; Eli Lilly and Co. v. Government of Canada, UNCITRAL, Case No. UNCT/14/2.
26 TCW Group, Inc. and Dominican Energy Holdings, L.P. v. The Dominican Republic, UNCITRAL, PCA Case No. 2008–06; Grand River Enterprises Six Nations, Ltd., et al. v. United States of America, UNCITRAL; Apotex Inc. v. The Government of the United States of America, UNCITRAL, ICSID Case No. UNCT/10/2.
29 St Marys VCNA, LLC v. Government of Canada, UNCITRAL, PCA Case No. 2012–29; Bilcon of Delaware et al v. Government of Canada, UNCITRAL, PCA Case No. 2009–04; Windstream Energy LLC (U.S.A.) v. The Government of Canada, UNCITRAL, PCA Case No. 2013-22.
31 Hulley Enterprises Limited v. The Russian Federation, UNCITRAL, PCA Case No. 2005-03/AA226; Yukos Universal Limited v. The Russian Federation, UNCITRAL, PCA Case No. 2005-04/AA227; Veteran Petroleum Limited v. The Russian Federation, UNCITRAL, PCA Case No. 2005-05/AA228; Dunkeld International Investment Limited (Turks & Caicos) v. The Government of Belize, UNCITRAL, PCA Case No. 2010–13; Guaracachi America, Inc. & Rurelec plc v. Plurinational State of Bolivia, UNCITRAL, PCA Case No. 2011–17; Copper Mesa Mining Corporation (Canada) v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2012–02; Peter A. Allard v. The Government of Barbados, UNCITRAL, PCA Case No. 2012–06.
33 Mesa Power Group, LLC v. Canada, UNCITRAL, PCA Case No. 2012–17, Procedural Order No. 3, 28 March 2013, para. 38; see also Detroit International Bridge Company v. Canada, UNCITRAL, PCA Case 2012–25, Procedural Order No. 2, 28 January 2013, para. 23 (‘The UNCITRAL Notes referred to by the disputing parties provide some guidance to the Tribunal in this respect, but do not have a binding character.’); Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada, ICSID Case No. ARB(AF)/07/4, Procedural Order No. 1, 7 October 2009, para. 38 (‘In this regard the Tribunal notes that both Parties have referred to the UNCITRAL Notes as a document offering relevant guidance. The Tribunal considers that the five factors identified in the UNCITRAL Notes are of some utility in assisting the Tribunal towards a conclusion …’.)
51 See generally ICSID Secretariat, Discussion Paper, Possible Improvements of the Framework for ICSID Arbitration, 22 October 2004; ICSID Secretariat, Working Paper, Suggested Changes to the ICSID Rules and Regulations, 12 May 2005; Aurelia Antonietti, ‘The 2006 Amendments to the ICSID Rules and Regulations and the Additional Facility Rules, ICSID Review’, 21 Foreign Investment Law Journal, (2006), pp. 427–8; Aïssatou Diop, ‘Objection under Rule 41(5) of the ICSID Arbitration Rules, ICSID Review’, 25 Foreign Investment Law Journal, no. 2 (2010), pp. 312–36; Antonio Parra, ‘ICSID Arbitration Rule 41(5) Objections’ in Building Investment Law: The First Fifty Years of ICSID (Meg Kinnear, Geraldine R. Fischer, Jara Mínguez Almeida, Luisa Fernanda Torres, Mairée Uran Bidegain (eds), Kluwer, 2015), pp. 593–9; Lars Markert, ‘Summary Dismissal of ICSID Proceedings, ICSID Review’, 31 Foreign Investment Law Journal, no. 3 (2016), pp. 690–711.
52 Antonio Parra, ‘ICSID Arbitration Rule 41(5) Objections’ in Building Investment Law: The First Fifty Years of ICSID (Meg Kinnear, Geraldine R. Fischer, Jara Mínguez Almeida, Luisa Fernanda Torres, Mairée Uran Bidegain (eds), Kluwer, 2015), pp. 593–9. As to practice under Article 36(3), ICSID counsel noted in 2015 that ‘ICSID has refused 18 requests for arbitration or conciliation brought under the ICSID Convention’. Eloïse Obadia and Frauke Nitschke, ‘Institutional Arbitration and the Role of the Secretariat’ in Litigating International Investment Disputes (Chiara Giorgetti (ed), Brill, 2014), p. 93. See also Sergio Puig and Chester Brown, ‘The Secretary-General’s Power to Refuse to Register a Request for Arbitration under the ICSID Convention, ICSID Review’, 27 Foreign Investment Law Journal, no. 1 (2012), pp. 172–91.
53 See Appendix 8B—Decisions on Manifest Lack of Merit Applications in ICSID and ICSID Additional Facility Arbitrations.
54 Chevron v. Republic of Ecuador, UNCITRAL, PCA Case No. 2009–23, Third Interim Award on Jurisdiction Admissibility, 27 February 2012, para. 4.91. (‘The UNCITRAL Rules do not contain any provision equivalent to ICSID Arbitration Rule 41(5).’)
55 Pac Rim Cayman LLC. v. Republic of El Salvador, ICSID Case No. ARB/09/12, Decision on the Respondent’s Preliminary Objections Under CAFTA Articles 10.20.4 and 10.20.5, 2 August 2010; Railroad Development Corporation v. Republic of Guatemala, ICSID Case No. ARB/07/23, Decision on Objection to Jurisdiction CAFTA Article 10.20.5, 17 November 2008; The Renco Group, Inc. v. The Republic of Peru, ICSID Case No. UNCT/13/1, Decision as to the Scope of the Respondent’s Preliminary Objections under Article 10.20.4, 18 December 2014; The Renco Group, Inc. v. The Republic of Peru, ICSID Case No. UNCT/13/1, Tribunal Decision on Respondent’s Request for Relief, 2 June 2015; The Renco Group, Inc. v. The Republic of Peru, ICSID Case No. UNCT/13/1, Partial Award on Jurisdiction, 15 July 2016. In a fourth arbitration, Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc. v. Republic of Panama, ICSID Case No. ARB/16/34, the respondent filed expedited objections on 30 May 2017, an application which remains pending before the tribunal.
26.1 A Party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that: a. a claim or defence is manifestly without legal merit; b. a claim or defence is manifestly outside the jurisdiction of the Tribunal; or c. a claim or defence is manifestly inadmissible.
26.2 An application for the early dismissal of a claim or defence under Rule 26.1 shall state in detail the facts and legal basis supporting the application. The Party applying for early dismissal shall, at the same time as it files the application with the Tribunal, send a copy of the application to the other Party, and shall notify the Tribunal that it has done so, specifying the mode of service employed and the date of service.
(1) A party may request that the Arbitral Tribunal decide one or more issues of fact or law by way of summary procedure, without necessarily undertaking every procedural step that might otherwise be adopted for the arbitration.
(2) A request for summary procedure may concern issues of jurisdiction, admissibility or the merits. It may include, for example, an assertion that: (i) an allegation of fact or law material to the outcome of the case is manifestly unsustainable; (ii) even if the facts alleged by the other party are assumed to be true, no award could be rendered in favour of that party under the applicable law; or (iii) any issue of fact or law material to the outcome of the case is, for any other reason, suitable to determination by way of summary procedure.
62 In Trans-Global Petroleum, the Rule 41(5) application was filed within thirty-two days but came within the deadline in light of ICSID Administrative and Financial Regulation 29(2), which stipulates that a time limit is extended to the next business day if the expiry of a period falls on Saturday, Sunday, or public holiday.
63 In MOL, the tribunal permitted the respondent to supplement its Rule 41(5) objections filed one month earlier. MOL Hungarian Oil and Gas Company Plc v. Republic of Croatia, ICSID Case No. ARB/13/32. Similarly, in Pan American Energy, the respondent filed its Rule 41(5) objection and then filed a further memorial on that objection more than a month later. Pan American Energy LLC v. Plurinational State of Bolivia, ICSID Case No. ARB/10/8.
69 Global Trading Resource Corp. and Globex International, Inc. v. Ukraine, ICSID Case No. ARB/09/11; RSM Production Corporation and others v. Grenada, ICSID Case No. ARB/10/6; Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25.
70 Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan, ICSID Case No. ARB/07/25; Accession Mezzanine Capital L.P. and Danubius Kereskediihaz Vagyonkezelii Zrt. v. Hungary, ICSID Case No. ARB/12/3; Emmis International Holding, B.V., Emmis Radio Operating, B.V., and MEM Magyar Electronic Media Kereskedelmi es Szolgaltat Kft. v. Hungary, ICSID Case No. ARB/12/2.
72 See Appendix 8B—Decisions on Manifest Lack of Merit Applications in ICSID and ICSID Additional Facility Arbitrations.
82 Accession Mezzanine Capital L.P. and Danubius Kereskediihaz Vagyonkezelii Zrt. v. Hungary, ICSID Case No. ARB/12/3; Emmis International Holding, B.V., Emmis Radio Operating, B.V., and MEM Magyar Electronic Media Kereskedelmi es Szolgaltat Kft. v. Hungary, ICSID Case No. ARB/12/2; Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan, ICSID Case No. ARB/07/25.
83 PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea, ICSID Case No. ARB/13/33, The Tribunal’s Decision on the Respondent’s Objections Under Rule 41(5) of the ICSID Arbitration Rules, 28 October 2014; MOL Hungarian Oil and Gas Company Plc v. Republic of Croatia, ICSID Case No. ARB/13/32, Decision on Respondent’s Application Under ICSID Arbitration Rule 41(5), 2 December 2014; Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50, Decision on Respondent’s Application Under Rule 41(5), 20 March 2017.
86 ICSID Convention, Article 43; ICSID Arbitration Rules, Rule 34(2)(b); see also Meg Kinnear and Randi Ayman, ‘Site Visits in ICSID Arbitration’ in International Arbitration Under Review: Essays in Honour of John Beechey (Andrea Carlevaris et al. (eds), ICC, 2015), pp. 247–58.
93 See Appendix 8C—Site Visits in ICSID and UNCITRAL Arbitrations; ICSID Annual Report FY2017, p. 11.
94 ibid. It is conceivable that additional site visits have been undertaken by tribunals in ICSID arbitrations for which procedural details have not become publicly available. Writing in 1998, then-ICSID Legal Advisor Antonio Parra noted that ‘there have been several recent instances of tribunals deciding to ‘visit the scene connected with the dispute’. Antonio Parra, ‘The Role of the ICSID Secretariat in the Administration of Arbitration Proceedings under the ICSID Convention, ICSID Review’, 13 Foreign Investment Law Journal, (1998), pp. 85, 95.
95 IAReporter, ‘Arbitrators see no merits breaches in shopping center project dispute and use site-visit to assess investor’s complaints of discrimination vis-à-vis other projects’, (29 April 2015), available at: <http://www.iareporter.com/>.
96 See Appendix 8C—Site Visits in ICSID and UNCITRAL Arbitrations.
101 See Appendix 8C—Site Visits in ICSID and UNCITRAL Arbitrations.
127 ibid; see also Meg Kinnear and Randi Ayman, ‘Site Visits in ICSID Arbitration’ in International Arbitration Under Review: Essays in Honour of John Beechey (Andrea Carlevaris et al. (eds), ICC, 2015), pp. 247–58.
135 See Appendix 8D—Tribunal Experts in ICSID and UNCITRAL Arbitrations. In contrast, tribunals have, on occasion, invited fact witnesses to testify before the tribunal. For instance, in Bayindir, the tribunal did not formally appoint an expert, but did invite a World Bank representative “to appear as a witness to be questioned by the Tribunal on the basis of a list of questions to be submitted to him in advance.” Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, 27 August 2009, paras. 81, 262, 288, 291.
141 Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration & Production Company Limited (‘Bapex’), and Bangladesh Oil Gas and Mineral Corporation (‘Petrobangla’), ICSID Case Nos. ARB/10/11 and ARB/10/18.
163 See Appendix 8E—Applications for Reconsideration in ICSID and UNCITRAL Arbitrations.
167 Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID Case No. ARB/13/31; SolEs Badajoz GmbH v. Kingdom of Spain, ICSID Case No. ARB/15/38.
170 Churchill Mining and Planet Mining Pty Ltd, formerly ARB/12/40 v. Republic of Indonesia, ICSID Case No. ARB/12/40 and 12/14; ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30.
177 See Appendix 8E—Applications for Reconsideration in ICSID and UNCITRAL Arbitrations.
178 ibid. (Appendix 8E covers the sixty-nine reconsideration requests between 2010 and 2017. There were seventeen requests for reconsideration in ICSID and UNCITRAL arbitrations between 1985 and 2009).
183 See Appendix 8E—Applications for Reconsideration in ICSID and UNCITRAL Arbitrations.
188 The first ever ICSID tribunal to grant a reconsideration request and reverse a prior decision was in Standard Chartered Bank (Hong Kong) Limited v. Tanzania Electric Supply Company Limited, ICSID Case No. ARB/10/20, Award, 12 September 2016.
189 Giovanni Alemanni and Others v. Argentina, Decision on Jurisdiction and Admissibility, 17 November 2014, Concurring Opinion of Mr J Christopher Thomas QC, para. 4. (‘In the words of Aron Broches, then-ICSID Secretary-General, “many significant international investment arrangements involve more than just two parties, and for these it would be desirable to insert into the related agreements provisions for the settlement of multipartite disputes”.’)
190 See Itera International Energy LLC and Itera Group NV v. Georgia (two claimants); OKO Pankki OYJ, VTB Bank (Deutschland) AG and Sampo Bank Plc v. Estonia (three claimants); Goetz and others v. Burundi (six claimants); Piero Foresti, Laura de Carli & Others v. South Africa (seven claimants); Funnekotter and others v. Zimbabwe (fourteen claimants); Bayview and others v. Mexico (forty-six claimants); Giovanni Alemanni and others v. Argentina (seventy-four claimants); Ambiente Ufficio S.P.A. and others v. Argentina (ninety claimants); and Alasdair Ross Anderson and others v. Costa Rica (137 claimants).
193 Republic of Equatorial Guinea v. CMS Energy Corporation and others, ICSID Case No. CONC(AF)/12/2; Government of the Province of East Kalimantan v. PT Kaltim Prima Coal and others, ICSID Case No. ARB/07/3.
195 Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013, para. 135. Although the Ambiente tribunal noted cases including the phrase ‘and others’, it also recognized that the phrase points to cases with three or more claimants. In cases with only two claimants, the case name includes the name of those two claimants, with no need for the addition of ‘and others’.
196 Flughafen Zürich A.G. and Gestión e Ingeniería IDC S.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/19, Award, 18 November 2014; Guaracachi America, Inc. and Rurelec PLC v. The Plurinational State of Bolivia, UNCITRAL, PCA Case No. 2011–17, Award.
200 See generally Gabrielle Kaufmann-Kohler, Laurence Boisson de Chazournes, Victor Bonnin, and Makane Moïse Mbengue, ‘Consolidation of Proceedings in Investment Arbitration: How Can Multiple Proceedings Arising from the Same or Related Situations Be Handled Effectively? ICSID Review’, 21 Foreign Investment Law Journal, (2006); Lucinda Low and Jeffrey Pryce, ‘Consolidation of Proceedings in Investor-State Arbitration: From the Iran–U.S. Claims Tribunal to the NAFTA’, in The Iran–U.S. Claims Tribunal at 25: The Cases Everyone Needs to Know for Investor-State Arbitration (Christopher S. Gibson and Christopher R. Drahozal (eds), Oxford University Press, 2007).
202 As part of ICSID’s fourth amendment process, commenced in 2016, consolidation is one of the sixteen topics it is considering for potential rule amendments. In its April 2017 paper on the ICSID Rules Amendment Process, it describes the topic as follows: ‘Consolidation: a number of commentators on investor-state dispute settlement are concerned about a lack of consistency or coherence in case law. While this is not universal, there are examples of holdings that are difficult to reconcile. Consolidation of cases is one mechanism that could reduce costs and increase the likelihood of consistent awards. Consolidation is available under the current ICSID rules with consent of the parties, and has been formally adopted in some new investment treaties. It could be elaborated in an amendment to the ICSID rules as well.’
203 Consolidation provisions based on NAFTA Article 1126 also appear in a number of other agreements and treaties close to ratification (CETA (Article 8.43) or currently being negotiated (TTIP (Article II.27) and the TPP (Article 9.28)). See also Giovanni Alemanni and Others v. Argentina, Decision on Jurisdiction and Admissibility, 17 November 2014, Concurring Opinion of Mr J Christopher Thomas QC, para. 6. (‘Consolidation provisions akin to NAFTA Article 1126 have since been negotiated in many bilateral investment treaties and free trade agreements entered into by each of the NAFTA Parties with other ICSID Contracting States and have been adopted by other non-NAFTA States in their treaty-making practice.’)
204 Corn Products International, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/1, and Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/5, Order of the Consolidation Tribunal, 20 May 2005 (‘Corn Products’).
205 Canfor Corporation v. United States of America and Tembec et al. v. United States of America and Terminal Forest Products Ltd. v. United States of America, Order of the Consolidation Tribunal, 7 September 2005 (‘Canfor’).
206 Corn Products International, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/1, and Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/5, Order of the Consolidation Tribunal, 20 May 2005, para. 3; Canfor Corporation v. United States of America and Tembec et al. v. United States of America and Terminal Forest Products Ltd. v. United States of America, Order of the Consolidation Tribunal, 7 September 2005, paras. 7–14.
207 BSG Resources Limited, BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea, ICSID Case No. ARB/14/22, Procedural Order No. 5, 14 February 2016; BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v. Republic of Guinea, ICSID Case No. ARB/15/46, Procedural Order No. 1, 14 February 2016.
208 Churchill Mining Plc and Planet Mining Pty Ltd, formerly ARB/12/40 v. Republic of Indonesia, ICSID Case No. ARB/12/40 and 12/14, Decision on Jurisdiction, 24 February 2014, para. 58. The Tribunal issued two Decisions on Jurisdiction on 24 February 2014 (one in respect of Churchill Mining and one in respect of Planet Mining), but one Award on 6 December 2016 concerning both claimants.
209 Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015; Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. ARB/10/25, Award, 28 July 2015.
210 Lao Holdings N.V. v. Lao People’s Democratic Republic, ICSID Case No. ARB(AF)/16/2, Procedural Order No. 1 (Revised), 16 May 2017, para. 25.1; Sanum Investments Limited v. Lao People’s Democratic Republic, ICSID Case No. ADHOC/17/1, Procedural Order No. 1, 16 May 2017.
211 See Alcoa Minerals of Jamaica, Inc. v. Jamaica, ICSID Case No. ARB/74/2 and Kaiser Bauxite Company v. Jamaica, ICSID Case No. ARB/74/3 and Reynolds Jamaica Mines Limited and Reynolds Metals Company v. Jamaica, ICSID Case No. ARB/74/4; Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4 and Consortium R.F.C.C. v. Kingdom of Morocco, ICSID Case No. ARB/00/6; Ioannis Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18 and Ron Fuchs v. Georgia, ICSID Case No. ARB/07/15.
212 EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23, 11 June 2012, n. 1; Electricidad Argentina S.A. and EDF International S.A. v. Argentine Republic, ICSID Case No. ARB/03/22.
213 Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentine Republic, ICSID Case No. ARB/03/17 and Aguas Cordobesas S.A., Suez, and Sociedad General de Aguas de Barcelona S.A. v. Argentine Republic, ICSID Case No. ARB/03/18 and Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A v. Argentine Republic, ICSID Case No. ARB/03/19 and AWG Group Ltd. v. The Argentine Republic, UNCITRAL.
216 On 29 December 2016, the tribunal entered a consent award approving the Settlement Agreement signed by TFA on behalf of the Claimants and the Argentine Republic. Abaclat and others v. Argentine Republic, ICSID Case No. ARB/07/5, Consent Award, 29 December 2016. The consent award includes a reservation such that ‘the Settlement Agreement and the Consent Award and their terms and provisions are made and agreed without any admission by the Parties of ICSID jurisdiction and international liability and it is not, and shall not, be represented and/or construed by the Parties as an admission of international liability or wrongdoing on the part of either Party.’ Abaclat and others v. Argentine Republic, ICSID Case No. ARB/07/5, Consent Award, 29 December 2016, para. II.
217 Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013; Giovanni Alemanni and Others v. Argentina, Decision on Jurisdiction and Admissibility, 17 November 2014; see also Donald Donovan, ‘Abaclat and others v Argentine Republic: As a Collective Claims Proceeding ICSID Rev’, 27 Foreign Investment Law Journal, (2012); Hans van Houtte and Bridie McAsey, ‘Case Comment, Abaclat and others v. Argentine Republic: ICSID, the BIT and Mass Claims, ICSID Rev’, 27 Foreign Investment Law Journal (2012); Manish Aggarwal and Simon Maynard, ‘Investment Treaty Arbitration Post-Abaclat: Towards a Taxonomy of “Mass” Claims’, 3 Cambridge Journal of International and Comparative Law, no. 3 (2014); Stacie I. Strong, ‘Case Comment: Ambiente Ufficio SpA and others v. Argentine Republic: Heir of Abaclat? Mass and Multiparty Proceedings, ICSID Rev’, 29 Foreign Investment Law Journal (2014).
218 Although the arbitration was registered on 7 February 2007, it was first filed with ICSID on 14 September 2006. Abaclat and others v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para. 98.
219 See Appendix 3A—Challenges to Arbitrators in ICSID Arbitrations.
220 Dissenting Opinion of Georges Abi-Saab to Decision on Jurisdiction and Admissibility, 4 August 2011; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 13, 25 September 2012; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 15, 20 November 2012; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 17, 8 February 2013; Statement of Dissent to the Directions from the Tribunal to the Parties, 21 October 2013; Statement of Dissent to the Directions from the Tribunal to the Parties, 4 November 2013; Statement of Dissent to the Letter from the Tribunal to the Parties, 28 November 2013; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 23, 7 February 2014; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 27, 30 May 2014; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 28, 9 June 2014; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 30, 11 June 2014; Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 32, 1 August 2014; Concurrent and Dissent Statement of Dissent of Dr Santiago Torres Bernárdez to Procedural Order No. 34, 9 December 2014.
221 Declaration appended to the Award by Arbitrator Santiago Torres Bernardez, 29 December 2016; Additional Declaration by President Pierre Tercier and Arbitrator Albert Jan van den Berg, 29 December 2016.