The basic process of arbitration of International Center for the Settlement of Investment Disputes

   Rules of Procedure for Arbitration Proceedings (hereinafter, and in accordance with Rule 56(2), the “Arbitration Rules”) of the International Center for Settlement of Investment Disputes were adopted by the Administrative Council of the Center pursuant to Article6(1)(c) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. In contract-based The International Center for the Settlement of Investment Disputes (as in private international commercial arbitration), the parties generally give their consent simultaneously, in an arbitration clause contained in their investment contract or a separate submission agreement. In non-contractual arbitration, the parties express their consent in two steps. First, the permission of the host State to submit to International Center for the Settlement of Investment Disputes jurisdiction is contained in its national legislation or a BIT or MIT. Second, the investor consents either by writing to the host State at any time (for example, in a simple letter or a notice of dispute) or by filing a request to arbitrate with International Center for the Settlement of Investment Disputes. In this way, the parties’ agreement to arbitrate is established.

International Center for the Settlement of Investment Disputes arbitral process is governed not only by International Center for the Settlement of Investment Disputes Convention itself but also by the Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (the Institution Rules) (Annex 2); the Rules of Procedure for Arbitration Proceedings (the Arbitration Rules) (Annex 3); and the Administrative and Financial Regulations (the Regulations). The requirements of the Convention are few but are for the most part mandatory. There is more flexibility concerning the Rules and Regulations. The parties may modify provisions of the Arbitration Rules (not mandated by the Convention) by agreement, and depart from the Regulations to the extent expressly provided therein.

Arbitration under the aegis of International Center for the Settlement of Investment Disputes Additional Facility are governed by the Additional Facility Rules and the Additional Facility Arbitration Rules. Most of the provisions that apply to Additional Facility Arbitration are identical or very similar to those that apply to International Center for the Settlement of Investment Disputes Convention Arbitration.

This chapter singles out only those Additional Facility Rules or Arbitration Rules that differ. Substantial amendments to International Center for the Settlement of Investment Dispute’s rules and regulations took effect on 10 April 2006. Prior rules will still be relevant in certain arbitration, however, because Article 44 of the Convention specifies that arbitration proceedings are governed by the rules in force at the time the parties consent to The International Center for the Settlement of Investment Disputes.”‘

When The International Center for the Settlement of Investment Disputes are based on bilateral investment treaties the applicable Arbitration Rules are likely to be those in force when the investor consents to arbitration, usually when the investor files its request for arbitration with ICS1D (see Chapter 3), but possibly earlier if such consent is contained in a separate letter.”‘