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Other Alternative Dispute Resolution Methods
International Centre for the
Schedule C: Arbitration (additional facility) rules
Schedule C: Arbitration (additional facility) rules
CHAPTER I - INTRODUCTION
Article 1 - Scope of Application
Where the parties to a dispute have agreed that it shall be referred to arbitration under the Arbitration (Additional Facility) Rules, the dispute shall be settled in accordance with these Rules, save that if any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
Article 2 - The Notice
Any State or any national of a State wishing to institute arbitration proceedings (hereinafter called the "Claimant") shall send a notice to that effect in writing to the Secretariat at the seat of the Centre. It shall be drawn up in an official language of the Centre, shall be dated and shall be signed by the party sending it.
The notice may be given jointly by the parties to the dispute.
The notice shall:
designate precisely each party to the dispute and state the address of each;
set forth the relevant provisions embodying the agreement of the parties to refer the dispute to arbitration;
indicate the date of approval by the Secretary-General pursuant to Article 4 of the Additional Facility Rules of the agreement of the parties providing for access to the Additional Facility; and
contain information concerning the issues in dispute and an indication of the amount involved, if any.
The notice shall in addition set forth any provisions agreed by the parties regarding the number of arbitrators and the method of their appointment, as well as any other provisions agreed concerning the settlement of the dispute.
The notice shall be accompanied by five additional signed copies and by the fee prescribed by Article 5 of the Administrative and Financial Rules (Additional Facility).
As soon as the Secretary-General shall have satisfied himself that the notice conforms in form and substance to the provisions of Article 3 of these Rules, he shall register the notice in the Arbitration (Additional Facility) Register and on the same day dispatch to the parties a certificate of registration. He shall also transmit a copy of the notice and of the accompanying documentation (if any) to the other party to the dispute (hereinafter called the "Respondent").
The certificate of registration of a notice shall:
record that the notice is registered and indicate the date of the registration and of the dispatch of that notice;
notify each party that all communications in connection with the proceeding will be sent to the address stated in the notice, unless another address is indicated to the Secretariat;
unless such information has already been provided, invite the parties to communicate to the Secretary-General any provisions agreed by them regarding the number and the method of appointment of the arbitrators; and
invite the parties to proceed, as soon as possible, to constitute an Arbitral Tribunal in accordance with Chapter III of these Rules.
Article 6 - General Provisions
In the absence of agreement between the parties regarding the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the President of the Tribunal, appointed by agreement of the parties, all in accordance with Article 10 of these Rules.
Upon the dispatch of the certificate of registration of the notice for arbitration, the parties shall promptly proceed to constitute a Tribunal.
The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree.
If the Tribunal shall not have been constituted within 90 days after the certificate of registration of the notice for arbitration has been dispatched by the Secretary-General, or such other period as the parties may agree, the Chairman of the Administrative Council (hereinafter called the "Chairman") shall, at the request of either party transmitted through the Secretary-General, appoint the arbitrator or arbitrators not yet appointed and, unless the President shall already have been designated or is to be designated later, designate an arbitrator to be President of the Tribunal.
Except as the parties shall otherwise agree, no person who had previously acted as a conciliator or arbitrator in any proceeding for the settlement of the dispute or as a member of any fact-finding committee relating thereto may be appointed as a member of the Tribunal.
Except where the sole arbitrator or each individual member of the Tribunal is appointed by agreement of the parties, the majority of the arbitrators shall be nationals of States other than the State party to the dispute and the State whose national is a party to the dispute. Accordingly, nationals of the State party to the dispute or of the State whose national is a party to the dispute may be appointed by a party only if appointment by the other party to the dispute of the same number of arbitrators of either of these nationalities would not result in a majority of arbitrators of these nationalities.
Arbitrators appointed by the Chairman shall not be nationals of the State party to the dispute or of the State whose national is a party to the dispute.
Notwithstanding the provisions of Article 6 (4) of these Rules, if the notice for arbitration relates to a dispute arising under any investment or agreement financed in whole or in part by the International Bank for Reconstruction and Development, the International Finance Corporation or the International Development Association, the Secretary-General shall so inform the Chairman, and the Chairman shall, when required to take any action pursuant to these Rules, select a person to whom he shall promptly delegate all the functions, responsibilities and powers assigned to the Chairman hereunder. The Secretary-General shall promptly inform the parties of any action taken pursuant to this Article.
Arbitrators shall be persons of high moral character and recognized competence in the field of law, commerce, industry or finance, who may be relied upon to exercise independent judgment.
If the parties have not agreed upon the number of arbitrators and the method of their appointment within 60 days after the registration of the notice, the Secretary-General shall, upon the request of either party promptly inform the parties that the Tribunal is to be constituted in accordance with the following procedure:
the Claimant shall, in a communication to the Respondent:
name two persons, identifying one of them, who shall not have the same nationality as nor be a national of either party, as the arbitrator appointed by it, and the other as the arbitrator proposed to be the President of the Tribunal; and
invite the Respondent to concur in the appointment of the arbitrator proposed to be the President of the Tribunal and to appoint another arbitrator;
promptly upon receipt of this communication the Respondent shall, in its reply:
name a person as the arbitrator appointed by it, who shall not have the same nationality as nor be a national of either party; and
concur in the appointment of the arbitrator proposed to be the President of the Tribunal or name another person as the arbitrator proposed to be President; and
promptly upon receipt of the reply containing such a proposal, the Claimant shall notify the Respondent whether it concurs in the appointment of the arbitrator proposed by that party to be the President of the Tribunal.
The communications provided for in paragraph (1) of this Article shall be made or promptly confirmed in writing and shall either be transmitted through the Secretary-General or directly between the parties with a copy to the Secretary-General.
Promptly upon receipt of a request by a party to the Chairman to make an appointment or designation pursuant to Article 6 (4) of these Rules, the Secretary-General shall send a copy thereof to the other party.
The Chairman shall use his best efforts to comply with that request within 30 days after its receipt, or such longer period as the parties may agree. Before he proceeds to make appointments or a designation, he shall consult both parties as far as possible.
The Secretary-General shall promptly notify the parties of any appointment or designation made by the Chairman.
The party or parties concerned shall notify the Secretary-General of the appointment of each arbitrator and indicate the method of his appointment.
As soon as the Secretary-General has been informed by a party or the Chairman of the appointment of an arbitrator, he shall seek an acceptance from the appointee.
If an arbitrator fails to accept his appointment within 15 days, the Secretary-General shall promptly notify the parties, and if appropriate the Chairman, and invite them to proceed to the appointment of another arbitrator in accordance with the method followed for the previous appointment.
The Tribunal shall be deemed to be constituted and the proceeding to have begun on the date the Secretary-General notifies the parties that all the arbitrators have accepted their appointment.
Before or at the first session of the Tribunal, each arbitrator shall sign a declaration in the following form:
"To the best of my knowledge there is no reason why I should not serve on the Arbitral Tribunal constituted with respect to a dispute between - and -.
"A statement of my past and present professional, business and other relevant relationships (if any) with the parties is attached hereto.
"I shall keep confidential all information coming to my knowledge as a result of my participation in this proceeding, as well as the contents of any award made by the Tribunal.
"I shall judge fairly as between the parties and shall not accept any instruction or compensation with regard to the proceeding from any source except as provided in the Administrative and Financial Rules (Additional Facility)."
Any arbitrator failing to sign such a declaration by the end of the first session of the Tribunal shall be deemed to have resigned.
After a Tribunal has been constituted and proceedings have begun, its composition shall remain unchanged; provided, however, that if an arbitrator should die, become incapacitated, resign or be disqualified, the resulting vacancy shall be filled as provided in this Article and Article 18 of these Rules.
An arbitrator who becomes incapacitated shall, as soon as possible, notify the other members of the Tribunal, and the Secretary-General thereof.
An arbitrator may resign by submitting his resignation to the other members of the Tribunal and the Secretary-General. If the arbitrator was appointed by one of the parties, the Tribunal shall promptly consider the reasons for his resignation and decide whether it consents thereto. The Tribunal shall promptly notify the Secretary-General of its decision.
A party may propose to a Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by Article 9 of these Rules, or on the ground that he was ineligible for appointment to the Tribunal under Article 7 of these Rules.
A party proposing the disqualification of an arbitrator shall promptly, and in any event before the proceeding is declared closed, file its proposal with the Secretary-General, stating its reasons therefor.
The Secretary-General shall forthwith:
transmit the proposal to the members of the Tribunal and, if it relates to a sole arbitrator or to a majority of the members of the Tribunal, to the Chairman; and
notify the other party of the proposal.
The arbitrator to whom the proposal relates may, without delay, furnish explanations to the Tribunal or the Chairman, as the case may be.
The decision on any proposal to disqualify an arbitrator shall be taken by the other members of the Tribunal except that where those members are equally divided, or in the case of a proposal to disqualify a sole arbitrator, or a majority of the arbitrators, the Chairman shall take that decision.
Whenever the Chairman has to decide on a proposal to disqualify an arbitrator, he shall take that decision within 30 days after he has received the proposal.
The proceeding shall be suspended until a decision has been taken on the proposal.
The Secretary-General shall forthwith notify the parties and, if necessary, the Chairman of the disqualification, death, incapacity or resignation of an arbitrator and of the consent, if any, of the Tribunal to a resignation.
Upon the notification by the Secretary-General of a vacancy on the Tribunal, the proceeding shall be or remain suspended until the vacancy has been filled.
Except as provided in paragraph 2 of this Article, a vacancy resulting from the disqualification, death, incapacity or resignation of an arbitrator shall be promptly filled by the same method by which his appointment had been made.
In addition to filling vacancies relating to arbitrators appointed by him, the Chairman shall:
fill a vacancy caused by the resignation, without the consent of the Tribunal, of an arbitrator appointed by a party; or
at the request of either party, fill any other vacancy, if no new appointment is made and accepted within 30 days of the notification of the vacancy by the Secretary-General.
In filling a vacancy the party or the Chairman, as the case may be, shall observe the provisions of these Rules with respect to the appointment of arbitrators. Article 14 (2) of these Rules shall apply mutatis mutandis to the newly appointed arbitrator.
As soon as a vacancy on the Tribunal has been filled, the proceeding shall continue from the point it had reached at the time the vacancy occurred. The newly appointed arbitrator may, however, require that the oral procedure be recommenced, if this had already been started.
Article 20 - Limitation on Choice of Forum
Arbitration proceedings shall be held only in States that are parties to the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The Arbitral Tribunal may meet at any place it deems appropriate for the inspection of goods, other property or documents. It may also visit any place connected with the dispute or conduct inquiries there. The parties shall be given sufficient notice to enable them to be present at such inspection or visit.
The award shall be made at the place of arbitration.