Preliminary Objections - ICSID Convention Arbitration

The Tribunal may consider whether a dispute is within its competence, on its own initiative or on the objection by a party (Article 41 of the ICSID Convention, Arbitration Rule 41(2)).

The objection must be made as early as possible in the proceeding.  In any event, the objection must be made before the date for filing the respondent’s counter-memorial (or the respondent’s rejoinder if the objection is to an ancillary claim) (Arbitration Rule 41(1)), unless the relevant facts are unknown to the party at that time.

When an objection to jurisdiction is raised, the Tribunal may:

  • deal with the objection as a preliminary question (“bifurcate”) with or without suspending consideration of the merits;
  • overrule the objection and resume the proceeding on the merits issuing a decision to that effect; or
  • join the objection to the merits of the dispute.
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