Default – Additional Facility Arbitration (2022 Rules)

A party is in default if it fails to appear or present its case or indicates that it will not appear or present its case (Additional Facility Arbitration Rule 59(1)). 

If a party is in default a t any stage of the proceeding, the other party may request that the Tribunal address the questions submitted to it and render an Award (Additional Facility Arbitration Rule 59(2)).

When such a request is filed, the Tribunal must notify the defaulting party and grant a grace period to cure the default, unless it is satisfied that the defaulting party does not intend to appear or present its case. The grace period must not exceed 60 days without the consent of the other party (Additional Facility Arbitration Rule 59(3)). The defaulting party cannot invoke the default procedure to seek a period of grace; the procedure can only be triggered on request by the other party.

The grace period can apply in different ways depending on whether the default relates to a hearing or another procedural step. In the case of a hearing, the Tribunal may reschedule the hearing within 60 days or cancel the hearing. It may also proceed with the hearing without the defaulting party. If it cancels or proceeds with the hearing, it must allow the defaulting party the opportunity to file a written submission within 60 days (Additional Facility Arbitration Rule 59(4)). For all other procedural steps, the Tribunal fixes a new time limit for the defaulting party to complete that step within 60 days (Additional Facility Arbitration Rule 59(5)).

A default is not deemed an admission of the other party’s assertions on jurisdiction or the merits (Additional Facility Arbitration Rule 59(6)(a)), and the Tribunal must decide on jurisdiction and competence before ruling on the merits of the claim in the Award (Additional Facility Arbitration Rule 59(6)(c)).