First Session – Additional Facility Arbitration (2022 Rules)
The first session allows the Tribunal to set a schedule and specific rules for each case in a first procedural order. The Tribunal will ascertain the parties’ agreements or separate views on procedural questions such as the applicable arbitration rules, language(s) to be used, place of proceedings, and the procedural calendar.
The first session should be held within 60 days after the constitution of the Tribunal, unless the parties agree otherwise (Additional Facility Arbitration Rule 38(3)). As soon as each arbitrator is appointed, ICSID ascertains their availability in the next 60 days to ensure a timely first session. Once the Tribunal is constituted, the Secretary of the Tribunal contacts the parties with proposed date(s) and the method of holding the first session (in person or remotely).
If the parties and the Tribunal (or the President of the Tribunal alone) cannot meet within the 60-day period and cannot agree on an extension of this time limit, the Tribunal will proceed without the parties but will take their written submissions into account (Additional Facility Arbitration Rule 38(3)).
Organizing the First Session
A first session can be held in person, by telephone or by videoconference.
Most first sessions are held by videoconference to reduce costs and travel time. This decision is taken by the Tribunal and the parties considering factors such as the number of outstanding issues.
If the Tribunal and the parties decide to hold an in-person first session, it can be held at any location, provided that the Tribunal approves such venue and there are suitable facilities. The Tribunal often proposes a venue for the parties’ consideration. If there is no agreement, the Tribunal will determine where to hold the session (Additional Facility Arbitration Rule 42(3)).
Issues to be Discussed
The first session addresses any matters of procedure that the parties and the Tribunal wish to establish at the outset of the proceeding.
The Secretary of the Tribunal circulates a draft procedural order, approved by the Tribunal, to the parties for their comments well in advance of the first session. This acts as an agenda for the first session. The draft procedural order has been developed by the Centre taking into account usual procedural items, such as the procedural calendar (Additional Facility Arbitration Rule 38(3)). It provides guidance to the parties in reaching agreements on specific issues.
The first session may also include oral submissions on pending requests such as a party’s request for bifurcation of the proceeding, a request for provisional measures, or a request to dispose of the matter because the claim is manifestly without legal merit.
The agreements reached by the parties and the procedural decisions taken by the Tribunal are included in the procedural order issued after the first session. It is signed by the President of the Tribunal and circulated to the parties by the Secretary of the Tribunal within 15 days after the first session (Additional Facility Arbitration Rule 38(5)).