Hearings - Additional Facility Arbitration (2022 Rules)
Except as otherwise agreed, the parties’ written submissions are followed by one or more hearings (Additional Facility Arbitration Rule 42(1)).
Hearings can be held in person, by telephone or videoconference. ICSID can also accommodate hybrid hearings, with some participants in person and others connecting remotely by videoconference.
The place of the hearing and whether it will be held in person or remotely is typically discussed at the first session of the Tribunal (Additional Facility Arbitration Rule 38(4)(g)). If the parties do not agree on the place of a hearing after consulting with the Tribunal and the Secretary-General, it shall be held at a place determined by the Tribunal (Additional Facility Arbitration Rule 42(3)).
Types of Hearings
Hearings can deal with various aspects of a case. Some hearings may deal with discrete issues such as a request for provisional measures or a preliminary objection that a claim is manifestly without legal merit. Others deal with jurisdiction, liability and damages in a single hearing. Jurisdiction, liability and damages may also be addressed in separate hearings.
Organizational Matters Before the Hearing
A hearing involves a number of logistical arrangements (see ICSID’s checklist for hearing preparation). ICSID makes these arrangements in consultation with the parties and the Tribunal.
About one month before a hearing, the Tribunal (or its President alone) holds an organizational meeting with the parties. This meeting is usually held by telephone or videoconference. Its purpose is to discuss procedural and logistical issues such as the schedule for the hearing, allocation of time, order of proceedings, issues relating to witnesses, and interpretation requirements. If there are any items on which the parties fail to agree, the Tribunal makes a ruling.
If needed, ICSID can arrange for parties to have access to the hearing room and their respective break-out rooms for set up one or two days before the hearing. Parties generally use this time to pick up security badges, familiarize themselves with the premises, bring hearing documents, set up any equipment, and get acquainted with the on-site technology.
ICSID can arrange for interpretation, taking advantage of the World Bank’s network of more than 300 freelance interpreters worldwide. The interpreters offer an array of services, including simultaneous and consecutive interpretation. Interpretation needs should be communicated to the Secretariat as early as possible to ensure availability.
Tribunals may ask the parties to prepare bundles of the core documents that they plan to refer to during a hearing. A Tribunal can request that bundles be prepared jointly by the parties or that each party prepare its own bundles.
Most bundles are electronic, uploaded to a server or on a USB with joint or separate indices of exhibits and other documents from the record which are hyperlinked to the relevant document.
Procedure During the Hearing
Order of Proceedings
The usual order of proceedings is the following: opening statements, witness examination (if there are witnesses), expert examination (if there are experts), and closing arguments. A Tribunal may put questions to counsel, witnesses and experts (Additional Facility Arbitration Rule 42(4)). The parties may agree that there should be no opening and/or closing statement, or that the closing statement should be replaced by post-hearing briefs. Generally, the moving party presents its case first. If it is a hearing on jurisdiction, the respondent is usually the moving party. If it is a hearing on liability and/or damages, the claimant is usually the moving party.
Public Access to Hearings
If the hearing is open to the public, ICSID provides a video link from the hearing room which is broadcast to a separate room on the premises of the hearing that is open to the public. The parties may also agree to webcast the video link. This gives the public access to hearings while avoiding any disruptions of the hearing. ICSID typically posts a notice on its website about upcoming hearings open to the public.
Where the hearing is open to the public, the Tribunal and the parties will ensure that confidential and protected information is not disclosed to the public.
The rules for examination of witnesses and experts are agreed to by the parties or decided by the Tribunal at the first session or at the organizational meeting held before the hearing. In general, witnesses are called by the party wishing to cross-examine them. The Tribunal may also call a witness to testify (Additional Facility Arbitration Rule 48). If the hearing is held in person, the witness is usually examined in person (Additional Facility Arbitration Rule 48(5)). However, the Tribunal may allow an examination by videoconference if the witness cannot travel to the hearing or if it would be a more cost-effective way to obtain the testimony.
Fact witnesses and experts are required to make a declaration before testifying (Additional Facility Arbitration Rules 48(6) and (8)). Fact witnesses are often not allowed to attend the hearing until after their testimony. Such “sequestration” usually does not apply to experts, although the parties may agree, or the Tribunal may order, otherwise. The Tribunal may also request expert conferencing, meaning that experts testifying about the same topic are heard together. In these instances, a list of questions can be agreed to by the parties ahead of time and put to each expert in turn.
Record of Hearings
The Centre usually keeps audio recordings and written transcripts of hearings (Additional Facility Arbitration Rule 38(4)(j)). It can make arrangements for a court reporter to prepare a verbatim transcript of the entire hearing. Transcripts are generally not used for procedural sessions. Many court reporters offer real-time transcription and same-day delivery of the transcript in electronic format. If there is more than one procedural language, arrangements can be made for transcription in each language. The parties are usually given the opportunity to propose corrections to the transcript after the hearing.
An audio recording is made of the entire hearing or session. Where the proceeding is in more than one language, each language is recorded separately. The audio recording helps identify possible corrections to the transcript.
Procedure after the Hearing
After the hearing, parties may agree on the filing of post-hearing briefs and will be directed to file additional submissions, such as a statement of its costs and a submission on costs (Additional Facility Arbitration Rule 61).