Oral Procedure - Additional Facility Arbitration (2006 Rules)
Except as otherwise agreed, the oral procedure follows parties’ written submissions (Article 39 of the Arbitration (Additional Facility) Rules). The oral procedure consists of hearings and procedural sessions. Most hearings are held in person, while procedural sessions (such as the first session of the Tribunal) are often held by telephone or videoconference.
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 preliminary objections 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
About one month before a hearing, the Tribunal (or its President alone) holds an organizational meeting with the parties. The meeting is usually held by telephone conference. Its purpose is to discuss procedural and logistical issues such as the schedule of 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 a 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.
In addition to, or instead of, hard copy hearing bundles, a Tribunal may request the parties to submit a CD or 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 (Article 42 of the Arbitration (Additional Facility) Rules). 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 the moving party.
Public Access to Hearings
If the hearing is open to the public, ICSID provides a videolink 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 videolink. This gives the public access to hearings while avoiding any disruptions of the hearing.
The rules for the 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 (Article 42 of the Arbitration (Additional Facility) Rules). If a witness is unable to travel to the hearing site, the witness may be granted leave by the Tribunal to testify by videoconference.
Fact witnesses and experts are usually asked to make a declaration similar to that in ICSID Convention arbitration cases before testifying (ICSID Arbitration Rules 35(2) and (3)). 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.
Records of Hearings
The Centre usually keeps audio recordings and written transcripts of hearings (Article 28 of the Arbitration (Additional Facility) Rules. 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 realtime transcription (e.g., LiveNote) and same-day delivery of the transcript in electronic format. If there is more than one procedural language, arrangements can be made for transcription of 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 there is more than one language of the procedure, 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 may be directed to file additional submissions, such as a submission on costs.