Preliminary Objections - ICSID Convention Arbitration (2022 Rules)
The Tribunal may consider whether a dispute is within ICSID’s jurisdiction and the Tribunal’s competence, on its own initiative or on the objection by a party (Article 41 of the ICSID Convention, Arbitration Rule 43(1)).
If a party wishes to object to jurisdiction, the competence of the Tribunal or the admissibility of a claim, it must notify such preliminary objection to the Tribunal as soon as possible. The Tribunal may deal with the objection as a preliminary question (“bifurcate”) or join the objection to the merits of the dispute.
The time limits for preliminary objections and any request for bifurcation are sometimes discussed at the first session of the Tribunal and incorporated into the procedural calendar in Procedural Order No. 1.
Preliminary Objections with a Request for Bifurcation (Arbitration Rule 44)
Either party may request that the Tribunal bifurcate the preliminary objections and deal with them before the merits of the dispute. The Tribunal first decides the request for bifurcation.
If the Tribunal decides to address the preliminary objection in a separate phase of the proceeding, it:
- suspends the proceeding on the merits
- determines the briefing schedule on the preliminary objection in consultation with the parties
- decides whether to uphold the objection, or to overrule the objection and resume the proceeding on the merits, within 180 days after the last submission (Arbitration Rule 44(3)).
A decision to uphold the objection leads to an Award. A decision to overrule the objection is a "Decision on Jurisdiction” and is accompanied by directions about the proceeding on the merits.
If the Tribunal decides to join the preliminary objection to the merits, it:
- determines the briefing schedule for submissions on the preliminary objection and the merits in consultation with the parties
- renders an Award within 240 days after the last submission in the proceeding.
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Preliminary Objections without a Request for Bifurcation (Arbitration Rule 45)
If there is no request for bifurcation or the request is late, the preliminary objection is joined to the merits (Arbitration Rule 45(1)).
The party filing the preliminary objection must do so at the latest by the date to file the counter-memorial on the merits, or as soon as possible if the objection relates to facts that were unknown at the time of the counter-memorial (Arbitration Rule 45(b)). The counter-memorial must also be filed by that deadline (Arbitration Rule 45(c)).
If the objection relates to an ancillary claim, it must be filed by the next written submission after the ancillary claim (Arbitration Rule 45(b)(ii)).
The Tribunal determines the briefing schedule on the preliminary objection in consultation with the parties and must render the Award within 240 days after the last submission in the proceeding (Arbitration Rule 45(d)). The Award can uphold the objection, leading to an Award on jurisdiction, or overrule the objection and uphold or dismiss the claims on the merits.
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