Rule 3
1. If the disputing parties agree that a sole arbitrator is to be appointed but do not reach agreement on the selection of the arbitrator within 30 days, a sole arbitrator shall, at the request of a disputing party, be appointed by the designated appointing authority.
2. The designated appointing authority shall appoint the sole arbitrator as promptly as possible and in accordance with the qualifications under Article 15.26. In making the appointment, the designated appointing authority shall use the following list-procedure, unless the disputing parties agree that the list-procedure should not be used or unless the designated appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case:
(a) the designated appointing authority shall transmit a list of five candidates for appointment as the sole arbitrator to the disputing parties within
30 days of receipt of the request by a disputing party under paragraph 1;
(b) each disputing party may strike one candidate from the list, and shall rank the remaining candidates in order of preference and transmit such ranking to the designated appointing authority within 14 days of receipt of the list;
(c) the designated appointing authority shall inform the disputing parties of the result of the rankings on the next business day after receipt of the rankings, and shall appoint the candidate with the best ranking. If two or more candidates share the best ranking, the designated appointing authority shall select one of them;
(d) the designated appointing authority shall send the request for acceptance of the appointment to the selected candidate, and request a reply within 10 days of receipt;
(e) if the selected candidate does not accept the appointment, the designated appointing authority shall appoint the next highest-ranked candidate; and
(f) if for any reason the appointment cannot be made according to this list-procedure, the designated appointing authority may exercise its discretion in appointing the sole arbitrator.
Rule 4
For the purposes of Article 15.26, where three arbitrators are to be appointed and there are multiple parties as claimant, unless the disputing parties have agreed to another method of appointment of arbitrators, these multiple parties shall jointly appoint an arbitrator.
Disclosures by and challenge of arbitrators
Rule 5
1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, including a failure to abide by Annex 15-C.
2. A disputing party may challenge the arbitrator appointed by it only for reasons of which it becomes aware after the appointment has been made.
3. In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of their performing their functions, the procedure in respect of the challenge of an arbitrator as provided in Rule 6 shall apply.
Rule 6
1. A disputing party that intends to challenge an arbitrator shall send notice of its challenge within 15 days after it has been notified of the appointment of the challenged arbitrator, or within 15 days after the circumstances mentioned in Rule 5 became known to that disputing party.
2. The notice of challenge shall be communicated to all other disputing parties, to the arbitrator who is challenged and to the other arbitrators. The notice of challenge shall state the reasons for the challenge.
3. When an arbitrator has been challenged by a disputing party, all disputing parties may agree to the challenge. The arbitrator may also, after the challenge, withdraw from their office. In neither case does this imply acceptance of the validity of the grounds for the challenge.
4. If, within 15 days from the date of the notice of challenge, all disputing parties do not agree to the challenge or the challenged arbitrator does not withdraw, the disputing party making the challenge may elect to pursue it. In that case, within 30 days from the date of the notice of challenge, it shall seek a decision on the challenge by the designated appointing authority.
Replacement of an arbitrator
Rule 7
1. Subject to paragraph 2, in any event where an arbitrator has to be replaced during the course of the arbitral proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided for in the Chapter or the Rules that was applicable to the appointment or choice of the arbitrator being replaced. This procedure shall apply even if during the process of appointing the arbitrator to be replaced, a disputing party had failed to exercise its right to appoint or to participate in the appointment.
2. If, at the request of a disputing party, the designated appointing authority determines that, in view of the exceptional circumstances of the case, it would be justified for a disputing party to be deprived of its right to appoint a substitute arbitrator, the designated appointing authority may, after giving an opportunity to the disputing parties and the remaining arbitrators to express their views: (a) appoint the substitute arbitrator in accordance with the qualifications under Article 15.26; or (b) after the closure of the hearings, authorize the other arbitrators to proceed with the arbitration and make any decision or award.
Repetition of hearings in the event of the replacement of an arbitrator
Rule 8
If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform their functions, unless the Tribunal decides otherwise.
Save for intentional wrongdoing, the disputing parties waive, to the fullest extent permitted under the applicable law, any claim against the arbitrators, the designated appointing authority and any person appointed by the Tribunal based on any act or omission in connection with the arbitration.
Section III. Arbitral Proceedings
General provisions
Rule 10
1. Subject to this Chapter and these Rules, the Tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the disputing parties are treated with equality and that at an appropriate stage of the proceedings each disputing party is given a reasonable opportunity of presenting its case. The Tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the disputing parties’ dispute.
2. As soon as practicable after its constitution and after inviting the disputing parties to express their views, the Tribunal shall establish the provisional timetable of the arbitration. The Tribunal may, at any time, after inviting the disputing parties to express their views, extend or abridge any period of time prescribed under these Rules or agreed by the disputing parties.
3. If at an appropriate stage of the proceedings any disputing party so requests, the Tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of a request under this paragraph, the Tribunal shall decide whether to hold these hearings or whether the proceedings shall be conducted on the basis of documents and other materials.
4. All communications to the Tribunal by one disputing party shall be communicated by that disputing party to all other disputing parties. Those communications shall be made at the same time, except as otherwise permitted by the Tribunal if it may do so under the applicable law.
Language
Rule 11
1. Subject to an agreement by the disputing parties, the Tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to written pleadings and, if oral hearings take place, to the language or languages to be used in those hearings.
2. The Tribunal may order that any documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the disputing parties or determined by the Tribunal.
Written Submissions
Rule 12
During the course of the arbitral proceedings, a disputing party may amend or supplement its claim unless the Tribunal considers it inappropriate to allow that amendment or supplement having regard to the delay in making it or prejudice to other disputing parties or any other circumstances. However, a claim may not be amended or supplemented in a manner that the amended or supplemented claim falls outside the jurisdiction of the Tribunal.
Rule 13
1. The disputing parties shall file the following written submissions:
(a) a memorial by the claimant;
(b) a counter-memorial by the respondent Party; and, unless the disputing parties agree otherwise:
(c) a reply by the claimant; and
(d) a rejoinder by the respondent Party.
2. A memorial shall contain a statement of the relevant facts, law and arguments, and the request for relief. A counter-memorial shall contain a statement of the relevant facts, including an admission or denial of facts stated in the memorial, and any necessary additional facts, a statement of law in reply to the memorial, arguments and the request for relief. A reply and rejoinder shall be limited to responding to the previous written submission and addressing any relevant facts that are new or could not have been known prior to filing the reply or rejoinder.
3. A Party may file unscheduled written submissions, observations or supporting documents only after obtaining leave of the Tribunal, unless the filing of those documents is provided for by these Rules. The Tribunal may grant leave upon a timely and reasoned application if it finds those written submissions, observations or supporting documents are necessary in view of all relevant circumstances.
Pleas as to the jurisdiction of the Tribunal
Rule 14
1. The Tribunal shall have the power to rule on its own jurisdiction.
2. A plea that the Tribunal does not have jurisdiction shall be raised no later than in the counter-memorial. A disputing party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The Tribunal may, in either case, admit a later plea if it considers the delay justified.
3. The Tribunal may rule on a plea referred to in paragraph 2 either as a preliminary objection pursuant to Article 15.28, a preliminary question, or in an award on the merits. The Tribunal may continue the arbitral proceedings and make an award, notwithstanding any pending challenge to its jurisdiction before a court.
Evidence
Rule 15
1. Each disputing party shall have the burden of proving the facts relied on to support its claim or defence.
2. Witnesses, including expert witnesses, who are presented by the disputing parties to testify to the Tribunal on any issue of fact or expertise may be any individual, notwithstanding that the individual is a disputing party or in any way related to a disputing party. Unless otherwise directed by the Tribunal, statements by witnesses, including expert witnesses, may be presented in writing and signed by them.
3. At any time during the arbitral proceedings the Tribunal may require the disputing parties to produce documents, exhibits or other evidence within a period of time that the Tribunal shall determine.
4. The Tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.
Hearings
Rule 16
1. In the event of an oral hearing, the Tribunal shall give the disputing parties adequate advance notice of the date, time and place of the hearing.
2. Witnesses, including expert witnesses, may be heard under the conditions and examined in the manner set by the Tribunal.
3. The Tribunal may require the retirement of any witness or witnesses, including expert witnesses, during the testimony of such other witnesses, except that a witness, including an expert witness, who is a disputing party shall not, in principle, be asked to retire.
4. The Tribunal may direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference).
Experts appointed by the Tribunal
Rule 17
1. Pursuant to Article 15.33, the Tribunal may appoint one or more independent experts to report to it, in writing, on specific issues to be determined by the Tribunal. A copy of the expert’s terms of reference, established by the Tribunal, shall be communicated to the disputing parties.
2. The expert shall, in principle before accepting appointment, submit to the Tribunal and to the disputing parties a description of their qualifications and a statement of their impartiality and independence. Within the time ordered by the Tribunal, the disputing parties shall inform the Tribunal whether they have any objections as to the expert’s qualifications, impartiality or independence. The Tribunal shall decide promptly whether to accept any of those objections. After an expert’s appointment, a disputing party may object to the expert’s qualifications, impartiality or independence only if the objection is for reasons of which the disputing party becomes aware after the appointment has been made. The Tribunal shall decide promptly what, if any, action to take.
3. The disputing parties shall give the expert any relevant information or produce for their inspection any relevant documents or goods that they may require of them. Any dispute between a disputing party and the expert as to the relevance of the required information or production shall be referred to the Tribunal for decision.
4. Upon receipt of the expert’s report, the Tribunal shall communicate a copy of the report to the disputing parties, which shall be given the opportunity to express, in writing, their opinion on the report. A disputing party shall be entitled to examine any document on which the expert has relied in their report.
5. At the request of a disputing party, the expert, after delivery of the report, may be heard at a hearing where the disputing parties shall have the opportunity to be present and to interrogate the expert. At this hearing, a disputing party may present expert witnesses in order to testify on the points at issue. The provisions of Rule 16 shall be applicable to those proceedings.
Default
Rule 18
1. If, within the period of time fixed by the Tribunal, without showing sufficient cause:
(a) The claimant has failed to advance its claim, the Tribunal shall issue an order for the termination of the arbitral proceedings, unless there are remaining matters that may need to be decided and the Tribunal considers it appropriate to do so;
(b) The respondent Party has failed to submit a counter-memorial or rejoinder, the Tribunal shall order that the proceedings continue, without treating
such failure in itself as an admission of the claimant’s allegations;
2. If a disputing party, duly notified, fails to appear at a hearing, without showing sufficient cause for the failure, the Tribunal may proceed with the arbitration.
3. If a disputing party, duly invited by the Tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time, without showing sufficient cause for the failure, the Tribunal may make the award on the evidence before it.
Closure of hearings
Rule 19
1. The Tribunal may inquire of the disputing parties if they have any further proof to offer or witnesses to be heard or submissions to make and, if there are none, it may declare the hearings closed.
2. The Tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own initiative or upon application of a disputing party, to reopen the hearings at any time before the award is made.
Waiver of right to object
Rule 20
A failure by a disputing party to object promptly to any non-compliance with these Rules or with any requirement of Sections D and E of this Chapter shall be deemed to be a waiver of the right of that disputing party to make the objection, unless that disputing party can show that, under the circumstances, its failure to object was justified.
Section IV. The Award
Decisions
Rule 21
1. When there is more than one arbitrator, any award or other decision of the Tribunal shall be made by a majority of the arbitrators.
2. In the case of questions of procedure, when there is no majority or when the Tribunal so authorizes, the presiding arbitrator may decide alone, subject to revision, if any, by the Tribunal.
Form and effect of the award
Rule 22
1. The Tribunal may make separate awards on different issues at different times.
2. All awards shall be made in writing and shall be final and binding on the disputing parties. The disputing parties shall carry out all awards without delay.
3. The Tribunal shall state the reasons upon which the award is based, unless the disputing parties have agreed that no reasons are to be given.
4. An award shall be signed by the arbitrators and it shall contain the date on which the award was made and indicate the seat of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature.
5. Copies of the award signed by the arbitrators shall be communicated to the disputing parties by the Tribunal.
Settlement or other grounds for termination
Rule 23
1. If, before the award is made, the disputing parties agree on a settlement of the dispute, the Tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by the disputing parties and accepted by the Tribunal, record the settlement in the form of an arbitral award on agreed terms. The Tribunal is not obliged to give reasons for that arbitral award.
2. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in paragraph 1, the Tribunal shall inform the disputing parties of its intention to issue an order for the termination of the proceedings. The Tribunal shall have the power to issue that order unless there are remaining matters that may need to be decided and the Tribunal considers it appropriate to do so.
3. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the Tribunal to the disputing parties. Where an arbitral award on agreed terms is made, the provisions of Rule 22, paragraphs 2 and 4, shall apply.
Interpretation of the award
Rule 24
1. Within 30 days after the receipt of the award, a disputing party, with notice to the other disputing parties, may request that the Tribunal give an interpretation of the award.
2. The interpretation shall be given in writing within 45 days after the receipt of the request. The interpretation shall form part of the award and the provisions of Rule 22, paragraphs 2 to 5, shall apply.
Correction of the award
Rule 25
1. Within 30 days after the receipt of the award, a disputing party, with notice to the other disputing parties, may request the Tribunal to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature. If the Tribunal considers that the request is justified, it shall make the correction within 45 days of receipt of the request.
2. The Tribunal may within 30 days after the communication of the award make those corrections on its own initiative.
3. Those corrections shall be in writing and shall form part of the award. The provisions of Rule 22, paragraphs 2 to 5, shall apply.
Additional award
Rule 26
1. Within 30 days after the receipt of the termination order or the award, a disputing party, with notice to the other disputing parties, may request the Tribunal to make an award or an additional award as to claims presented in the arbitral proceedings but not decided by the Tribunal.
2. If the Tribunal considers the request for an award or additional award to be justified, it shall render or complete its award within 60 days after the receipt of the request. The Tribunal may extend, if necessary, the period of time within which it shall make the award.
3. When that award or additional award is made, the provisions of Rule 22, paragraphs 2 to 5, shall apply.
Definition of costs
Rule 27
1. Pursuant to Article 15.35.3, the Tribunal shall fix the costs of arbitration in the final award and, if it deems appropriate, in another decision.
2. The term “costs” includes only:
(a) the fees of the Tribunal to be stated separately as to each arbitrator and to be fixed pursuant to Article 15.26.5;
(b) the reasonable travel and other expenses incurred by the arbitrators;
(c) the reasonable costs of expert advice and of other assistance required by the Tribunal;
(d) the reasonable travel and other expenses of witnesses to the extent those expenses are approved by the Tribunal;
(e) the legal and other costs incurred by the disputing parties in relation to the arbitration to the extent that the Tribunal determines that the amount of those costs is reasonable; and
(f) any fees and expenses of the designated appointing authority.
3. In relation to interpretation, correction or completion of any award under Rules 24 to 26, the Tribunal may charge the costs referred to in paragraphs 2(b) to (f), but no additional fees.
Annex 15-C. Arbitrator Code of Conduct for Investor-State Dispute Settlement (Code of Conduct)
Definitions
1. For the purposes of this Code of Conduct:
arbitrator means a member of a Tribunal constituted pursuant to Article 15.26;
assistant means a person who, under the terms of appointment of an arbitrator, conducts research or provides support for the arbitrator;
candidate means a person who is under consideration for selection as an arbitrator to settle an investment dispute under this Chapter;
expert means a person appointed pursuant to Article 15.33 or applicable arbitration rules;
family member means the spouse or partner of an arbitrator or candidate; the parent, child, grandparent, grandchild, sister, brother, aunt, uncle, niece or nephew of the arbitrator or candidate or spouse or partner of the arbitrator or candidate (including whole and half blood relatives and step relatives), or the spouse or partner of that person; or a resident of the arbitrator’s or candidate’s household whom the arbitrator or candidate treats as a member of their family; and
staff, in respect of an arbitrator, means individuals under the direction and control of the arbitrator other than assistants.
Responsibilities to the Dispute Settlement Process
2. Each candidate, arbitrator, and former arbitrator shall avoid impropriety and the appearance of impropriety, and shall observe high standards of conduct so that the integrity and impartiality of the dispute settlement process is preserved.
Governing Principles
3. Each arbitrator shall be independent and impartial, and shall avoid direct or indirect conflicts of interest.
4. Each arbitrator and former arbitrator shall respect the confidentiality of Tribunal proceedings.
5. Each candidate or arbitrator shall disclose the existence of any interest, relationship, or matter that is likely to affect the candidate’s or arbitrator’s independence or impartiality, or that might reasonably create an appearance of impropriety or an apprehension of bias. An appearance of impropriety or an apprehension of bias is created when a reasonable person, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, would conclude that a candidate’s or arbitrator’s ability to carry out the duties with integrity, impartiality, and competence is impaired.
6. Upon appointment, an arbitrator shall refrain, for the duration of the proceeding, from acting as counsel or party-appointed expert or witness in any pending or new investment dispute under this Agreement or any other international investment treaty.
7. This Code of Conduct shall be interpreted in a manner consistent with other internationally recognized standards or guidelines regarding direct or indirect conflicts of interest, such as the International Bar Association IBA Guidelines on Conflicts of Interest in International Arbitration.