REVIEWER FOR CLASS 9 -- “MODES FOR

SETTLEMENT OF INVESTMENT DISPUTES”

UNDERSTANDING THE BARCELONA TRACTION CASE

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%20diplomatic,the%20United%20States%20of%20America.
January 9, 2020Mathilde Minetspace lawPublic International Law

For this new Public International Law article, let us study the Barcelona Traction case. The past two
hundred years have seen the transformation of public international law from a rule-based extrusion
of diplomacy into a fully-fledged legal system. Some decisions have contributed to the development
of international law into an integrated whole, whilst also creating specialized sub-systems that stand
alone as units of analysis. The significance of these decisions is not taken for granted, with
contributors critically interrogating the cases to determine if their reputation is deserved. The
Barcelona Traction case is one of the most important, and needed to be analyzed in order to
understand Public International Law.

Barcelona Traction, Light and Power Company was a Canadian company, created in 1911 and that
operated and provided light and power utilities in Spain. Its headquarters were in Toronto, Canada, it
operated in Spain but was owned mostly by Belgian holding companies. The company Barcelona
Traction managed to survive the Spanish Civil War without many damages and was still quite
profitable. Because of its foreign investors, the company issued several series of bonds, principally
in sterling. However, in the idea of Spain’s financial recovery after the civil war, the government
banned the transfer of foreign currency from Spain.

As a result of a financial maneuver led by Juan March in order to take control over the society, the
Court of Spain declared Barcelona Traction Company bankrupt on February 12 of 1948. Belgium, in
order to protect its nationals and their interests, sought reparation for damage claimed to have been
caused to Belgians nationals who were shareholders in the company. A first round of diplomatic
negotiations started involving a few governments, such as Belgium, Canada, the United Kingdom,
and the United States of America. As it was a society ruled by Canadian law, Canada proposed to
settle the matter with arbitration which the Spanish government refused but agreed to form a
committee of experts to study the dispute. Because the diplomatic negotiations were unsuccessful,
the Belgian government filed a first request before the International Court of Justice on September
23, 1958, which was in 1961 interrupted as new negotiations took place. Understanding that these
negotiations would go nowhere, Belgium filed a new request before the International Court of Justice
on June 19, 1962.

Regarding the jurisdiction of the Court, Belgium and Spain are both parties to the Statute of the
Court meaning that the Court is qualified and has jurisdiction to hear and to resolve the dispute, in
which Belgium is using its diplomatic protection for the benefit of its foreign nationals and supports
that Spain broke the international law rules concerning the way foreigners are treated. In 1963,
Spain raised four preliminary objections to the Belgian complaint. In a judgement of July 24, 1964,
the Court rejected the first two preliminary objections and joined the second two together. In the
decision of February 5, 1970, the main question revolved around the thematic of diplomatic
protection: does Belgium have the right to use its diplomatic protection for the Belgian shareholders
of a Canadian company and therefore stand before the International Court of Justice or not?

In this case, the Court made a distinction between two separate entities: the company and the
shareholder, which are ruled by different law. The company was Canadian and the shareholders
were Belgians. The Court emphasized the fact that the harmful acts attributable to Spain aimed at
the company’s rights and not at the shareholders’ own rights. A clear distinction has been made
between a violation of a company’s right and the mere prejudice towards the shareholders’ interests.
Thus, in its judgement of 1970, the International Court of Justice rejected the request of the Belgian
government and declared Belgium as not qualified to stand before the Court as it did not have jus
standi, or recognized rights, to exercise diplomatic protection for its nationals. The Nationality State
of shareholders cannot sue diplomatic protection. Moreover, the Court stated that Belgium couldn’t
sue Spain by itself as the Barcelona Company was ruled by Canadian law. There was no legal
interest in the matter for Belgium to bring a claim. What also emerges from this judgment is the
question of the obligation to treat foreign nationals in a certain way. Belgium thought that it could use
this mean to support its claim.
One of the main benefit of this judgement is the recognition of the concept “ erga omnes”. It’s a Latin
locution which means “towards all” or “towards everyone”. For the legal domain, it means that a judicial
decision is binding towards everyone, rights and obligations are owed towards all. These norms are
imperative. Maurizio Ragazzi explained in his book, The Concept of International Obligations Erga
Omnes, that “In the Barcelona Traction case, the International Court of Justice identified a category of
international obligations called erga omnes, namely obligations owed by states to the international community
as a whole, intended to protect and promote the basic values and common interests of all”.
The judgement of 1970 is a fundamental one in the way that it expressed this notion of  erga
omnes that is now considered as one of the pillar of the international law. It expanded this notion in
the international community. The notion of erga omnes is associated with the notion of jus
cogens which corresponds to a fundamental principle of international, accepted by the international
community, considered as universal and superior to which no derogation can be granted. The notion
of jus cogens was established by the Vienna Convention on the Law of Treaties of 1969.
The case Barcelona Traction, Light and Power Limited Company is of the greatest importance and
value in the field of International Law, and more particularly for diplomatic protection and the
promotion of the concept of erga omnes norms and rights. Jean Charpentier explained in his analysis
of the case, the relations between the states are rigid which does not facilitate the flexibility at the
base of multinational companies. He then explained that the only solution would be to ask the State
to which they invest a right of direct access to ad hoc arbitral bodies.

OVERVIEW PROCESS:

1. ICSID offers rules to resolve international investment disputes (IID) between investors
and states.
 2. The 2 Main Instruments are: (a) the ICSID Convention and (b) the ICSID Additional
Facility.
3. The ICSID Center handles arbitration under ICSID rules. It also handles arbitration under
UNCITRAL Arbitration rules, and ad hoc investor-State and State-State cases. The Center is also
available for mediation of investment disputes and other ADR mechanisms.
4. ICSID does not itself make procedural rulings or decide dispute. Independent
conciliation commission and arbitral tribunals constituted in each case are vested with the
power to rule on procedural issues and resolve parties’ dispute.

Features of the ICSID Convention

1. ICSID Convention is a treaty that provides Member States (MS) a procedure for
conciliation and arbitration of investment disputes between MS and investors that
qualify as nationals of other MS.
2. Local courts do not intervene in ICSID process, which is exclusive remedy; its awards are
final and binding even if Arts. 49-52 provide post-award remedies.
3. All MS recognize monetary awards of ICSSID convention, and no MS can give diplomatic
protection to its nationals who have consented to ICSID arbitration.
4. Essential Jurisdictional conditions for access to arbitration or conciliation under ICSID
Convention (Art. 25):
a. The dispute must be between MS and an individual that qualifies as a national of
another ICSID MS;
b. The dispute must be a legal dispute arising directly out of an investment;
c. The disputing parties must have consented in writing to the submission of their
dispute to ICSID arbitration or conciliation.
5. A case is registered and a Conciliation Commission or Arbitral Tribunal to ICSID is
constituted to resolve the dispute.

Features of ICSID Additional Facility

1. ICSID AF applies to:

a. Dispute arising directly out of an investment, where either the State party or the
home State of the foreign national is not an ICSID MS;
b. Dispute that do not arise directly out of an investment, where one party is an
ICSID MS or a national of a Contracting state;
c. Fact-finding proceedings.
2. AF cases do not benefit from special features of the ICSID Convention, like the
recognition and enforcement of the award.

UNCITRAL Cases and Other Dispute Settlement Activities of the Center

1. The Center also administers cases under other rules, like UNCITRAL rules
2. The Center’s services are available for other ad hoc investor-State and State-State cases
ICSID CONVENTION,
REGULATIONS
AND RULES

INTRO:
The International Centre for Settlement of Investment Disputes (ICSID or the Centre) is
established by the Convention on the Settlement of Investment Disputes between States and
Nationals of Other States (the ICSID Convention or the Convention). The Convention was
formulated by the Executive Directors of the International Bank for Reconstruction and
Development (the World Bank) and took effect on October 14, 1966, when it had been ratified
by 20 countries. As at April 10, 2006, 143 countries have ratified the Convention to become
Contracting States.

In accordance with the provisions of the Convention, ICSID provides facilities for conciliation
and arbitration of investment disputes between Contracting States and nationals of other
Contracting States. Below is an outline of the ICSID Rules:
 Arts. 1-3 established the International Centre for Settlement of Investment Disputes
(hereinafter called the Centre) to provide facilities for conciliation and arbitration of investment
disputes between ContractingStates and nationals of other Contracting States.
The seat of the Centre shall be at the principal office of the International Bank for
Reconstruction and Development (hereinafter called the Bank). The Centre has an
Administrative Council and a Secretariat and shall maintain a Panel of Conciliators and a Panel
of Arbitrators.

Arts. 4-8 established the Administrative Council composed of one representative of each
Contracting State. The Administrative Council, among others, adopts the rules of procedure for
conciliation and arbitration proceedings (hereinafter called the Conciliation Rules and the
Arbitration Rules);

Arts. 9-11 estabishes the Secretariat that consists of a Secretary-General and one or
more Deputy Secretaries-General and staff. The Secretary-General and any Deputy Secretary-
General shall be elected by the Administrative Council by a majority of two-thirds of its
members upon the nomination of the Chairman for a term of service not exceeding six years
and shall be eligible for re-election.

ARTS. 12-16 establishes the Panel of Conciliators and the Panel of Arbitrators that shall
each consist of qualified person.1
Arts 18 - 24 provide for the status, immunities and privileges of the Center.

The Centre shall have full international legal personality and shall enjoy in the territories
of each Contracting State immunities and privileges from all legal process, except when the
Centre waives this immunity.

1
(1) Each Contracting State may designate to each Panel four persons who may but need not be its nationals.
(2) The Chairman may designate ten persons to each Panel. Thepersons so designated to a Panel shall each have a different
nationality.
Article 14
(1) Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of
law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law
shall be of particular importance in the case of persons on the Panel of Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels, shall in addition pay due regard to the importance of assuring
representation on the Panels of the principal legal systems of the world and of the main forms of economic activity.
Article 15
(1) Panel members shall serve for renewable periods of six years.
(2) In case of death or resignation of a member of a Panel, the authority which designated the member shall have the right to
designate another person to serve for the remainder of that member’s term.
(3) Panel members shall continue in office until their successors
have been designated.
Article 16
(1) A person may serve on both Panels.
(2) If a person shall have been designated to serve on the same Panel by more than one Contracting State, or by one or more
Contracting States and the Chairman, he shall be deemed to have been designated by the authority which first designated him or,
if one such authority is the State of which he is a national, by that State.
(3) All designations shall be notified to the Secretary-General and shall take effect from the date on which the notification is
received.
 Arts 25-27 provides for the jurisdiction of the Center, which provides –

Article 25
(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of
an investment, between a Contracting State (or any constituent subdivision or agency of
a Contracting State designated to the Centre by that State) and a national of another
Contracting State, which the parties to the dispute consent in writing to submit to the
Centre. When the parties have given their consent, no party may with- draw its consent
unilaterally.

(2) “National of another Contracting State” means:

(a) any natural person who had the nationality of a Contracting State other than the State
party to the dispute on the date on which the parties consented to submit such dispute
to conciliation or arbitration as well as on the date on which the request was registered
pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not
include any person who on either date also had the nationality of the Contracting State
party to the dispute; and

(b) any juridical person which had the nationality of a Contracting State other than the
State party to the dispute on the date on which the parties consented to submit such
dispute to conciliation or arbitration and any juridical person which had the nationality
of the Contracting State party to the dispute on that date and which, because of foreign
control, the parties have agreed should be treated as a national of another Contracting
State for the purposes of this Convention.

(3) Consent by a constituent subdivision or agency of a Contracting State shall require

the approval of that State unless that State notifies the Centre that no such approval is
required.

(4) Any Contracting State may, at the time of ratification, acceptance or approval of this
Convention or at any time thereafter, notify the Centre of the class or classes of disputes
which it would or would not consider submitting to the jurisdiction of the Centre. The
Secretary-General shall forthwith transmit such notification to all Contracting States.
Such notification shall not constitute the consent required by paragraph (1).

Article 26
Consent of the parties to arbitration under this Convention shall, unless otherwise stated,
be deemed consent to such arbitration to the exclusion of any other remedy. A
Contracting State may require the exhaustion of local administrative or judicial remedies
as a condition of its consent to arbitration under this Convention.

Article 27
(1) No Contracting State shall give diplomatic protection, or bring an international
claim, in respect of a dispute which one of its nationals and another Contracting State
shall have consented to submit or shall have submitted to arbitration under this
Convention, unless such other Contracting State shall have failed to abide by and comply
with
the award rendered in such dispute.
 (2) Diplomatic protection, for the purposes of paragraph (1), shall not include informal
diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.

Arts. 28-35 establishes all rules on CONCILIATION.

Any Contracting State or any national of a Contracting State wishing to institute

conciliation proceedings shall address a request in writing to the Secretary-General who shall
send a copy of the request to the other party. The request shall contain information concerning
the issues in dispute, the identity of the parties and their consent to conciliation

The Secretary-General shall register the request unless he finds, on the basis of the
information contained in the request, that the dispute is manifestly outside the jurisdiction of
the Centre. He shall forthwith notify the parties of registration or refusal to register.

As for the Conciliation Proceedings, the Commission shall be the judge of its own
competence. Any objection by a party to the dispute that that dispute is not within the
jurisdiction of the Centre, or for other reasons is not within the competence of the Commission,
shall be considered by the Commission which shall determine whether to deal with it as a
preliminary question or to join it to the merits of the dispute.

It shall be the duty of the Commission to clarify the issues in dispute between the
parties and to endeavour to bring about agreement between them upon mutually acceptable
terms.

Arts. 36-47 establishes the ‘Request for Arbitration’, ‘Constitution of the Tribunal’, and.
The ‘Powers and Functions of the Tribunal’.

Any Contracting State or any national of a Contracting State wishing to institute

arbitration proceedings shall address a request to that effect in writing to the Secretary-General
who shall send a copy of the request to the other party. The request shall contain information
concerning the issues in dispute, the identity of the parties and their consent to arbitration in
accordance with the rules of procedure for the institution of conciliation and arbitration
proceedings.

The Secretary-General shall register the request unless he finds, on the basis of the
information contained in the request, that the dispute is manifestly outside the jurisdiction of
the Centre. He shall forthwith notify the parties of registration or refusal to register.

The Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as soon as
possible after registration of a request (Article 37). The Tribunal shall consist of a sole arbitrator
or any uneven number of arbitrators appointed as the parties shall agree. Where the parties do
not agree upon the number of arbitrators and the method of their appointment, the Tribunal
shall consist of three arbitrators, one arbitrator appointed by each party and the third, who
shall be the president of the Tribunal, appointed by agreement of the parties.

Article 41 provides the powers of the Tribunal. The Tribunal shall be the judge of its
own competence. Any objection by a party to the dispute that that dispute is not within the
jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal,
shall be considered by the Tribunal which shall determine whether to deal with it as a
preliminary question or to join it to the merits of the dispute.

The Tribunal has discretion to bifurcate jurisdictional issues (Art. 41(2) of

the ICSID Convention. The Tribunal MAY consider factors as: (a) merit of
the objection, (b) whether bifurcation would materially reduce time and
cost, (c) whether jurisdiction and merits are so intertwined as to make
bifurcation impractical

Tribunal has discretion to decide whether to suspend proceedings on the

merits when it bifurcates (Art. 41(3).

Bifurcation refers to the separation of jurisdictional issues from the merits

and is a separate jurisdictional phase to consider the objections on both
jurisdictional and admissibility raised by respondent..

Article 42 allows The Tribunal shall decide a dispute in accordance with such rules of law
as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the
law of the Contracting State party to the dispute (including its rules on the conflict of laws) and
such rules of international law as may be applicable.
The Tribunal may not bring in a finding of non liquet on the ground of silence or
obscurity of the law. The provisions of paragraphs (1) and (2) shall not prejudice the power of
the Tribunal to decide a dispute ex aequo et bono if the parties so agree.

Article 47 allows the Tribunal to recommend any provisional measures which should be
taken to preserve the respective rights of either party.

III. PROVISIONAL MEASURES – ICSID ARBITRATION CONVENTION

1. A Party may seek provisional measures at any time after proceedings have been
instituted.
2. Except as the parties agree, the Tribunal may recommend any provisional measures that
may be necessary to preserve the parties’ rights during the proceeding (Art. 47 of the
ICSID Convention, Arbitration Rule 39)
3. Examples: release of confidential information, obtaining evidence, staying execution of
administrative decisions, preventing prejudicial interference
IV. An Outline of Procedure in an Investment Treaty Arbitration – Strategy and Choices
By Barton Legum and Anna Crevon

1. Investment arbitration places great emphasis on written submissions that present

evidence.
An investment treaty procedure is divided into 3 sequential phases: (1) preparation of the case,
(2) written and oral submissions, (3) post-hearing activity.

2. Case preparation:
- Includes period from inception of dispute to the first procedural session with the
arbitral tribunal; the most important phase.
- Phase where counsels are selected, initial analysis conducted, arbitrators selected,
procedure for arbitration decided

2.1. Initial assessment --

- Documents are collected, witnesses interviewed, chronology of events prepared

- Analyze facts in terms of substantive and jurisdictional standards of the applicable
investment treaty. Investment protection provisions vary.
- FOR THE CLAIMING STATE: Frame the claim under the treaty
- Draft short notice of dispute to the respondent State, which is distinct from reques for
arbitration. (a) identify claimant’s investment in host state, (b) the disputed measures or
actions adopted by the State, (c) the relevant investment treaty violated by the
measure.
- “Cooling off” period triggered by notice of dispute where parties can resolve dispute
amicably; period is determined in the treaty (3-6 months)
- “Cooling off” period is a precondition for submitting a dispute to arbitration.
- FOR THE RESPONDENT STATE: Preparation period commences from receipt of notice by
relevant Ministry. Appoint the second arbitrator

2.2. Selection of Arbitration Rules –

- If the investment treaty allow it, most common choices of arbitration rules are (a) ICSID
Convention, (b) UNCIT4RAL rules, (c) Stockholm Chamber of Commerce (SCC), (d)
International Chamber of Commerce (ICC) rules.
- ICSID rules apply when both the host State and the State of the investor’s nationality are
parties to the ICSID Convention. If only one of the relevant States is a party to the ICSID
Convention, the ICSID Additional Facility Rules may be available.
- There are differences in cost between opting to avail of ICSID and UNCITRAL
- JURISDICTION: For an arbitration to proceed, it must satisfy not only the jurisdictional
requirements of the investment treaty but also the additional requirements of the ICSID
Convention under Art. 25 above. Frequently contested is the definition of “investment”.
 - By contrast, the SCC Rules and the UNCITRAL Rules impose no additional requirements
for jurisdiction, with the result that a tribunal will have jurisdiction over any claim
meeting the requirements of the investment treaty.
- ENFORCEMENT AND REVIEW MECHANISMS: awards are not subject to appeal, but a
party to the award may file application for annulment that will be decided by an “ad hoc
committee” appointed by the Chairman of the Administrative Council of ICSID
- SSC and UNCITRAL awards are subject to annulment or set-aside proceedings in the
national court of the place of arbitration
- TRANSPARENCY: ICSID vs SSC vs UNCITRAL Rules
ICSID Rules SSC Rules UNCITRAL Rules
-provide public docket -provide a -same presumption of SSC Rules
describing the cases presumption -but in 2013 amendment to the 2010
registered and that hearings UNCITRAL Rules, its Rules on
significant case will be private Transparency in Treaty-Based Investor-
development and do not State Arbitration will apply by default to
-publication of excepts address other investor-State arbitrations initiated
of reasoning of ICSID questions of under investment protection treaties
awards; and transparency (concluded on or after 04/01/2014)
-set a presumption that -parties’ written submissions and other
amicus curiae key documents in the arbitration record
submissions will be will be made available to the general
accepted and that public, the hearings shall be public, and
hearings will be open the tribunal may allow amicus curiae
to the public submissions

2.3 Request for Arbitration and Response Thereto

 Request for Arbitration – the document that commences the arbitration proceedings
under ICSID and SCC Rules
o provides basic info about the claims, the parties, and the basis for arbitral
jurisdiction
 Notice of Arbitration – name for Request for Arbitration under UNCITRAL Rules
ICSID Rules: SCC Rules: Arbitration UNCITRAL Rules: Arbitration
Arbitration
Commence - Begins on the date when begin as soon as notice of
only when the request for arbitration arbitration is received by the
Secretary- is received by the SCC respondent
General of
ICSID registers
the request

- Respondent State may file an

answer to the request for
arbitration within a time period
 fixed by the SCC Secretariat
Provides basic info and does not
contain complete statement of
defenses to be asserted
subsequently in the arbitration
Request allows arbitrators to Respondent State may file a
st
prepare their 1 session with the response to the notice of
parties and to delineate the key arbitration within 30 days of
issues in dispute (plus the the receipt of such notice
respondent’s jurisdictional
objections
2.4 Selection of the Arbitrators
Investment Treaty Arbitration
 Arbitral tribunal is composed of 3 arbitrators
 Appointment is either specified in applicable investment treaty or made by reference to
arbitration rules selected by the claimant
 Typically, Claimant names the 1st then respondent names the 2nd arbitrator, and the
Presiding arbitrator is appointed either upon agreement of the 2 parties or the 2
arbitrators
o In SCC, presiding arbitrator is appointed by Board of Directors (BOD) of the SCC
Arbitration Institute (unless the parties agree on a different procedure for
appointment)
o If tribunal is not constituted within a stated period of time, then the ICSID
Secretariat, the BOD of the SCC Arbitration Institute, or another designated
authority may appoint the remaining arbitrator/s

Restrictions between ICSID vs SCC Rules

ICSID SCC UNCITRAL
In 3-person tribunal, a In 3-person tribunal, the No nationality
national of the State party presiding arbitrator restrictions
to the dispute or of the cannot have the
State whose national is nationality of any party
party to the dispute may to the dispute unless
not be appointed as otherwise agreed by the
arbitrator without the parties or deemed
 agreement of the other appropriate by the SCC
party

2.5 First Session with the Tribunal

 1st Session takes place 6-12 weeks after the tribunal has been constituted (after the date
when all the arbitrators confirm their appointment)
 ICSID RULES: 1st session must be held within 60 days after constitution of the tribunal;
where the procedure for the arbitration is organized
 Counsel for 2 parties attempt to agree on as many aspects of procedure as possible
before 1st session (disputed items only @ 1st session discussion)2
 After 1st session, tribunal enters a procedural order (minutes of session) that sets the
procedure for the case, including the procedural schedule and deadlines. Next phase is
written submissions

Principal Procedural Issues that Arise at the 1st Session

1. Language of the Proceedings
2. Place of Arbitration
3. Confidentiality of Information relating to the arbitration
4. Scheduling of written submissions
5. Collection of documentary evidence; and
6. How to organize testimonial evidence, both before and the evidentiary hearing

3. Written and Oral Submissions

Written Submissions first presenting arguments then  Scheduled Hearing to allow the
parties to present their oral arguments and examine the experts and witnesses

3.1 Written Submissions

The written submissions in investment treaty arbitrations take the form of 4 substantial
pleadings:
i. The memorial, or statement of claim *required
ii. The counter-memorial, or statement of defense *required
iii. The reply
iv. The rejoinder (respondent fills this prior to the conduct of hearing)
*Note: arbitral rules require only the 1st two of these pleadings to be submitted
2
Session can be done on video or telephone conference for convenience, budget, and
saving time
 Further disagreements between parties on the conduct of the procedure and/or the
procedural schedule are addressed thru exchanges of correspondence
 Arbitration is more flexible than litigation in state courts, making it possible to design a
procedure that takes account of the specific needs of the case at hand (requiring that
each party has a clear idea of what those needs are)
*(75-150 pages, accompanied by multiple volumes containing witness statements, expert
reports, and documentary evidence, and copies of the legal authorities on which the pleading
relies)

Statement of Claim and Statement of Defense are to present the entirety of the arguments
and the evidence offered by each party in support of its case in chief

3.2 The Hearing

 The occasion for the parties to engage the tribunal with respect to the essential issues in
the case. Examination of witness tends to concentrate on cross examination.
 Also for witnesses to be cross-examined in a manner that tests the accuracy of their
testimony
 AVERAGE HEARING: 3-5 DAYS. Range 1-2 days (jurisdictional hearings and cases where
there are no complicated legal or factual issues) to 2 weeks (for highly complex cases)
 Many hearings have counsel for the parties presenting the opening statements on
behalf of their clients, followed by cross-examination of the factual witnesses and legal
and technical experts (between two extremes of being mostly evidence-based
arguments by counsel for the parties or being mostly cross-examination of witnesses)
 A witness is called to attend the hearing upon the request of the opposing party
o The party that relies on such witness testimony cannot present the witness at
the hearing for direct examination in the event that he or she is not called for
cross-examination
 Each party is given an equal amount of time for examinations – ‘chess-lock approach’

4. Post Hearing Activity

- Includes the period between the end of the hearing and the award, as well as activities
related to recognition and enforcement of award and set aside or annulment
proceedings.

4.1. Pre-award Activity

- fPost-hearing submissions usually contain a summary of arguments, with no new
evidence
- Statement of Costs, if there is a request for an award

ICSID SCC UNCITRAL

No rule for allocation Same rule as ICSID Costs oof arbitration
of costs; discretion of borne by unsuccessful
tribunal party, but tribunal can
apportion costs between
parties if reasonable
- Between 3 months to 1 year to issue decision on Jurisdiction; an award on damages is
between 6 and 18 months
 - Statistics on Investment Treaty arbitration: respondents States likely to win at 57%
versus 38.5% ration in favor of respondent States (2007).

Conclusion:

Remember difference between ICSID and non-ICSID enforcement and annulment procedure.
- The losing party has in essence only two limited options: (a) it can ask the same arbital
tribunal to correct the decision on restricted grounds, or (b) it can ask a national court
to annul decision for SCC and UNCITRAL award or, ask another set of arbitrators to
annul decision for ICSID awards on restricted grounds, but rarely successful.