Comparative Chart of International Investment Arbitration Rules

Note: Proceedings will be administered by the Investment Disputes Settlement Center in Beijing (“IDSC”) or, where expressly designated by the Parties, CIETAC Hong Kong.

Article 25 ICSID Convention ICSID jurisdiction shall extend to any legal dispute arising directly out of an investment between a Contracting State (or any designated constituent subdivision or agency of a Contracting State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to ICSID.

Article 1.4 For investor-State arbitration initiated pursuant to an investment treaty concluded after 1 April 2014, the rules automatically incorporate the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration 2014 (the “Transparency Rules”).

The rules apply where a State, State-controlled entity, or intergovernmental organization has agreed with one or more other parties that disputes between them in respect of a defined legal relationship, whether contractual, treaty based, or otherwise, shall be referred to arbitration under the PCA Arbitration Rules 2012.

Rule 5.7           

If the Parties are of different nationalities, the sole arbitrator or Chairperson of the Tribunal shall be of a different nationality than the Parties, unless otherwise agreed.

Article 17(6) If the Parties are of different nationalities, the sole arbitrator or Chairperson of the Tribunal shall be of a different nationality than the Parties, unless otherwise agreed.

Rule 1(3) Where the Tribunal is to consist of three members, neither Party may appoint a national of its own country without the agreement of the other Party.

If a Respondent fails to nominate an arbitrator within 35 days of the Claimant’s nomination, the SIAC Court shall appoint an arbitrator in its behalf.

If the Tribunal has not been appointed within the time period agreed by the Parties (or where the Parties have not agreed on a time, within the time period set by the SCC Board), the SCC Board shall make the appointment/s.

If the Tribunal has not been appointed within 90 days after registration of the arbitration by the Secretary General, either Party may request that the Chairman of the Administrative Council make the appointment/s.

If a Respondent fails to nominate an arbitrator within 30 days of the Claimant’s nomination, the Claimant may request that the Secretary General of the PCA appoints an arbitrator on behalf of the Respondent.

If either Party fails to nominate an arbitrator within 30 days of the Request for Arbitration, the Chairman of CIETAC shall appoint an arbitrator on its behalf. Where the Parties fail to jointly nominate a presiding arbitrator, the Chairman of CIETAC shall propose a list of five recommended candidates for the Parties to rank in order of preference, following which, the Chairman of CIETAC shall appoint in accordance with the Parties’ common preferences.

If a Respondent fails to nominate an arbitrator within 30 days of the Claimant’s nomination, the Claimant may request that the Secretary General of the PCA appoints an arbitrator on behalf of the Respondent.

Any challenge must be brought within 28 days of the notice of appointment or the date the circumstances giving rise to the challenge became known to the Party.

Rule 12.4

The challenged arbitrator shall be entitled to continue in the arbitration unless the Registrar orders a suspension of proceedings.

Rule 13.1

The SIAC Court shall decide the outcome of the challenge.

Article 19(5) Any disputed challenge shall be determined by the SCC Board.

Any challenge must be brought promptly and, in any event, before the proceedings are declared closed.

Rule 9(4)

The members of the Tribunal not subject to a challenge shall determine whether the challenge is successful.

Rule 9(6)

The proceedings shall be suspended until a decision has been taken on the challenge.

Article 13.4 Any disputed challenge shall be determined by the Secretary General of the PCA.

Any challenge must be brought within 30 days of the notice of appointment or the date the circumstances giving rise to the challenge became known to the Party.

Article 17.4

The Chairman of CIETAC shall make a final decision on any challenge, taking into account all relevant circumstances and, unless otherwise agreed, shall state the reasons for his/her decision. Article 17.5

The challenged arbitrator shall be entitled to continue in the arbitration until a final decision is reached on the challenge.

Any challenge must be brought within 30 days of the notice of appointment or the date the circumstances giving rise to the challenge became known to the Party.

Article 13.4

Any disputed challenge shall be determined by the Secretary General of the PCA.

A Party in need of emergency relief may apply for the appointment of an emergency arbitrator prior to constitution of the Tribunal, provided that the Parties have expressly agreed to application of these provisions.

Schedule 1, Para 3

If the application is accepted, an emergency arbitrator shall be appointed by the SIAC Court within one business day of receipt.

Schedule 1, Para 9

The emergency arbitrator’s interim award shall be made within 14 days of appointment.

A Party in need of emergency relief may apply for the appointment of an emergency arbitrator prior to constitution of the Tribunal.

Appendix II, Article 4

The SCC Board shall seek to appoint an emergency arbitrator, where appropriate, within 24 hours of receipt of the application.

Appendix II, Article 8

Any emergency decision on interim measures shall be made no later than 5 days from the date the application was referred to the emergency arbitrator.

A Party in need of emergency relief may apply for the appointment of an emergency arbitrator prior to constitution of the Tribunal, based on the applicable law or the agreement of the Parties.

Appendix II, Article 2.1

If the application is accepted, an emergency arbitrator shall be appointed by either the IDSC or CIETAC Hong Kong (as appropriate) within one business day of receipt.

Appendix II, Article 6.2

The emergency arbitrator’s interim award shall be made within 15 days of appointment.

A Party may file an application for early dismissal, on the basis that the claim is:

(i) manifestly without merit;

(ii) manifestly outside the jurisdiction of the Tribunal; or

(iii) manifestly inadmissible.

Rule 26.4

The Tribunal shall make its determination within 90 days of the application being filed.

A Party may request that one or more issues of fact or law is dealt with by summary procedure. Such an application may concern issues of jurisdiction, admissibility or the merits and might assert that:

(i) an allegation of fact or law material to the outcome of the case is manifestly unsustainable;

(ii) even if the facts alleged by the other Party are assumed to be true, no award could be rendered in favour of that party under the applicable law; or

(iii) any issue of fact or law material to the outcome of the case is, for any other reason, suitable to determination by way of summary procedure.

A Party may file a preliminary objection that the claim is not within the jurisdiction of ICSID or within the competence of the Tribunal, no later than the time limit fixed for filing the counter-memorial.

Rule 41(6)

If the Tribunal decides that the dispute is not within the jurisdiction of the Centre or not within its own competence, or that all claims are manifestly without legal merit, it shall render an award to that effect.

A Party may file an application for early dismissal, on the basis that the claim is:

(i) manifestly without merit; or (ii) manifestly outside the jurisdiction of the Tribunal.

Article 26.5

The Tribunal shall make its determination within 90 days of the application being filed.

The Tribunal may grant any interim measures it deems appropriate.

Article 38

The tribunal may order security for costs, having regard to:

(i) prospects of success;

(ii) ability to comply with an adverse costs order;

(iii) appropriateness in all the circumstances; and

(iv) any other relevant considerations.

At any time after the institution of the proceeding, a Party may request that provisional measures for the preservation of its rights be recommended by the Tribunal.

The Tribunal may order interim measures including injunctive relief, preservation of assets out of which a subsequent award may be satisfied, and preservation of evidence, provided that the requesting Party satisfies the Tribunal that:

(i) harm not adequately reparable by an award of damages is likely to result if the measure is not rendered and such harm substantially outweighs the harm likely to result to the Party against whom the measure is sought; and (ii) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

The Tribunal may order any interim relief it deems necessary or proper, in accordance with the applicable law or the agreement of the Parties.

The Tribunal may order interim measures including injunctive relief, preservation of assets out of which a subsequent award may be satisfied, and preservation of evidence, provided that the requesting Party satisfies the Tribunal that:

(i) harm not adequately reparable by an award of damages is likely to result if the measure is not rendered and such harm substantially outweighs the harm likely to result to the Party against whom the measure is sought; and

(ii) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

Unless otherwise agreed by the Parties, all matters relating to the proceedings, including the award, shall be treated as confidential.

Rule 38.2

SIAC may publish limited details of the arbitration, including the nationality of the parties, identity and nationality of the arbitrators, the legal instrument under which the arbitration was commenced and whether proceedings are ongoing or have been terminated.

Unless otherwise agreed by the Parties, all matters relating to the proceedings, including the award, shall be treated as confidential.

Various information and documents shall be made available to the public, including the details of the Parties, the statements of case and any expert reports and witness statements.

Article 6.1 Transparency Rules Hearings for the presentation of evidence and oral argument shall be public

Article 7 Transparency Rules Exceptions to public disclosure and hearings may be permitted in certain circumstances, such as for confidential business information and where disclosure is contrary to the State’s essential security interests.

Unless otherwise agreed by the Parties or decided by the Tribunal, the hearing shall be public.

Article 55

Unless otherwise agreed by the Parties, the Parties shall be deemed to agree that CIETAC may publish information on the arbitral proceedings, including but not limited to statements of case, written statements, written submissions by third parties, transcripts of hearings and orders, decisions and awards of the Tribunal. This is subject to safeguards for confidential information.

Non-disputing parties to a relevant treaty or contract may make written submissions to the Tribunal regarding interpretation of the treaty or contract, provided that these are relevant to the dispute.

Rules 29.2 and 29.3

Non-disputing parties to a relevant treaty or contract and/or other third parties may make apply to the Tribunal to make written Amicus Curiae submissions, provided that they:

(i) assist the Tribunal in the determination of a relevant factual or legal issue by bringing a perspective, particular knowledge or insight that is different from that of the Parties;

(ii) address a matter within the scope of the dispute; and

(iii) have a sufficient interest in the proceedings and/or any other related proceedings.

The Tribunal shall allow, or after consultation with the Parties, may invite submissions on treaty interpretation that are material to the outcome of the case from a non-disputing treaty party.

Appendix III, Article 3

Other third parties may apply for permission to make written submissions in the arbitration. In determining whether to allow such submissions, after consulting with the Parties, the Tribunal shall have regard to:

(i) the nature and significance of the interest of the third party in the arbitration;

(ii) whether the submission would assist the Tribunal in determining a material factual or legal issue by bringing a perspective, particular knowledge or insight that is distinct from or broader than that of the disputing Parties; and

(iii) any other relevant circumstances.

After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute to file a written submission regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which:

(i) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing Parties;

(ii) the non-disputing party submission would address a matter within the scope of the dispute; and

(iii) the non-disputing party has a significant interest in the proceedings.

The Tribunal shall allow, or after consultation with the Parties, may invite submissions on treaty interpretation that are material to the outcome of the case from a non-disputing treaty party.

Article 4 Transparency Rules

The Tribunal may, after consulting the Parties, allow other third parties to make written Amicus Curiae submissions, provided that they:

(i) have a sufficient interest in the proceedings; and

(ii) assist the Tribunal in the determination of a relevant factual or legal issue by bringing a perspective, particular knowledge or insight that is different from that of the Parties.

Non-disputing parties to a relevant treaty or contract may make written submissions to the Tribunal regarding interpretation of the treaty or contract, provided that these are relevant to the dispute.

Article 44.2

Non-disputing parties to a relevant treaty or contract and/or other third parties may make apply to the Tribunal to make written Amicus Curiae submissions. When determining whether to grant such an application, the Tribunal shall consider, in addition to the views of the Parties:

(i) the extent to which the third party would bring a perspective, particular knowledge or insight that is different from that of the Parties and assists in the determination of a factual or legal issue;

(ii) whether the third party has a significant interest in the arbitration; and

(iii) whether allowing such written submissions would affect the Parties’ right to confidentiality or any other rights.

The Tribunal may order disclosure of third party funding arrangements, including the identity of the funder, its interest in the outcome of proceedings and/or whether the funder has committed to undertake adverse costs liability.

Rules 33.1 and 35

The Tribunal may take into account any third party funding arrangements when apportioning the costs of the arbitration.

A Party must notify the Tribunal and the other Parties as soon as any third party funding agreement is concluded, including the nature of the agreement and the identity of the funder. The Tribunal may also order disclosure of any other relevant information.

Article 27.3

The Tribunal may take into account any third party funding arrangements when apportioning the costs of the arbitration.

The Tribunal shall apply the law and/or rules of law designated by the Parties. Failing such designation, the Tribunal shall apply the law and/or rules of law which it determines to be appropriate, including any relevant national laws, international treaties and custom and general principles of law.

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 shall apply the law and/or rules of law designated by the Parties. Failing such designation, the Tribunal shall apply the law and/or rules of law which it determines to be appropriate, including the domestic laws of any relevant State, any applicable rules of international law and trade custom.

The Tribunal shall issue a draft award to the Registrar within 90 days from the close of proceedings.

The final award shall be made no later than six months from the date the case was referred to the Tribunal. The SCC Board may extend this time limit upon a reasoned request from the Tribunal or if otherwise deemed necessary.

The award shall be drawn up and signed within 120 days after closure of the proceedings. The Tribunal may, however, extend this period by a further 60 days if it would otherwise be unable to draw up the award.

The Tribunal shall render an award within six months from the close of proceedings.

The Tribunal shall have the authority to order in its award that all or a part of the legal or other costs of a Party be paid by another Party.

The Tribunal may order one Party to pay any reasonable costs incurred by the other Party, having regard to the outcome of the case, each Party’s contribution to the efficiency and expeditiousness of the arbitration and any other relevant circumstances.

The Tribunal has the power to determine the apportionment of costs of the arbitration among the parties and, having regard to the circumstances of the case, to order that the losing Party shall compensate the winning Party for expenses reasonably incurred in pursuing the case.

The costs of the arbitration shall in principle be borne by the unsuccessful Party. However, the Tribunal may apportion the costs between the Parties if appropriate, taking into account the circumstances of the case.