Written Submissions Before Arbitral Tribunal: Evidence under ICSID Rules

In international arbitration, particularly under the ICSID (International Centre for Settlement of Investment Disputes) Rules, written submissions play a pivotal role in presenting evidence and arguments. These submissions allow parties to clearly outline their case, provide supporting documents, and address legal and factual issues before the arbitral tribunal. Understanding the framework and significance of written submissions is essential for investors, states, and legal practitioners involved in ICSID arbitration.

ICSID Arbitration: An Overview

The ICSID is an autonomous international institution established under the ICSID Convention (1965) to facilitate the settlement of investment disputes between foreign investors and sovereign states.

Key features:

• Neutral forum: Provides an impartial venue for dispute resolution.

• Binding awards: Decisions are enforceable under the ICSID Convention.

• Flexibility: Procedures can be tailored by the tribunal within the framework of ICSID Rules.

Role of Written Submissions

Written submissions are formal documents filed by parties to communicate their case to the arbitral tribunal. They serve multiple purposes:

1. Presenting Factual Evidence

   • Parties can attach contracts, correspondence, financial records, expert reports, and other documentary evidence.

   • Written submissions help the tribunal understand the context and chronology of events.

2. Stating Legal Arguments

   • Parties articulate applicable legal principles, treaties, and precedents.

   • Helps in connecting facts to legal claims under ICSID or applicable investment treaties.

3. Responding to Opponent’s Claims

   • Parties may file counter-memorials or rejoinders addressing the arguments and evidence submitted by the other side.

4. Submitting Witness Statements and Expert Reports

   • Written submissions can include affidavits, witness statements, or expert opinions, which form a crucial part of the evidentiary record.

ICSID Rules on Written Submissions

1. Procedural Flexibility

• Under ICSID Arbitration Rules (as amended 2006), the tribunal determines the schedule and format of written submissions.

• Tribunals often require Memorials, Counter-Memorials, Replies, and Rejoinders in multiple rounds.

2. Memorial

• The first comprehensive written submission of the claimant outlining facts, evidence, and legal arguments.

• Includes annexures and supporting documentation.

3. Counter-Memorial

• Filed by the respondent to contest the claims, presenting evidence and legal reasoning in their defense.

4. Reply and Rejoinder

• Claimant’s reply addresses issues raised in the counter-memorial.

• Respondent’s rejoinder responds to the reply.

5. Tribunal’s Powers

• Tribunals can request additional submissions, documents, or clarification of evidence.

• The tribunal determines the weight and admissibility of each submission in accordance with procedural rules.

Importance of Written Submissions as Evidence

1. Permanent Record – Provides a formal and detailed account of the case for the tribunal.

2. Efficiency – Helps streamline hearings, as many arguments and evidence are already documented.

3. Legal Precision – Written submissions allow careful articulation of complex legal points and references to treaties, case law, and ICSID jurisprudence.

4. Foundation for Award – The tribunal’s decision often relies heavily on written submissions alongside oral hearings and witness examinations.

Best Practices for Drafting Written Submissions

• Clarity and Structure – Organize facts, issues, and arguments logically.

• Supporting Evidence – Attach all relevant documents and references.

• Compliance with Tribunal Directions – Follow deadlines, formatting, and submission requirements.

• Legal References – Cite relevant ICSID awards, treaties, and international law principles.

• Conciseness – Avoid unnecessary repetition while ensuring completeness of arguments.

Conclusion

Written submissions before an arbitral tribunal under ICSID Rules are fundamental to the evidentiary process. They serve as the primary medium for presenting facts, evidence, and legal arguments, forming the backbone of arbitration proceedings. Properly drafted submissions not only strengthen a party’s case but also aid the tribunal in making a fair and informed award.