(1)  General and Article 1(1)

1. 10.7  … When regard is had to the non–prescriptive and non–coercive nature of the UNCITRAL Rules as a standard regime available for parties to apply to resolve disputes between them, however, there appears no reason why the UNCITRAL Rules cannot be adapted to apply to a non–contractual dispute. For example, the parties could agree that a dispute as to tort, or occupier’s or environmental liability might be determined in an arbitration applying the UNCITRAL Rules. Moreover they could so agree in relation to a dispute which had already arisen independently of any contractual relationship between them. In this manner the parties to an arbitration may specifically or by implication adopt or apply the UNCITRAL Rules to any dispute.

2. 10.8  Further, although the UNCITRAL Rules were primarily drawn for the purposes of the arbitration of contractual disputes between parties or corporations, a State entity, or a State itself, may become a principal party to an agreement to arbitrate subject to UNCITRAL Rules. A State may agree to arbitrate under the UNCITRAL Rules before or after a dispute arises. Indeed, State parties commonly agree to apply the UNCITRAL Rules, modified as may be appropriate, to disputes that they have agreed to arbitrate with a non–state party. In the context of international arbitration this often enough occurs in disputes over procurement or “build, operate and transfer” contracts and other transactions involving a State and a non–State foreign party.

3. 10.10  For these reasons the Tribunal approaches the issue of the applicable rules on the basis that the UNCITRAL Rules may be applied to an agreement to arbitrate a non–contractual dispute, including a dispute where one of the parties is or is said to be a State. The Tribunal finds that the parties to this arbitration effectively have agreed to apply the UNCITRAL Rules with such necessary adaptations as arise from the terms of the Arbitration Agreement and the nature of the issues referred to arbitration.

(p. 24) Lance Paul Larsen and The Hawaiian Kingdom, Award (Permanent Court of Arbitration, 5 Feb 2001), reprinted in (2001) 119 ILR 566, 585–86.

(2)  Article 1(2)

By the second sentence of paragraph 1 of its Order of March 18, 1987, the Tribunal provided that the procedure of the arbitration shall be governed by the UNCITRAL Arbitration Rules, as agreed by the Parties in the Agreement of October 22, 1986, subject to any mandatory provisions of the Netherlands Arbitration Law, which, in the event of conflict with any of the UNCITRAL Rules shall prevail. The Tribunal has concluded that its Partial Award on Liability, determining the substance of the claims on both jurisdiction and the merits, and proposed Final Award (See XX hereof) are consistent with the UNCITRAL Arbitration Rules and in no respect in conflict with any of the mandatory provisions of the Netherlands Arbitration Law.

Wintershall AG, et al. and The Government of Qatar. Partial Award on Liability (Ad Hoc UNCITRAL Proceeding, 5 Feb 1988), at 6–7, reprinted in (1989) 28 ILM 798, 801.

1. [44]  With respect to matters of procedure, the Arbitral Tribunal is bound to follow the agreement of the Parties, which in this case means the UNCITRAL Arbitration Rules to which their contract refers. The Arbitral Tribunal is not required to apply any national rules of procedure unless a Party has shown that the application of such a rule is mandatory. This is the consequence of Art. 1(2) of the UNCITRAL Rules which provides:

   These Rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, the provision shall prevail.

Himpurna California Energy Ltd and PT (Persaro) Perusahaan Listruik Negara, Final Award (Ad Hoc UNCITRAL Proceeding, 4 May 1999), reprinted in (2000) XXV YCA 13, 26.

Article 15 contains “General Provisions” and is one of the most important sections of the UNCITRAL Rules. It spells out certain fundamental principles which must be taken into account in the application of the more specific rules “during the arbitral proceedings”, that is, until the issuance of (p. 26) the award or other termination of the proceedings.¹⁹ Although at first reading Article 15 may not appear to provide answers to so many concrete questions, it does in fact provide the key to a variety of problems not regulated elsewhere in the Rules. Therefore, Article 15 should be carefully studied prior to commencement of the arbitral proceedings.

(1)  Basic Principles– Article 15(1)

(2)  Right to a hearing– Article 15(2)

Article 15(2) elaborates upon the “full opportunity” of each party to present its case. According to paragraph 2, the tribunal shall hold hearings at the request of either party “at any stage of the proceedings.” In the Preliminary Draft, this requirement was intended to apply only to hearings for the production of evidence by witnesses, whereas hearings for the presentation of oral argument were to be discretionary, unless requested by both parties.¹¹⁴ The New Delhi Arbitration Congress, at which the Draft was discussed, “disclosed a preponderant opinion that the presentation of oral argument was a right generally available in [municipal] legal proceedings which should also be available in arbitral proceedings at the request of either party.”¹¹⁵ Hence, either party has the right to have hearings not only for the presentation of witness evidence, but also for oral argument.

(p. 46) In the UNCITRAL Model Law, the scope of the hearings to be provided has been further broadened. Instead of referring to evidence by “witnesses,” Article 24(1) of the Model Law contains a provision on hearings, inter alia, “for the presentation of evidence” in general.¹¹⁶ This wording “was intended to ensure that the provision would not be interpreted to bar types of evidence that might be deemed in some systems not to be ‘testimony of witnesses,’ such as cross–examination or the testimony of a party.”¹¹⁷ While the clarification in question can be welcomed, it is submitted that in the UNCITRAL Rules, intended for world–wide use, the concept of “witness” also can and should be interpreted in a broad, non–technical sense. This has been the practice of the Iran-US Claims Tribunal where, on the one hand, a distinction has been made between witnesses in a strict sense and “party witnesses,” but where, on the other hand, both categories of witnesses have been allowed to testify at hearings.¹¹⁸

Nevertheless, the limitations of the right to a hearing guaranteed by Article 15(2) are not quite clear. At face value, the provision appears to include the right to request hearings not only on merits, but also on jurisdictional and other preliminary questions and even on procedural matters. On the other hand, the participants of the New Delhi Congress, when referring to a right “generally available in legal proceedings,” plainly did not contemplate a right to have a separate hearing on any kind of preliminary issue. Nor does the reference to “any stage of the proceedings,” not included in the Preliminary Draft, contradict this conclusion. The quoted phrase was added in response to the suggestion of the representative of the Soviet Union who “proposed an amendment to the effect that a party might request an oral hearing at any stage in the proceedings, not just at the beginning.”¹¹⁹ Thus the altered wording was not intended to have any bearing on the question of whether there is a right to a hearing on procedural and other issues, but only to clarify when a hearing can be requested.

(p. 47) Regarding the question of jurisdiction in particular, Article 21(4) provides that “[i]n general the arbitral tribunal should rule on a plea concerning its jurisdiction as a preliminary question.”¹²⁰ Although this does not say anything about the hearing, the concept of “preliminary question” has sometimes been understood to refer to something that is decided prior to any hearing.¹²¹ This, however, is not the only possible interpretation of the phrase in question. Moreover, if an arbitral tribunal considers a question important enough to be treated preliminarily, should it not also merit a hearing?

The Iran-US Claims Tribunal has interpreted Article 15(2) so as to make the right to a hearing dependent on whether or not the question regards “procedural matters.”¹²² If it does, a hearing can be dispensed with, notwithstanding a party’s request concerning it. The right to a hearing has been considered excluded, inter alia, for requests for interim measures and preliminary jurisdictional questions.¹²³ However, in ad hoc arbitration, an arbitral tribunal is advised not to proceed from such a general distinction between substantive and procedural questions unless authorized to do so by the parties.

In light of the unqualified wording of Article 15(2), the policy of exempting procedural or jurisdictional questions from the scope of the right to a hearing could be regarded as such a departure from the agreement of the parties as to subject the award to a challenge at the place of arbitration or non–recognition in another jurisdiction.¹²⁴ In this regard, the legislative history of Article 24(1) of the Model Law is illustrative. In that context a proposal was made to limit the right to a hearing to “the substance of the dispute,” to the exclusion of procedural or jurisdictional questions. From the rejection of this proposal it has been concluded that “the party’s right to a hearing should not be considered limited to substantive issues.”¹²⁵ There are no strong reasons why Article 15(2) of the UNCITRAL Rule should be construed differently.

(p. 48) As already indicated, the broad scope of Article 15(2) should not be interpreted as granting unlimited rights to have separate hearings on all kinds of procedural or preliminary questions as they may arise. It is expected that various legal systems under which the UNCITRAL Rules may be employed recognize that the arbitral tribunal must have considerable control over such matters as the number of hearing days and the hearing procedure. By virtue of this control, the tribunal normally can, for example, join jurisdictional issues to merits or decide minor procedural questions without a hearing, even if a party requests one. Whenever a decision on a preliminary question may lead to the final disposition of the rights of the parties, or to the termination of the proceedings, a hearing normally should be granted if requested by a party.

As to decisions on interim measures (those which neither affect the final disposition of the rights of the parties nor terminate the whole proceedings), the decision whether or not to grant a requested hearing should be made in light of the particular circumstances. Sometimes the urgency of the matter may not allow a hearin; in other cases, the very nature of the measure requested may require that oral argument be heard. The principle of party autonomy suggests that a hearing be granted whenever requested by both parties. Even where requested by only one of the parties, the arbitral tribunal should keep in mind that Article 15(2) spells out the principle of the right to a hearing. Should a party request a hearing abusively, that party may be forced to bear the costs resulting from an unnecessary hearing.¹²⁶

The hearing can be requested at “any stage of the proceedings.” As noted above, this wording was chosen in order to make it clear that the right does not necessarily have to be exercised in the beginning of the proceedings. While this may open up the possibility for disruptive requests made on the eve of the proceedings’ termination, the overall control exercised by the arbitral tribunal should allow it to prevent the disruption of orderly proceedings.¹²⁷ In this spirit the Iran-US Claims Tribunal has held that Article 15(2) “should be interpreted, in the light of the particular circumstances of each case, to mean that hearings are to be held upon reasonable (p. 49) request of a party at an appropriate stage of the proceedings.”¹²⁸ In Ladjevardi, the Tribunal held a hearing upon the request of the Claimant in a case in which a hearing probably would not have been held proprio motu.¹²⁹ Thus the arbitral tribunal can, whenever it intends to proceed without a hearing, inform the parties and invite them to exercise their right to request a hearing by a certain date.¹³⁰

In the practice of the Iran-US Claims Tribunal, meetings with basically similar functions have been institutionalized in the form of “pre–hearing conferences” mentioned in note 4 to Article 15 of the Tribunal Rules.¹³² The arranging of such preliminary meetings is within the discretion of the arbitrators.¹³³ In the early years of the Iran-US Claims Tribunal they were very common in more substantial cases. Generally, the pre–hearing conferences serve the purpose of clarifying and narrowing issues, especially jurisdictional questions. They provide an opportunity to examine the possibilities of a settlement and to discuss the further proceedings, as well as settle questions (p. 50) such as production of documents.¹³⁴ There are differing views on the usefulness of the pre–hearing conferences, and their utility at the Tribunal would appear to depend on the particular circumstances of each case.¹³⁵ In simple cases, especially where it is clear that a hearing is going to be held, they may be unnecessary. In more complex cases they may be useful both to the parties and the arbitrators, for example, to determine whether some jurisdictional or other preliminary question deserves to be treated separately.¹³⁶ While a pre–hearing conference is not a hearing, in the sense of Article 15(2), such a preliminary conference may help the tribunal in deciding whether and to what extent hearings are needed.¹³⁷

In the practice of the Iran-US Claims Tribunal, the number of pre–hearing conferences decreased after the first years.¹³⁸ In fact no pre–hearing conferences were held in 1990–1992. In the beginning of 1993, however, a pre–hearing conference was held in a very complicated inter–state case, but none have occurred since then.¹³⁹

(3)  Communication of documents– Article 15(3)

Article 15(1) requires equal treatment of the parties by the arbitral tribunal. Paragraph 3 of the same Article extends the principle of “[e]qual treatment and equal opportunity for both parties”¹⁴⁰ to the conduct of the parties themselves by requiring them to communicate any information (p. 51) supplied to the arbitral tribunal at the same time to the other party. Such elaboration of the principle of audiatur et altera pars creates an important safeguard against unenforceability of the arbitral award on the ground that it has been based on documents not communicated to the losing party.¹⁴¹ Article 2 sets forth the details concerning the mode of communication of documents to the other party.¹⁴²

In its overall control of the arbitral proceedings, the tribunal should see to it that the parties act in accordance with Article 15(3). Therefore, if it ascertains that certain documents, or other pieces of information supplied to it, have not been communicated to the other party, the Tribunal should, if necessary, convey the information to the other party itself.

Indeed, the parties may consider the possibility of modifying Article 15(3) so as to entrust the arbitral tribunal with the task of acting as a “clearinghouse” to which the documents and other information are first supplied, and which then transmits them to the other party.¹⁴³

(1)  General and Tribunal Rules, Article 15(1)

Upon invitation of the Tribunal in accordance with Note 5 to Article 15 of the Provisionally Adopted Tribunal Rules the Government of the United States has submitted oral and written statements with a view to assisting the Tribunal in carrying out its task.

E–Systems, Inc. and The Islamic Republic of Iran, Award No. ITM 13–388–FT (4 Feb 1983) at 6, reprinted in 2 Iran-US CTR 51, 54 (1983–II).

Article 15 of the Tribunal Rules requires that the Tribunal treat the parties equally. This is a fundamental principle of justice. In the circumstances of these cases, the delicate balance of equality would be tipped if one party were to be permitted to present an extensive Memorial and (p. 52) additional exhibits, without providing an opportunity for the other party to file a memorial in response. While the filing by Claimants of their Memorial on the Merits prior to the Hearing may be an advantage to the Respondents in that it informs them in detail of Claimants’ contentions and arguments and may be of assistance to the Tribunal in analyzing the case, nevertheless it cannot be accepted without providing the Respondents an equal opportunity to make a written submission.

Foremost Tehran Inc. and The Islamic Republic of Iran, Case Nos. 37 and 231, Chamber One, Order of 15 Sep 1983, reprinted in 3 Iran-US CTR 361, 362 (1983–II).

The conduct of proceedings before this Tribunal is governed by the Tribunal Rules and by no national procedural system.

Amman & Whitney and Ministry of Housing and Urban Development (Khuzestan Department of Housing and Urban Development), Case No. 198, Chamber One, Order of 30 Jan 1984.

It is clear from the language and context of Article 15 that its operative terms apply during the arbitral proceedings themselves, prior to the issuance of an award. Its applicability terminates with the rendering of an award. This is especially apparent when Article 15 is compared with Article 29(2), …

Dames & Moore and The Islamic Republic of Iran, Decision No. DEC 36–54–3 (23 Apr 1985) at 15, reprinted in 8 Iran-US CTR 107, 115 (1985–I).

The Tribunal notes a document received by the Tribunal’s Registry on 25 April 1986, submitted by M. A. Saheb, who identifies himself as the Chairman and Managing Director of South Gulf Trading and Shipping Limited of Dubai, who is not a party in this Case.

Pursuant to note 5 to Article 15 of the Tribunal Rules and taking into consideration that the above–mentioned document may assist the Tribunal in deciding the jurisdictional issue regarding the Claimant’s ownership and control of SGTC, the Tribunal decides that such document should be filed by the Registry and served on the Parties.

George W Drucker Jr and Foreign Transaction Co., Case No. 121, Chamber Two, Order of 2 May 1986.

On 27 November 1987 the Claimants filed a request for permission to file a “Supplemental Memorial and Summary of Evidence” in response (p. 53) to “Respondents’ Brief and Evidence and Rebuttal Memorial” filed on 15 September 1987 (Doc. No. 178). The Claimants did not allege that Respondents’ Doc. no. 178 contains improper rebuttal material and identified no new material. Together with this request, the Claimants filed the “Supplemental Memorial and Summary of Evidence” that it requested be admitted.

It has been the established practice of the Tribunal to close the exchange of written pleadings after the submission of Memorials in Rebuttal. In order to secure equal treatment of the Parties and an orderly conduct of the proceedings, the Tribunal admits further written submission close to the Hearing date only in exceptional circumstances. It finds no reason to depart from this practice in the circumstances of this Case, particularly in view of the fact that the Hearing has already been postponed once to afford the Parties another round of written pleadings.

Watkins–Johnson Company and The Islamic Republic of Iran, Case No. 370, Chamber One, Order of 3 Dec 1987.

On 30 November 1987 the Claimant filed a Request for an Order authorizing the Parties in this Case to file simultaneous surrebuttals. In the Request it is stated that the Respondents’ rebuttal Memorial and Exhibits filed on 3 August 1987 contain new arguments and evidence. It is also stated that a round of surrebuttal pleadings would afford the Respondents a further opportunity to respond fully to Claimant’s evidence and arguments.

It has been the established practice of the Tribunal to close the exchange of written pleadings after the submission of Memorials in Rebuttal. In order to secure equal treatment of the Parties and an orderly conduct of the proceedings, the Tribunal admits further written submissions close to the Hearing date only in exceptional circumstances.

The Tribunal finds no reason to allow a further round of submissions in the present Case. If any of the material filed by the Respondents on 3 August 1987 is found not to fall within the definition of rebuttal evidence, it will be ruled inadmissible and disregarded. The Claimant’s request is therefore denied.

General Electric Company and The Islamic Republic of Iran, Case No. 386, Chamber One, Order of 10 Dec 1987.

On that date the Tribunal also received the documents in French language, dated 6 March, 15 April and 5 October 1987, allegedly related to the criminal proceedings at the Swiss court initiated by the (p. 54) Respondents. The above submissions were made in support of the Respondents’ request to “suspend the proceedings in this Case, pending determination of suit” in the Swiss court.

On 30 October 1987 the Claimant objected to the above request and to the submission of the above documents.

The Tribunal’s proceedings are governed by the Declaration of the Government of the Democratic and Popular Republic of Algeria and by the Tribunal Rules of Procedure. None of these texts obliges the Tribunal to suspend the proceedings before it for the reason of an alleged initiation of the criminal proceedings in a national court by one of the Parties. Such a suspension could be only a matter of convenience.

Fedders Corporation and Loristan Refrigeration Industries, Case No. 250, Chamber Three, Order of 5 Jan 1988.

1. 19.  As to the existence, or the exercise of any inherent power to reinstate a terminated Case, the Tribunal practice fails to provide conclusive guidance; indeed, the Tribunal has specifically reserved its position as to whether it has inherent power to revise an award under exceptional circumstances. See, e.g. World Farmers Trading Inc. and Government Trading Corporation, et al., Decision No. DEC 93–764–1, para 3 (3 Oct. 1990), reprinted in 25 Iran-U.S. C.T.R. 186, 187 (1990–II); Dames & Moore and The Islamic Republic of Iran, Decision No. DEC 36–54–3, pp. 18–21 (23 Apr. 1985), reprinted in 5 Iran-U.S. C.T.R. 107, 117–18 (1984–I); Mark Dallal and Islamic Republic of Iran, Decision No. DEC 30–149–1 (12 Jan. 1984), reprinted in 5 Iran-U.S. C.T.R. 74, 745 (1984–I); Henry Morris and Government of the Islamic Republic of Iran et al., Decision No. DEC 26–200–1, p. 2 (16 Sept. 1983), reprinted in 3 Iran-U.S. C.T.R. 364, 365 (1983–II).

2. 20.  Of the Decisions cited above, the Decision most on point is Dames & Moore. There, the Tribunal rejected the Respondent’s request to reopen a case allegedly based on forged documents and perjured affidavits. The Tribunal concluded that even a generous reading of the Respondent’s allegations of fraud did “not raise justified concern that the processes of the Tribunal [had] been subverted.” The Tribunal thus did not need to decide whether it possessed inherent authority to reopen a case procured by fraud:

   In the absence of an express grant of authority to the Tribunal to reopen and reconsider cases in the merits after issuance of an award, the question has been posed as to whether an (p. 55) “inherent power” to do so may exist “under exceptional circumstances”, at least where an award “was based on forged documents or perjury.” [citing Henry Morris and Mark Dallal, above]. The implied or inherent power of an international claims tribunal in this area is an issue which has been subjected to learned analysis and limited judicial scrutiny, with wholly inconsistent results. […]. The instant request for reopening and reconsideration, however, falls well short of justifying any such effort to ascertain the precise balance struck between finality of Tribunal dispositions, on the one hand, and the integrity of its processes on the other.

3. 21.  As in Dames and Moore, the Tribunal has first to examine the request to determine whether there exists a prima facie case to justify reinstatement and if such a case exists, whether the Tribunal possesses inherent power to do so under the circumstances.

4. 24.  The evidence submitted by the Applicants falls short of establishing a prima facie case …

Gloria Jean Cherafat and The Islamic Republic of Iran, Decision No. DEC 106–277–2 (25 June 1992), reprinted in 28 Iran-US CTR 216, 221–23 (1992) (footnotes omitted).

1. 27.  The Tribunal Rules grant considerable discretion to the Tribunal to admit or exclude written submissions. This discretion includes the power to accept unauthorized post–Hearing submissions, as derived from Article 15, paragraph 1; Article 22; Article 25, paragraph 6; and Article 29, paragraph 2 of the Tribunal Rules.

2. 28.  Tribunal precedent is, however, strongly against the admission into evidence of unauthorized late–filed documents. The Tribunal has expressed a particular aversion to admitting documents that are submitted not only after filing deadlines, but also after the Hearing itself. The most extensive treatment of this issue is to be found in Harris International Telecommunications, Inc. and The Islamic Republic of Iran, et al., Award No. 323–409–1 (2 November 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 45–50.

3. 29.  Harris emphasizes that in deciding whether to admit a late submission, it is important that the Tribunal treat the parties equally and fairly, bearing in mind that accepting late–filed documents from one party can result in prejudice to the other. A further consideration is the “orderly conduct of the proceedings.” In applying these principles to the facts of a given case, the Tribunal (p. 56) should consider the “character and contents of late–filed documents and the length and cause of the delay.” Late–filed submissions containing new facts and evidence “are the most likely to cause prejudice to the other Party and to disrupt the arbitral process if filed late.”

4. 30.  Thus the considerations that are generally relevant when deciding whether to admit late–filed documents are the possibility of prejudice, the equality of treatment of the Parties, the disruption of the arbitral process caused by the delay and the reason for the delay.

5. … 

6. 59.  The Agent of Iran also cited Article 15, paragraph 1 of the Rules as authority for the Respondents’ request to reopen [the hearing]… The Agent of Iran argued that

   [t]here is no doubt that if an affidavit is accepted as evidence in a case while, on the other hand, the adverse party is not given the permission to orally and directly examine the said witness at the hearing session, the latter will be completely deprived of the “full opportunity” he is supposed to be given for presenting his Case. In other words, it is not possible to deprive a party of the right of examining a witness whose written testimony has been accepted and still claim that the latter party has been granted a “full opportunity” of presenting his case.

7. 60.  The Tribunal need hardly point out, however, that this Tribunal (like many others) customarily accepts affidavits into evidence and takes account of those affidavits without the opposing party necessarily being given the opportunity to cross–examine the affiant. Several examples (unchallenged by either of the Parties) are to be found in these very Cases.

8. 61.  Furthermore, the Tribunal is unpersuaded that any Party can credibly claim that it has been denied a “full opportunity of presenting [its] case” given the procedural history of these Cases. The key word is “opportunity”: the Tribunal is obliged to provide the framework within which the parties may present their cases, but is by no means obliged to acquiesce in a party’s desire for a particular sequence of proceedings or to permit repetitious proceedings.

Dadras International, et al and Islamic Republic of Iran, et al, Award No. 567–213/215–3 (7 Nov 1995), reprinted in 31 Iran-US CTR 127, 135–36, 143–44 (1995) (footnotes omitted).

(p. 57)

1. 9.  Under the Tribunal Rules the Tribunal has the discretion to accept unauthorized late submissions from the Parties. See Article 15, paragraph 1, and Article 22 of the Tribunal Rules. However, in the interests of the orderly conduct of the proceedings and in order to maintain “equality of arms,” it has in general taken a restrictive approach to the exercise of this discretion. See, for example, Dadras International, et al. and Islamic Republic of Iran, et al., Award No. 567–213/215–3, paras27–28 (7 Nov. 1995), reprinted in 31 Iran-U.S. C.T.R. 127, 135–36; Edgar Protiva, et al. and Government of the Islamic Republic of Iran, Award No. 566–316–2, paras30–36 (14 July 1995), reprinted in 31 Iran-U.S. C.T.R. 89, 102–03 (“Protiva”); Reza Said Malek and Government of the Islamic Republic of Iran, Award No. 534–193–3, para 12 (11 Aug. 1992), reprinted in 28 Iran-U.S. C.T.R. 246, 249–50; Harris International Telecommunications, Inc. and Islamic Republic of Iran, et al., Award No. 323–409–1 (2 Nov. 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 45–50. In the present Case, the Tribunal’s Order of 17 April 1996 clearly restricted the scope of the submissions to be made by both Parties. In light of these restrictions and in the absence of any other justifying circumstances, the Tribunal excludes from the record items 3, 4 and 6 of the Respondent’s submission of 27 June 1996, the Claimant’s entire submission of 22 July 1996 and the Respondent’s entire submission of 20 August 1996.

Vivian Mai Tavakoli et al and The Government of the Islamic Republic of Iran, Award No. 580–832–3 (23 Apr 1997), reprinted in 33 Iran-US CTR 206, 211 (1997).

1. 48.  The Tribunal notes that, according to its practice reflected in Harris International Telecommunications, Inc. and The Islamic Republic of Iran, et al., Partial Award No. 323–409–1, paras57–75 (2 Nov. 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 45–52, Articles 15, 22, 23, and 28 of the Tribunal Rules are the primary rules regulating the status of late–filed documents…

2. 49.  Furthermore, on the basis of Article 15, both parties to the case have to be treated equally. This means that both parties to the case are entitled to have an equal opportunity to present written submissions and to respond to each other’s submissions. This also means that the parties must have an equal opportunity to go through the evidence and the arguments submitted by the other party, and to prepare their own position and arguments in advance of the hearing.

(p. 58)

3. 50.  Chamber One has taken a strict stance on these matters: no new evidence is permitted prior to the hearing unless the Tribunal finds that it is justified by exceptional circumstances and is filed no later than two months before the hearing in the case. Moreover, as a matter of routine in its orders scheduling a hearing the Chamber advises the parties that any party is free to make whatever arguments it wishes at the hearin; however, parties may not introduce new documents into evidence absent the Tribunal’s permission. Such permission normally is not granted except for rebuttal evidence introduced to rebut evidence produced at the hearing.

   …

4. 52.  Typically, the practice not to allow new evidence in the record encompasses not only the two–month period directly preceding the hearing but also the post–hearing period preceding the filing of an award. The practice of Chamber One has been strict, even though the Chamber has taken into consideration the nature of these documents, the elapsed period of time, and the reasons for the delay, when deciding on the admissibility of late–filed, unauthorized documents. Usually, the Tribunal has rejected the late–filed unauthorized documents in order to prevent any party from using “tactical” filings at the hearing or thereafter.

Vera–Jo Miller Aryeh et al and The Islamic Republic of Iran, Award No. 581–842/843/844–1 (22 May 1997), reprinted in 33 Iran-US CTR 272, 287–88 (1997).

(2)  Tribunal Rules, Article 15(2)

The Parties are hereby notified that a settlement or pre–hearing conference in this case will beheld on Thursday 16 December at 9.00 am at Parkweg 13, The Hague. The Parties should be prepared to discuss the matters indicated in the schedule annexed. The Parties are requested in particular to have available all necessary authorizations and approvals in the event that a settlement should result.

ANNEX

1. (a)  Clarification of the issues presented and relief sought;

2. (b)  identification and clarification of any issues to be considered as preliminary questions and particularly the issue of jurisdiction;

3. (c)  status of any settlement discussions;

4. (d)  whether any further documents or written statements, including any reply or rejoinder, are requested by the arbitrating parties or required by the arbitral tribunal;

(p. 59)

5. (e)  fixing a schedule for submission by each arbitrating party of a summary of the documents or lists of witness or other evidence it intends to present at the hearin;

6. (f)  fixing a schedule for submission of any documents, exhibits or other evidence which the arbitral tribunal may require;

7. (g)  desirability of appointing an expert by the arbitral tribunal and, if so, the expert’s qualifications and terms of reference; whether the arbitrating parties intend to present experts and, if so, the qualification of and the areas of expertise to be covered by any such expert;

8. (h)  determining what documentary evidence will require translation;

9. (i)  fixing a schedule of hearings;

10. (j)  other appropriate matters.

The Austin Company and Machine Sazi Arak, Case No. 295, Chamber Two, Order of 30 Jul 1982.

The Tribunal intends to decide on the basis of the documents submitted (i) whether the forum selection clause in the Contract excludes jurisdiction of the Tribunal and (ii) whether the claim is a claim by a national of the United States as defined in Article VII of the Claims Settlement Declaration.

Sylvania Technical Systems, Inc. and The Islamic Republic of Iran, Case No. 64, Chamber One, Order of 10 May 1983.

The Tribunal wishes to point out that, contrary to the provisions relating to Hearings, the Tribunal Rules do not contain any provision by which the Parties are entitled to a Pre–hearing Conference when they make a request to that effect. Moreover, the practice of the Tribunal to date has been to schedule Pre–hearing Conferences only when the Tribunal deems it necessary for the proper scheduling of further proceedings. In quite a number of cases this is not necessary, such as in the present case.

Phelps Dodge Corporation and Overseas Private Investment Corporation and The Islamic Republic of Iran, Case No. 99, Chamber Two, Order of 8 May 1984.

In view of the large number of pending cases and the practical limits on the number of hearings and deliberations that can be held during each year, the Tribunal cannot afford, as a general practice, to separate certain issues for preliminary hearing and decision but must normally join such issues to the merits.

(p. 60) White Consolidated Industries Inc. and Iran Compressor Manufacturing Co., Case No. 126, Chamber Two, Order of 7 Dec 1984.

… neither the Tribunal Rules nor Tribunal practice requires that there be a Pre–Hearing Conference or that a Hearing be held on requests for interim measures or preliminary issues such as jurisdiction.

Component Builders, Inc. and The Islamic Republic of Iran, Case No. 395, Chamber Three, Order of 19 Feb 1985.

The Tribunal does not find that the reasons invoked by the Respondent in this submission constitute strong and compelling reasons. Nevertheless, it is prepared to grant a last extension for the filing of Respondent’s submission until 21 October 1986. After that date, the Tribunal will take a decision regarding its jurisdiction on the basis of the briefs and evidence before it.

Parvin Mariam Samrad and The Islamic Republic of Iran, Case No. 465, Chamber Two, Order of 28 Jul 1986.

Unless by 18 February 1987 either Party has filed a request for an oral Hearing, both the jurisdictional issues and the merits of the Case will be decided thereafter by the Tribunal on the basis of the documents submitted.

World Farmers Trading Inc. and Government Trading Corporation, Case No. 764, Chamber One, Order of 4 Aug 1986.

The Tribunal makes the following order pursuant to the pre–hearing conference held on 1 July 1986:

1. 1.  The Tribunal does not consider it appropriate at the present stage of the proceedings to issue an interlocutory Award disposing of jurisdictional or other preliminary issues.

   It is the present intention of the Tribunal that the issues raised in paragraphs 2 and 3 above shall thereafter be decided on the basis of the documents submitted.

Tai, Inc. and The Islamic Republic of Iran, Case No. 421, Chamber One, Order of 12 Aug 1986.

1. 1.  Considering the nature of the dispute and the amount involved in the claim in relation to the costs that will be incurred by the parties (p. 61) in the event of a hearing, the Tribunal is prepared to decide this claim on the basis of the documents submitted.

2. 2.  The Tribunal will decide the claim without a hearing unless a request for a hearing is filed by either party not later than 22 September 1986. In the event such a request is filed, the hearing will be held on 20 October 1986 at Parkweg 13, The Hague starting at 9.30 am.

The United States of America on behalf and for the benefit of the New York Blower Company and The Islamic Republic of Iran, Case No. 10418, Chamber Two, Order of 1 Sep 1986.

1. 21.  As noted above, … Iran withdrew its earlier request for a hearing on jurisdictional issues by its submission filed on 5 February 1992. As noted also in para 11, Siporex California requested in its submission filed on 22 June 1992 “a formal hearing and the presentation of evidence since the respondents have criticized and slandered the evidence presented on behalf of the claimant in support of its claim contending it is unreliable and fabricated.” This request for hearing must be denied. More than a year before Siporex California requested a hearing, the Tribunal had, by Order filed on 14 March 1991, informed the Parties that it “intends to take a decision regarding its jurisdiction on the basis of the evidence before it …” The Tribunal notes that the Claimant was free at that time to request a hearing, but it chose not to do so. Instead, it and the Respondents filed extensive pleadings within the framework of the Tribunal’s Order, without any mention of a request for a hearing. In the circumstances, the request for a hearing was not made at an appropriate time. Although Article 15, paragraph 2, of the Tribunal rules states that a party may request a hearing at “any stage of the proceedings”, the Tribunal has previously held that “such provision should be interpreted, in the light of the particular circumstance of each case, to mean that Hearings are to be held upon the reasonable request of a party made at an appropriate stage of the proceedings.” See World Farmers Trading Inc. and Government Trading Corporation, et al., Award No. 428–764–1 (7 July 1989), para 16, reprinted in 22 Iran-U.S. C.T.R. 204, at 209 (1989–II). Further, it is clear from its request that the Claimant seeks a hearing in order to present evidence in connection with the authenticity of certain documents that Iran asserts were fabricated. However, no hearing for that purpose is needed because, for reasons stated below, … the Tribunal decides that it (p. 62) has no jurisdiction in this Case regardless of the Parties’ dispute on the authenticity of those documents.

Tchacosh Company, Inc. and The Islamic Republic of Iran, Award No. 540–192–1 (9 Dec 1992), reprinted in 28 Iran-US CTR 371, 379–80 (1992).

1. 3.  The Tribunal notes that the Parties appear to disagree about the controlling precedent in these Cases, the Claimant citing Award No. 382–B 1–FT (31 Aug. 1988) and the Respondent citing Award No. 529–A15 (II:A and II:B)–FT (6 May 1992). The Tribunal also notes that the Parties appear to envisage somewhat different proceedings and filings.

2. 4.  In these circumstances, the Tribunal believes that it would be desirable to have a Pre–Hearing Conference with the Parties prior to its decision on the further proceedings in these consolidated Cases.

3. 5.  Accordingly, the Parties are requested to attend a Pre–Hearing Conference in these consolidated Cases to be held at Parkweg 13 on 10 February 1993, commencing at 9:30 a.m.

4. 6.  The following matters will be considered at the Pre–Hearing Conference:

   1. (a)  identification of any issues that the Parties believe the Tribunal should consider as preliminary questions;

   2. (b)  procedures for avoiding overlap between properties at issue in these consolidated Cases and properties at issue in Case No. A15 (II:A);

   3. (c)  further proceedings in these consolidated Cases, including the schedule for further submissions by the Parties:

   4. (d)  any other procedural issues relating to these consolidated Cases that the Parties or the Tribunal may wish to raise at the Pre–Hearing Conference.

The Islamic Republic of Iran and United States of America, Case Nos. A3, A8, A9, A14 and B16, Full Tribunal, Order of 3 Dec 1992.

On March 1993, the Respondent filed “Respondent’s Rebuttal Brief on the Issue of Claimant’s Dominant and Effective Nationality”. Both Parties having now filed their rebuttals, the Tribunal takes note of the Claimant’s request for “oral argument on the issue of the dominant and effective nationality” contained in her submission, filed on 31 October 1991, and in accordance with Article 15, paragraph 2 of the Tribunal Rules, orders as follows:

(p. 63)

The Parties are requested to appear before Chamber One of the Tribunal for a Hearing, restricted to the issue of the Claimant’s dominant and effective nationality, which is scheduled to take place on 11 June 1993 at Parkweg 13, The Hague, starting at 9:30 a.m.

Ninni Ladjevardi (formerly Burgel) and The Islamic Republic of Iran, Case No. 118, Chamber One, Order of 24 Mar 1993.

1. 56.  The Tribunal concludes that Article 15, paragraph 2 is primarily applicable to the situation where there has not yet been a hearing and one of the parties requests one. The right of the parties to request a hearing under Article 15, paragraph 2 is not, however, an absolute right. For example, in World Farmers Trading, Inc. and Government Trading Corporation, et al., Award No. 428–764–1 (7 July 1989), reprinted in 22 Iran-U.S. C.T.R. 204, 209, the Tribunal held that although Article 15, paragraph 2 of the Tribunal Rules states that a party may request a hearing “at any stage of the proceedings,” “[t]his provision should be interpreted, in light of the particular circumstances of each case, to mean that Hearings are to be held upon the reasonable request of a party made at an appropriate stage of the proceedings.” This interpretation of Article 15, paragraph 2 was followed in Tchacosh Company, Inc., et al. and The Government of the Islamic Republic of Iran, et al., Award No. 540–192–1, para 21 (9 December 1992), reprinted in 28 Iran-U.S. C.T.R. 37, 380, in which the Tribunal refused to grant the claimant’s request for a hearing, saying that the request had not been made at an “appropriate time” because it was made more than one year after the Tribunal had informed the Parties of its intention to take a decision on jurisdiction on the basis of the written evidence before it.

2. 57.  Thus even where no hearing has been held, Article 15, paragraph 2 does not oblige the Tribunal to accede to any request by a party for a hearing. The applicable criteria in evaluating each request are whether the request is both reasonable and made at an appropriate stage of the proceedings. In a context such as the present, where a Hearing has already been held, the reasonableness of the request and the appropriateness of the timing become even more important because the disruption of the arbitral process is that much greater and because the parties have already had an extensive opportunity to present their cases.

3. 58.  For the foregoing reasons, the Tribunal does not consider Article 15, (p. 64) paragraph 2 to be capable of justifying the reopening of the Hearing in the present situation.

Dadras International, et al. and Islamic Republic of Iran, et al., Award No. 567–213/215–3 (7 Nov 1995), reprinted in (1995) 31 Iran-US CTR 127, 143 (footnotes omitted).

(1)  Article 15(1) –general

1. 1.5  In the specific context of a NAFTA arbitration where the parties have agreed to operate by UNCITRAL Rules, it is an overriding principle (Article 15) that the parties be treated with equality. The other NAFTA Parties do not, so far as the Tribunal has become aware, have domestic law that would permit or requires them to withhold documents from Chapter 11 Tribunals without any justification beyond a simple certification that they are some kind of state secret. In these circumstances, Canada, if it could simply rely on s. 39 [of the Canada Evidence Act], might be in an unfairly advantaged position under Chapter 11 by comparison with the United States and Mexico.

Pope & Talbot Inc. and The Government of Canada, Decision on Privileges (NAFTA Chapter Eleven, 6 Sep 2000), at 2–3, available at http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-en.asp.

1. 193.  As noted, during the course of discovery in this proceeding, Canada objected to producing certain items on the ground that, as Privy Council documents, their disclosure was prohibited by the Canada Evidence Act. The Tribunal rules that that Act by its terms did not apply to a Chapter 11 tribunal, and Canada did not contest that ruling. However, it nonetheless refused to produce or even identify the documents in order to permit the Tribunal to make a reasoned judgment as to their relevance and materiality. In the result, this refusal did not appear prejudicial to the Investor, and the Tribunal proceeded upon the basis of the materials actually before it. However, the Tribunal deplores the decision of Canada in this matter. As the Tribunal noted in its decision on this matter dated September 6, 2000, Canada’s position could well be a derogation from the “overriding principle” found in Article 15 of the UNCITRAL Arbitration Rules, under which these proceedings have been conducted, that all (p. 65) Parties should be treated with equality. Moreover, Article 115 of NAFTA declares that there shall be “equal treatment among investors of the Parties.” As Canada’s refusal to disclose or identify documents in these circumstances is at variance with the practice of other NAFTA Parties, at least of the United States, that refusal could well result in a denial of equality of treatment of investors and investments of the Parties bringing claims under Chapter 11.

Pope & Talbot Inc. and The Government of Canada, Award on the Merits of Phase 2 (NAFTA Chapter Eleven, 10 Apr 2001), (No. 4, 2001) 13 WTAM 61, 153.

1. 20.  … Methanex seeks confirmation that it is not now required to produce all evidence on which the presentation of its case on the merits will rely, thereby foreclosing the development and presentation of additional evidence at a later stage. Methanex also seeks clarification as to whether it is required to produce “essentially final reports from all its experts” within the ninety day time limit imposed by the Tribunal; and it seeks confirmation now that the Tribunal is not planning to proceed directly to a hearing on the merits.

2. 21.  It is difficult for the Tribunal to follow Methanex’s apparent difficulties. As the Partial Award states in Paragraph 163 (page 69), Methanex must file with its fresh pleading copies of all evidential documents on which it relies. This direction is clear both as to the ambit of the evidence required (“as regards the USA’s alleged liability”; but “we exclude evidential materials relating to the alleged quantum”) and the extent (“all evidential documents”). Similarly there is no ambiguity with respect to the Tribunal’s direction on the submission of expert reports, and there is no suggestion that these should be draft reports or reports that are otherwise incomplete: see Paragraphs 163 and 165 of the Partial Award (pages 69 & 70).

3. 22.  Nonetheless, insofar as Methanex may find insuperable difficulty in complying with the ninety day limit imposed by the Partial Award, it remains open to Methanex to seek an extension of that deadline from the Tribunal. Moreover, if for good cause shown, Methanex is unable timeously to complete its filing of all relevant evidential materials, it remains equally open to Methanex to seek dispensation from the Tribunal in regard to missing materials; e.g. an outstanding application against a third person under 18 (p. 66) U.S.C. § 1782 28 (if applicable), as raised at page 6 of Methanex’s letter.

4. 23.  It is the Tribunal’s intention, both in the Partial Award and now, that Methanex and its legal advisers should have the best opportunity to advance Methanex’s best case. It is not the Tribunal’s intention to deprive either Disputing Party of its procedural rights under Article 15(1) of the UNCITRAL Arbitration Rules, or otherwise. However, as regards Methanex’s present exercise, given the long history of this arbitration (on which Methanex rightly comments at page 7 of its letter), that can only be a reasonable opportunity. There must therefore be a reasonable deadline. In all the circumstances, from the Tribunal’s current perspective, ninety days is a reasonable period of time. It could be extended by the Tribunal if necessary; but an extension should be sought by means of a reasoned application to the Tribunal and not by a request for interpretation of the Partial Award.

5. 24.  There is no suggestion in the Partial Award that if, at a later stage Methanex sought to submit further relevant evidence, it would be debarred automatically from doing so–nor could there be. This would be a matter for consideration by the Tribunal in the future, if and when that issue arose and after hearing both Disputing Parties.

Methanex Corporation and United States of America, Letter from the Tribunal to the Parties (NAFTA Chapter Eleven, 25 Sep 2002), at 9–10, available at http://www.state.gov/s/l/c3439.htm.

(2)  Article 15(1) – Amicus submissions

1. 24.  … In the Tribunal’s view, there is nothing in either the UNCITRAL Arbitration rules or Chapter 11, Section B, that either expressly confers upon the Tribunal the power to accept amicus submissions or expressly provides that the Tribunal shall have no such power.

2. 25.  It follows that the Tribunal’s powers in this respect must be inferred, if at all, from its more general procedural powers. In the Tribunal’s view, the Petitioner’s requests must be considered against Article 15(1) of the UNCITRAL Arbitration Rules; and it is not possible or appropriate to look elsewhere for any broader power or jurisdiction.

3. 26.  Article 15(1) of the UNCITRAL Arbitration Rules grants to the Tribunal a broad discretion as to the conduct of this arbitration, subject always to the requirements of procedural equality and (p. 67) fairness towards the Disputing Parties. It provides, broken down into numbered sub–paragraphs for ease of reference below, as follows:

   “[1] Subject to these Rules, [2] the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, [3] provided that the parties are treated with equality and that at any stage in the proceedings each party is given a full opportunity of presenting its case.”

   This provision constitutes one of the essential “hallmarks” of an international arbitration under the UNCITRAL Arbitration Rules, according to the travaux préparatoires. Article 15 has also been described as the “heart” of the UNCITRAL Arbitration Rules; and its terms have since been adopted in Article 18 and 19(2) of the UNCITRAL Model Law on International Commercial Arbitration, where these provisions were considered as the procedural “Magna Carta” of international commercial arbitration. Article 15(1) is plainly a very important provision.

   [The Tribunal turned to the issue of “whether the Tribunal’s acceptance of amicus submissions falls within the general scope of the sub–paragraph numbered [2] of Article 15(1)”]

4. 28.  In addressing this issue, there are four principal matters to be considered:

   1. (i)  whether the Tribunal’s acceptance of amicus submissions falls within the general scope of … Article 15(1);

   2. (ii)  if so, whether the acceptance of amicus submissions could affect the equal treatment of the Disputing Parties and the opportunity of each to present its case, under … Article 15(1);

   3. (iii)  whether there are any provisions in Chapter 11, Section B, of NAFTA that modify the application of Article 15(1) for present purposes;

   4. (iv)  whether other provisions of the UNCITRAL Rules likewise modify the application of Article 15(1) in regard to this particular case, given the introductory words … of Article 15(1).

It is convenient to consider each matter in turn.

(i)  The General Scope of Article 15(1) of the UNCITRAL Arbitration Rules

1. 29.  The Tribunal is required to decide a substantive dispute between the Claimant and the Respondent. The Tribunal has no mandate (p. 68) to decide any other substantive dispute or any dispute determining the legal rights of third persons. The legal boundaries of the arbitration are set by this essential legal fact. It is thus self–evident that if the Tribunal cannot directly, without consent, add another person as a party to this dispute or treat a third person as a party to the arbitration or NAFTA, it is equally precluded from achieving this result indirectly by exercising a power over the conduct of the arbitration. Accordingly, in the Tribunal’s view, the power under Article 15(1) must be confined to procedural matters. Treating non–parties as Disputing Parties or as NAFTA Parties cannot be matters of mere procedure; and such matters cannot fall within Article 15(1) of the UNCITRAL Rules.

2. 30.  However, in the Tribunal’s view, its receipt of written submissions from a person other than the Disputing Parties is not equivalent to adding that person as a party to the arbitration…

3. 31.  The Tribunal considers that allowing a third person to make an amicus submission could fall within its procedural powers over the conduct of the arbitration, within the general scope of Article 15(1) of the UNCITRAL Arbitration Rules. The wording of … Article 15(1) suffices, in the Tribunal’s view, to support its conclusion; but its approach is supported by the practice of the Iran-US Claims Tribunal and the World Trade Organisation.

[The Tribunal’s discussion of the practice of these institutions, as well as that of the International Court of Justice, has been omitted.]

(ii)  Safeguarding Equal Treatment

1. 36.  However, at least initially, the burden in meeting the Petitioners’ written submissions would be shared by both Disputing Parties; and moreover, that burden cannot be regarded as inevitably excessive for either Disputing Party. As envisaged by the Tribunal, the Petitioners would make their submissions in writing, in a form and subject to limitations decided by the Tribunal. The Petitioners could not adduce the evidence of any factual or expert witness; and it would not therefore be necessary for either Disputing Party to cross–examine a witness proffered by the Petitioners: there could be no such witness. As to the contents of the Petitioners’ written submissions; it would always be for the Tribunal to decide what weight (if any) to attribute to those submissions. Even if any part of those submissions were arguably to constitute written (p. 69) “evidence”, the Tribunal would still retain a complete discretion under Article 25.6 of the UNCITRAL Arbitration Rules to determine its admissibility, relevance, materiality and weight. Of course, if either Disputing Party could not then complain at that burden: it was always required to meet its opponent’s case; and that case, however supplemented, can form no extra unfair burden or unequal treatment.

2. 37.  It would always be the Tribunal’s task, assisted by the Disputing Parties, to adopt procedures whereby any burden in meeting written submissions from a Petitioner was mitigated or extinguished. In theory, a difficulty could remain if a point was advanced by a Petitioner to which both Disputing Parties were opposed; but in practice, that risk appears small in this arbitration. In any case, it is not a risk the size or nature of which should swallow the general principle permitting written submissions from third persons. Accordingly, whilst there is a possible risk of unfair treatment as raised by the Claimant, the Tribunal is aware of that risk and considers that it must be addressed as and when it may arise. There is no immediate risk of unfair or unequal treatment for any Disputing Party or Party.

(iii)  Relevant Provisions in Chapter 11, Section B, of NAFTA

(iv)  Other UNCITRAL Rules

1. 40.  The Claimant’s reliance on Article 25(4) of the UNCITRAL Arbitration Rules to the effect that hearings are to be held in camera is not relevant to the Petitioners’ request to serve written submissions to the Tribunal. In the Tribunal’s view, there are no further provisions under the UNCITRAL Arbitration Rules that modify the application of its general power under Article 15(1) to allow the Petitioners to make such submissions in this arbitration.

2. 41.  However, the Claimant’s reliance on Article 25(4) is relevant to the Petitioners’ request to attend hearings and to receive copies of all submissions and materials adduced before the Tribunal. [The Tribunal declined to grant Petitioners these rights because the Parties had not consented in this regard pursuant to Article 25(4).] Article 25(4) provides that: “[Oral] Hearings shall be held in camera unless the parties agree otherwise …”. The phrase “in camera ” is clearly intended to exclude members of the public, i).e. non–party third persons such as the Petitioners. As the travaux préparatoires disclose, the UNCITRAL drafting committee deleted a different provision in an earlier draft which could have allowed (p. 70) the arbitration tribunal to admit into an oral hearing persons other than the parties. However, as discussed further below, Article 25(4) relates to the privacy of the oral hearings of the arbitration; and it does not in like terms address the confidentiality of the arbitration.

3. 42.  As to privacy, the Respondent has accepted that, as a result of Article 25(4), hearings are to be held in camera unless both Disputing Parties consent otherwise. The Respondent has given such consent. The Claimant has given no such consent. The Tribunal must therefore apply Article 25(4); and it has no power (or inclination) to undermine the effect of its terms. It follows that the Tribunal must reject the Petitioners’ requests to attend oral hearings of the arbitration.

4. 43.  As to confidentiality, the Tribunal notes the conflicting legal materials as to whether Article 25(4) of the UNCITRAL Arbitration Rules imposes upon the Disputing Parties a further duty of confidentiality (beyond privacy) in regard to materials generated by parties within the arbitration…

5. 46.  This is however a difficult area; and for the present purposes, the Tribunal does not have to decide the point. Confidentiality is determined by the agreement of the Disputing Parties as recorded in the Consent Order regarding Disclosure and Confidentiality, forming part of the Minutes of Order of the Second Procedural meeting of 7th September 2000. As amici have no rights under Chapter 11 of NAFTA to receive any materials generated within the arbitration (or indeed any rights at all), they are to be treated by the Tribunal as any other members of the public…

(v)  The Tribunal’s Conclusion

1. 47.  Power: The Tribunal concludes that by Article 15(1) of the UNCITRAL Arbitration Rules it has the power to accept amicus submissions (in writing) from each of the Petitioners, to be copied simultaneously to the legal representatives of the Disputing Parties, Canada and Mexico… The Tribunal also concludes that it has no power to accept the Petitioners’ requests to receive materials generated within the arbitration or to attend oral hearings of the arbitration. Such materials may however may be derived from the public domain or disclosed into the public domain within the terms of the Consent Order regarding Disclosure and Confidentiality, or otherwise lawfully; but that is a quite separate matter outwith the scope of this decision.

(p. 71)

(vi)  The Tribunal’s Order

1. 53.  For the reasons set out above, pursuant to Article 15(1) of the UNCITRAL Arbitration Rules, the Tribunal declares that it has the power to accept amicus written submissions from the Petitioners.

Methanex Corporation and The United States of America, Decision on Petitions from Third Persons to Intervene as Amici Curiae (NAFTA Chapter Eleven, 15 Jan 2001), reprinted in (2001) 13(3) WTAM 97, 109–11, 114–15, 118–20.

[The Tribunal’s discussion of the general nature of Article 15(1) in paragraphs 37 to 39 is omitted.]

The Tribunal’s opinion and conclusion on the participation of amici curiae

1. 59.  The submission by Mexico raises a threshold issue: does the Tribunal have any power at all to allow third parties to participate in these proceedings? The Tribunal has already ruled that they cannot participate as parties to the proceedings. But is a less, amicus curiae role, permitted?

2. 60.  As all those making submissions agree, the answer is to be found in the powers conferred by article 15(1), read of course in its context. Those powers are limited to matters of procedure and they are constrained by other relevant rules and NAFTA provisions and by the principles of equality and fairness. They cannot be used to turn the dispute the subject of the arbitration into a different dispute, for instance by adding a new party to the arbitration. Rather, the powers are to be used to facilitate the Tribunal’s process of inquiry into, understanding of, and resolving, that very dispute which has been submitted to it in accordance with the consent of the disputing parties.

3. 61.  Is it within the scope of article 15(1) for the Tribunal to receive submissions offered by third parties with the purpose of assisting the Tribunal in that process? The Tribunal considers that it is. It is part of its power to conduct the arbitration in such manner as it considers appropriate. As the Methanex Tribunal said, the receiving of such submissions from a third person is not equivalent to making that person a party to the arbitration. That person does not have any rights as a party or as a non–disputing Party. It is not participating to vindicate its rights. Rather, the Tribunal has exercised its power to permit that person to make the submission. It is a matter of its power rather than of third party right. The rights of the disputing Parties is not altered (although in exercise of (p. 72) their procedural rights they will have the rights to respond to any submission) and the legal nature of the arbitration remains unchanged.

4. 63.  We consider that article 15(1) supports a power to allow submissions by amici curiae.

5. 64.  In support of that conclusion, we call attention to the practice mentioned by the Methanex Tribunal of the Iran-US Claims Tribunal and the WTO Appellate Body which supports a power (but not a duty) to receive third party submission: Iran v. United States case A/15 Award No. 63–A/15–FT; 2 Iran-US CTR 40, 43; and Hot Rolled Lead and Carbon Steel, order of the Appellate Body of the WTO. It is true that in contentious cases in the International Court of Justice only states and in certain circumstances public international organizations may have access to the Court (the latter only to provide information relevant to cases before it.) But that limit appears to result directly from the wording of articles 34, 35 and 61–64 of the Statute of the Court which carefully regulate those matters as well as from the practice under them extending over several decades; see Shabtai Rosenne The Law and Practice of International Court, 1920–1966 (1997) chs 10 and 26.

   Relevant provisions of NAFTA and the UNCITRAL Rules

6. 67.  The relevant provision of the UNCITRAL rules to which attention is given in the submissions is article 25(4) under which hearings are in camera unless the parties agree otherwise. They have not so agreed. The provision does not however prevent the Tribunal receiving written submissions. But it does prevent third parties or their representatives attending the hearings in the absence of both parties agreeing.

7. 68.  Next there is the difficult question of the confidentiality of the pleadings and other documents generated in the course of the proceeding … The privacy of the hearing is perhaps to be distinguished from the confidentiality or availability of documents. Under Chapter 11 and the UNCITRAL Rules provision is made for the communication of pleadings, documents and evidence to the other disputing party, the other NAFTA Parties, the Tribunal and the Secretariat–and to no one else. The matter is also subject to any agreement between the parties or order in respect of confidentiality…

(p. 73)

The requirement of equality and of the full opportunity of parties to present their case

1. 69.  The requirement of equality and the parties’ right to present their cases do limit the power of the Tribunal to conduct the arbitration in such manner as it considers appropriate. That power is to be used not only to protect those rights of the parties, but also to investigate and determine the matter subject to arbitration in a just, efficient and expeditious manner. The power of the Tribunal to permit amicus submissions is not to be used in a way which is unduly burdensome for the parties or which unnecessarily complicates the Tribunal process. The Tribunal envisages that it will place limits on the submissions to be made in writing in terms for instance of the length. The third parties would not have the opportunity to call witnesses (given the effect of article 25(4)) with the result that the disputing parties would not face the need to cross–examine them or call contradictory evidence. The parties would also be entitled to have the opportunity to respond to any such submissions.

   The Tribunal’s assessment

2. 70.  The Tribunal returns to the emphasis which the petitioners, with considerable cogency, have placed on the important public character of the matters in issue in this arbitration and on their own real interests in these matters. It recalls as well the emphasis placed on the value of greater transparency for proceedings such as these. Such proceedings are not now, if they ever were, to be equated to the standard run of international commercial arbitration between private parties…

3. 71.  The Tribunal does not consider that among the matters on which it is appropriate for the Petitioners to make submissions are questions of jurisdiction and the place of arbitration. On both, the parties are fully able to present the competing contentions and in significant degree have already done so. In any event it is for the respondent to take jurisdictional points and the parties themselves have the power to fix the place of arbitration by agreement between them. The Tribunal does not consider that any other procedural matters of which it is award should be the subject of amicus submissions.

4. 72.  The circumstances and the detail of the making of any amicus submissions would be the subject of consultation with the parties.

(p. 74)

United Parcel Service of America Inc. and Government of Canada, Decision on Petitions for Intervention and Participation as Amici Curiae (NAFTA Chapter Eleven, 17 Oct 2001) at 24–28, reprinted in (2002) 14(1) WTAM 41, 64–68.

(1)  Selection of the place of arbitration– Article 16(1)

(p. 94) (2)  Selection of the particular locale, special meetings for consultation and the hearing of witnesses

The selection of the place of arbitration in accordance with Article 16(1) denotes the determination of the chosen jurisdictional area with all its legal and practical consequences. This may be defined by reference only to the country or other distinct jurisdiction (e.g. the State of New York or Province of British Columbia) in question; it also may be specified by naming the city and even the exact locality therein. The specification of a locale, however, does not entail specific legal consequences in addition to those flowing from the choice of the broader jurisdictional area.²²⁴ It can conveniently be left to the arbitral tribunal, even in those cases in which the parties determine the place of arbitration.²²⁵ With a view to such cases, Article 16(2) of the Rules provides that “[t]he arbitral tribunal may determine the locale of the arbitration within the country agreed upon by the parties.”²²⁶

Should the home country of one of the parties be chosen as the place of arbitration, the tribunal should avoid holding the arbitral proceedings at the office of the party²²⁷ or of a party–appointed arbitrator.²²⁸ The premises of the law firm of the chairman may be a natural locale, if available and otherwise suitable for the purpose. The premises of an arbitral institution situated within the designated jurisdictional area may also be desirable. Facilities provided by big hotels are often utilized for this purpose.

The Iran-US Claims Tribunal was initially housed in The Hague at the Peace Palace where both the International Court of Justice and the Permanent Court of Arbitration are located. Even after the Tribunal had rented its own building in The Hague, certain hearings requiring larger facilities were held at the Peace Palace.

(p. 95) Designation of the locale in essence determines where the main oral proceedings, i.e., hearing and pre–hearing conferences, if any, are held. Meetings for the purposes of hearing witness testimony and deliberations by the arbitrators (“consultation among … members”) can be arranged, according to Article 16(2), at any place the arbitral tribunal considers “appropriate, having regard to the circumstances of the arbitration.” This option may mitigate practical inconveniences caused by selecting the place of arbitration primarily on the basis of the legal consequences, and may minimize the overall costs of the arbitration. Emphasis on such circumstances is intended to reduce the temptation to choose “attractive meeting places such as the Riviera or the Bahamas which have no relationship whatsoever with the arbitration or the domicile of arbitrators.”²²⁹ In exceptional cases, circumstances may compel the arbitral tribunal to move the physical venue of the proceedings from the designated place of arbitration, such as when a party engages in inappropriate conduct at the legal seat of arbitration designed to undermine the work of the tribunal.²³⁰

It should be noted that, both in light of its wording and the travaux préparatoires, Article 16, including paragraph 3,²³¹ provides only for “limited flexibility”²³² to hold meetings outside the place and locale of the arbitration. Article 20(2) of the UNCITRAL Model Law²³³ deliberately increased this (p. 96) flexibility in sharp contrast to Article 16 of the UNCITRAL Rules. In the Model Law, the hearing of “experts or the parties” was added to the list of purposes for which the arbitral tribunal may meet “at any place it considers appropriate.”²³⁴ In accordance with Article 1(1) of the UNCITRAL Rules, the parties may modify Article 16 in keeping with the more liberal approach of the Model Law. When contemplating this kind of modification, however, the parties should be aware that very loose ties between the formal place of arbitration and the actual proceedings may, depending on the nature of the domestic laws involved, have negative repercussions.²³⁵

When an arbitral tribunal, with its seat in one country, visits another country for the purpose of a particular proceeding, it should respect the laws of the latter country. If, for example, the purpose of the visit is to take witness evidence, the tribunal should follow the mandatory provisions concerning the taking of such evidence in that country.²³⁶

(3)  Special meetings for the inspection of goods, other property or documents

According to Article 16(3), the arbitral tribunal may hold meetings “for the inspection of goods, other property or documents” at any place considered appropriate by that tribunal. In many cases, this provision is not only useful but essential. It may, for instance, be impossible as well as impractical to transfer items such as goods stored in a warehouse to the tribunal locale. Similarly, it may be necessary for an arbitral tribunal having its seat in a neutral country to visit the site in another country.²³⁷

Any inspection of goods, property and documents must take place in accordance with the mandatory norms of the law of the place where the goods are situated.

Article 16(3) also provides that the parties shall be given an opportunity to be present at any inspection of which they also have to be given “sufficient (p. 97) notice.” With regard to such notice, it would be wise to apply the same principles concerning notice of the hearing.²³⁸ By accepting Article 16(3) without modification, the party with control over the goods to be inspected is generally understood to waive any right to deny access to the goods.

The members of the Iran-US Claims Tribunal have not made any on–site inspections.²³⁹

(4)  Where the award shall be made

Article 16(4) provides that “[t]he award shall be made at the place of arbitration.” This provision must be read in light of the question discussed in connection with Article 16(1), concerning the enforcement of awards. The travaux préparatoires of the UNCITRAL Rules explain that

Paragraph 4 of this article is useful, since, when issues arise concerning the enforceability of arbitral awards, reference is on some occasions made to the national law of the place of arbitration and on other occasions to the national law of the “country where the award was made” (see, e.g. Article V, paragraph 2, subparagraphs (a), (d) and (e) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.²⁴⁰

Article 16(4) not only equates the place “where the award is made” with the “place of arbitration,” but also ensures that the award is made at the place of arbitration, even though the tribunal may have met elsewhere. The risk of different national laws being applied to the procedure, and the consequential complications at the stage of challenge or enforcement, is thereby reduced.²⁴¹

Does Article 16(4) require that the arbitrators travel to the place of arbitration just for a signing ceremony? On the one hand, it may be most convenient to have the award circulated from one arbitrator to another for signing.²⁴² On the other hand, the clear wording of Article 16(4) (“shall be made at the place”), especially when compared to that of Article 31(3) of the UNCITRAL Model Law, discussed below, can be construed to require the signing (p. 98) at the place of arbitration.²⁴³ The travaux préparatoires do not provide for a conclusive answer, although the preponderant view seems to have been that signing at the place is not required by the rule which later became Article 16(4).²⁴⁴ In view of the uncertainty, the importance “of signing the award (or at least deeming it to have been ‘made’) at the seat of arbitration” has been emphasized.²⁴⁵ If the law applicable to the arbitration requires the signing at the place where the award is deemed to be made,²⁴⁶ it is especially important that the arbitrators meet there. The award, of course, can be drafted elsewhere.

Where the applicable procedural law does not prevent the award from being signed outside the place of arbitration,²⁴⁷ the parties may consider modifying Article 16(4) to provide the arbitrators wider discretion. For example, the provision in question could be modeled on Article 31(3) of the UNCITRAL Model Law. According to Article 31(3), “[t]he award shall be deemed to have been made” at the place of arbitration. In any case, the award should always state that it has been made at the place of arbitration.²⁴⁸ In the practice of the Iran-US Claims Tribunal, awards have occasionally been signed by one or more arbitrators outside The Hague. The signatures of the arbitrators are nevertheless always preceded by the words: “Dated, The Hague” (the date).