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Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.16 Further Written Statements and Time Limits on Submission

From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)

David D Caron, Lee M Caplan

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 15 April 2021

Subject(s):
Settlement of disputes — Conduct of proceedings — Arbitral tribunals

(p. 490) (p. 491) Chapter 16  Further Written Statements and Time Limits on Submission

1. Introduction

By the time of the final hearing, the issues to be determined should be well defined, and the facts and arguments should be elaborated in writing. The statement of claim and the statement of defence do not necessarily suffice for this purpose. Article 24 provides for the possibility of requiring further written statements from the parties. Article 25 deals with the time limits to be fixed for the submission of various written statements, including the statement of claim and the statement of defence.

2. Further Written Statements—Article 24

A. Text of the 2010 UNCITRAL Rule1

Article 24 of the 2010 UNCITRAL Rules provides:

The arbitral tribunal shall decide which further written statements, in addition to the statement of claim and the statement of defence, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.

(p. 492) B. Commentary

(1)  General comments

Article 24 grants the arbitral tribunal discretion to order or authorize the submission of further written statements.2 The arbitral tribunal may use its discretion to initiate actions independently, or at the request of any of the parties,3 taking into account the specific needs of the particular arbitration. A pre-hearing conference or similar preliminary meeting can be arranged to provide the tribunal with an opportunity to evaluate such needs in direct consultation with the parties.4 Typically, the tribunal's decisions on the need for further written statements should be reflected in the provisional timetable, required in accordance with Article 17(2), though new developments in the arbitration also may require changes in scheduling or additional rounds of pleadings.

In a relatively simple arbitration, there may be no need for written statements other than the statements of claim and defence. This, however, normally presupposes not only that the hearing allows sufficient time for both parties to elaborate their cases, but also that the documentary evidence relied on has been submitted in connection with the submission of the statement of claim and the statement of defence. In most international arbitrations, further written statements are likely to be useful, unless the case is disposed of on jurisdictional or other preliminary grounds.5 Therefore, arrangements should be made for a second round of written pleadings, consisting of a reply (réplique) by the claimant to the statement of defence (and any counterclaim) and a rejoinder (duplique) by the respondent to the reply.6 In view of the fact that under the UNCITRAL Rules both the statement of claim and the statement of defence may be concise in nature,7 the arbitral tribunal may not merely order the parties to answer the points raised in the adversary's first written statement. Rather, the tribunal may schedule time for a second round of comprehensive “memorial” (claimant) and “counter-memorial” (respondent) statements containing elaborate (p. 493) legal argumentation,8 combined with the submission of documentary evidence, expert reports, and the like.9

A two-round exchange of written pleadings is thus quite often advisable; a third round may be added, depending on the particular circumstances of the case. If a very substantial oral hearing is contemplated, the tribunal may dispense with further scheduling of written statements. If, on the other hand, the time allotted for the hearing is limited or no hearing at all is envisaged,10 a third round of written statements consisting of rebuttal memorials or briefs may be in order. A three-stage or even four-stage schedule has been applied in many cases by the Iran–US Claims Tribunal, whose case load does not permit long hearing sessions.11 Proceedings before investor–state tribunals may also require additional rounds of submissions to allow for participation by non-disputing state parties12 or non-party amicus curiae.13

Further rounds of written statements of a general nature are likely to be redundant.14 Thus “[i]t has been the established practice of the Iran-US Claims Tribunal to close the exchange of written pleadings after the submission of Memorials in Rebuttal.”15 Special situations may, however, warrant granting the parties an opportunity to file further written statements or comments on some particular issue(s).

Examples of such situations include amendments made to the claim or defence,16 requests for interim measures by one of the parties,17 the appointment of an expert and the determination of his terms of reference, or objections to the production of documents or with respect to the testimony of a witness.18 There may also be jurisdictional issues or preliminary objections (“dilatory pleas”),19 the practical handling of which calls for separate (p. 494) briefing before the exchange of written statements of a more general nature.20 The fundamental principle of party equality may occasionally necessitate allowing the parties to submit post-hearing memorials or briefs. This may be the case where new arguments or evidence has been submitted, and admitted, by the tribunal on the very eve of or at the hearing, or where the time allotted for the hearing has proved to be too short for comprehensive treatment of all aspects of the case.21 As the orderly conduct of the proceedings is, however, another important consideration in arbitration, a predisposition against post-hearing submissions is appropriate.22 The general rule, as emphasized by the Iran–US Claims Tribunal, is that “no party shall submit any document for the first time at the Hearing, or so shortly before the Hearing that the other party cannot respond to it in an appropriate way.”23

Article 24 deals with “written statements,” ie, pleadings and legal argumentation, as distinct from documentary evidence.24 Efficient management of the arbitration proceedings may, however, make it desirable to have documentary evidence and written statements submitted together in one complementary package. The memorial and counter-memorial may be scheduled for filing together with documentary evidence,25 as has been the common practice of the Iran–US Claims Tribunal26 and other tribunals.27

(p. 495) Whatever the approach taken, the arbitral tribunal must always state clearly what kind of submission it expects.28

In case voluminous submissions containing documentary evidence are expected, the arbitral tribunal should facilitate the later handling of the documents, for example, by instructing the parties to use tabs or exhibit numbers for the identification of the documents.29

Article 24 concludes with the provision that the arbitral tribunal “shall fix the periods of time for communicating such statements.” Time limits will be discussed in connection with Article 25. Nevertheless, a relevant question here is whether the tribunal should order written statements to be submitted simultaneously or successively. The preceding discussion has already implied that the latter is preferable, “so that the claimant fires the first shot and the respondent answers.”30 As Mani points out, “where the plaintiff-defendant relationship is discernible simultaneous presentation is illogical in that it requires the defendant to produce a complete defence without knowing fully in advance of the arguments of the claimant.”31 Though this statement was made primarily with a view to pleadings discharged in a single round, it applies in principle to pleadings that take place in more than one exchange. Where, however, there has already been a substantial exchange of successively submitted pleadings, the simultaneous communication of final rebuttals (in a third or fourth round) may be a proper method to avoid delays with due respect for the equality of the parties. In the earlier practice of the Iran–US Claims Tribunal, the sequential exchange of statements of claim and defence, replies and rejoinders, as well as memorials and counter-memorials, was often followed by the simultaneous filing of rebuttals.32 Later, however, the practice was to allow the respondent to file the final rebuttal submission.33

Apart from rebuttals, simultaneous submission of written statements may be proper in those exceptional cases in which a clear claimant–respondent relationship is lacking, or where none of the parties agrees to be treated as a respondent.34 Simultaneous filings should also be ordered if the parties so wish.35 When ordering simultaneous pleadings, the arbitral tribunal should ensure that a party who intentionally withholds its own submission until it has been able to study that of its adversary obtains no unfair advantage thereby.36

(p. 496) The UNCITRAL Model Law contains no provision corresponding to the present Article 24. Such a provision is indeed more properly covered by a set of arbitration rules than by a law on arbitration.

(2)  Comparison to the 1976 UNCITRAL Rules

Article 24 was adopted without any revision to corresponding Article 22 of the 1976 UNCITRAL Rules.

C. Extracts from the Practice of Investment Tribunals

Karaha Bodas Co LLC and Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, et al, Preliminary Award (September 30, 1999) (Ad Hoc Proceeding, 1976 UNCITRAL Rules, Concession Agreement), at 10–11:

The Arbitral Tribunal has,

  1. 4. Fixed the procedural time table applicable until the issuing of the preliminary award as follows:

    • •  the Defendants will file a brief on the above referred preliminary issues by January 10, 1999 with all documents they are relying upon,

    • •  the Claimant will provide a reply within 45 days maximum from the receipt of the Defendant's brief, with all documents it is relying upon,

    • •  a hearing will then be held on March 10, 1999 in Paris.

  2. 5. Contemplated a provisional time table for the continuation of the procedure in case the Tribunal would retain its jurisdiction as follows:

    • •  the Claimant may, within one month from the rendering of the preliminary award, revise its Statement of Claim dated November 11, 1998,

    • •  the Defendants will then have two months to reply starting either from the receipt of the revised brief or from the notification by the Claimant that no revised brief will be filed,

    • •  the Claimant will submit a rebuttal to the reply of the Defendants within one month from receipt of that reply,

    • •  the Defendants will then submit a rejoinder to the Claimant's memorial within one month from receipt of that rebuttal.

With all these written statements, the parties are entitled to provide any further documentary evidence;

A hearing will then be held within one month after receipt of the last brief.

Methanex Corp and United States of America, Minutes of Order of First Procedural Meeting (June 29, 2000) (ICSID administered, 1976 UNCITRAL Rules, NAFTA Chapter Eleven), at 4:

Item 9: Pleadings

The Claimant shall re-serve on each member of the Tribunal copies of its Notice of Arbitration, its Statement of Claim of 3 December 1999 and accompanying schedule(s) as soon as practicable.

As regards service of further pleadings, as set out in their letter dated 29 June 2000 to the Tribunal, the parties agreed the following time-table:

Statement of Defence: 11 August 2000

Statement of Reply (if required): 28 August

Statement of Rejoinder (if required): 14 September

(The timing of any further written pleadings, under Articles 19, 20 and 22 of the [1976] UNCITRAL Arbitration Rules or otherwise, may be addressed at the Second Procedural Meeting or subsequent meetings).

(p. 497) Methanex Corp and United States of America, Minutes of Order of Second Procedural Meeting (September 7, 2000) (ICSID administered, 1976 UNCITRAL Rules, NAFTA Chapter Eleven), at 2:

The procedural time-table envisaged by the Tribunal at the meeting was subsequently modified at the request of the Disputing Parties, by further order of the Tribunal communicated by letter dated 10th October 2000 as follows:

  1. (1)  16 October 2000: Further written submissions of non-state petitioners for “amicus curiae” status;

  2. (2)  27 October 2000: Methanex and US written statements re (1);

  3. (3)  10 November 2000: Mexico and Canada written submissions as Non-Disputing State Parties re Article 1128 of Chapter Eleven of NAFTA (“Participation by a Party”); and

  4. (4)  22 November 2000: Methanex and US written submissions re (3) submissions from Mexico and Canada.

United Parcel Service of America, Inc and Government of Canada, Award on Jurisdiction (November 22, 2002) (ICSID administered, 1976 UNCITRAL Rules, NAFTA Chapter Eleven), at 40:

  1. 131. … Article 22 [of the 1976 UNCITRAL Rules] is also relevant, as both parties remind the Tribunal. It has the power to decide whether further written statements, in addition to the statements of claim and defence, should be required from the parties or presented by them.

Gami Investments Inc and Government of The United Mexican States, Procedural Order No 1 (January 31, 2003) (Ad Hoc Proceeding, 1976 UNCITRAL Rules, NAFTA Chapter Eleven), at 2–3:

  1. 5. Timetable for the Proceedings

  2. 5.1  The timetable for the proceedings shall be as follows:

    1. (a)  10 February 2003

      The Claimant shall file its Statement of Claim, together with witness statements, expert reports and such other documentary evidence that it relies upon.

    2. (b)  10 March 2003

      The Respondent shall file: (i) comments on whether the proceeding should be separated into different phases (bifurcation); and (ii) notification of any objections to jurisdiction and admissibility.

    3. (c)  8 April 2003

      The Respondent shall file its definitive submissions on its objections (if any) to jurisdiction and admissibility.

    4. (d)  8 May 2003

      The Claimant shall file its submission in reply to the Respondent's objections (if any) to jurisdiction and admissibility and shall reply to the Respondent's comments on bifurcation.

    5. (e)  22 May 2003

      The Arbitral Tribunal shall decide whether the Respondent's objections to jurisdiction and/or admissibility will be resolved separately as preliminary matters or be joined to the merits. If the former, the deadlines which follow shall be vacated.

    6. (f)  9 June 2003

      The Respondent shall file its Statement of Defence together with witness statements, expert reports and such other documentary evidence that it relies upon.

    7. (p. 498)
    8. (g)  8 July 2003

      The Claimant shall file its Reply to the Respondent's Statement of Defence together with any responsive witness statements, expert reports and documentary evidence.

    9. (h)  8 August 2003

      The Respondent shall file its Rejoinder to the Claimant's Reply together with any responsive witness statements, expert reports and documentary evidence.

  3. 5.2  At the latest following the conclusion of the written submissions referred to above, the Arbitral Tribunal shall fix dates for a status conference call with respect to the hearing and the possible exchange of post-hearing submissions, as well as possible submissions by other NAFTA Parties.

D. Extracts from the Practice of the Iran–US Claims Tribunal

Control Data Corp and Islamic Republic of Iran, Case No 88, Chamber Three, Order of December 20, 1985:

Having held the Pre-Hearing Conference in the Case on 17 December 1985 and taking into account the submissions of the Parties, the Tribunal decides as follows:

  1. 5. With respect to the further proceedings:

    1. a. By 30 April 1986, the Claimants shall file their memorial on all issues in this Case, including any and all written evidence they wish to rely on.

    2. b. By 30 September 1986, the Respondents shall file their memorials on all issues in this Case, including any and all written evidence they wish to rely on.

    3. c. By 1 December 1986, the Parties shall submit any brief and evidence in rebuttal.

    4. d. In setting these time-limits, the Tribunal has taken into consideration the multiplicity of the Respondents and the potential difficulties related to coordination of their submissions.

Cabot Intl Capital Corp and Overseas Private Investment Corp and Islamic Republic of Iran, Case No 96, Chamber One, Order of March 25, 1983:

Pre-Hearing Conference was held in this case on February 28, 1983. The Chamber sets forth the following as the schedule for further proceedings:

The Government of the Islamic Republic of Iran is granted until 1 June 1983 to file a Statement of Defence in this case.

11 April 1983: Claimants shall file a memorial on the question of whether OPIC is entitled to submit a claim in this case, including comments with respect to any laws governing insurance contracts which may be applicable. Claimants shall attach complete copies of the Contract of Insurance and the Settlement Agreement with OPIC. Claimants shall further file the documents and other written evidence on which they intend to rely, including affidavits of any experts and other witnesses, together with such summaries of evidence as they choose to submit.

10 June 1983: Respondents shall file the documents and other written evidence on which they intend to rely, including affidavits of any experts and other witnesses, together with such summaries of evidence as they choose to submit.

11 July 1983: Claimants shall file any rebuttal evidence they choose to submit in the light of Respondents’ submission.

9 September 1983: Respondents shall file any rebuttal evidence they choose to submit in the light of Claimants’ submissions.

7 October 1983: The parties shall file a list of witnesses, if any, through whom they intend to present oral evidence, pursuant to Article 25 of the Provisionally Adopted Tribunal Rules.

21–22 November 1983: The Parties are invited to appear at Parkweg 13, The Hague at 9.30 a.m. for the Hearing in this case.

(p. 499) American Bell Intl Inc and Islamic Republic of Iran, Award No 255–48–3 (September 19, 1986), reprinted in 12 Iran-US CTR 170, 172 (1986-III):

  1. 4. The Final Hearing was held on 9 and 10 October 1985. On 8 November 1985 Respondents submitted a Post-Hearing Memorial. This had been authorized by the Tribunal in view of the submission by Claimant on 30 September 1985 of its Counter-Memorial with extensive supporting documents the Farsi version of which, moreover, was not timely submitted.

Sterling Drug Inc and Islamic Republic of Iran, Case No 491, Chamber Three, Order of January 11, 1985:

The time for the Respondents to file any evidence in rebuttal is further extended to 15 February 1985.

In view of the fact that the simultaneous filing envisaged in the Order of 21 September 1984 has been derogated from, the Claimants are invited to inform the Tribunal within 3 weeks of the filing of Respondents’ rebuttals of any prejudice which may have resulted from the non-simultaneous filing.

On the basis of such information, the Tribunal will decide whether Claimants will be given an opportunity to comment on the rebuttals.

Varo Intl Corp and Islamic Republic of Iran, Case No 275, Chamber One, Order of March 13, 1986:

Each Party shall file with the Tribunal by 12 June 1986, copies of all written evidence on which it will seek to rely together with a list of all documentary evidence submitted by it in this Case and the location in the record (by tab or Exhibit number) of each such document. By the same date each Party may file a Hearing Memorial explaining the evidence and summarizing the issues in this case.

Each Party shall file by 12 September 1986 copies of any documentary evidence on which it will seek to rely in rebuttal of previously presented evidence together with a supplemental list of such rebuttal evidence and the location of each such document in the record.

In this context the Parties should bear in mind that the following consideration will apply once the Tribunal has scheduled a Hearing:

  1. 1. No new documents may be introduced in evidence prior to the Hearing unless the Tribunal so permits and unless the request for their introduction is filed at least two months before the Hearing.

  2. 2. At the Hearing, any Party is free to make any arguments it wishes, but new documents may not be introduced in evidence unless the Tribunal so permits, which permission will not normally be granted except for evidence in rebuttal of evidence introduced in the Hearing.

The guidelines for the translation of documentary evidence are attached to this Order.

United States of America on behalf and for the benefit of Harrington & Associates, Inc and Islamic Republic of Iran, Case No 10712, Chamber Three, Order of October 23, 1986:

  1. 1. Reference is made to the order dated 2 July 1986 extending the time limit for the Respondent to submit any further Statement or Brief until 8 September 1986, the submission filed by the Respondent on 25 September 1986 and the “Opposition To Respondent's Late Submission” filed on 30 September 1986 by the Agent of the United States.

  2. 2. The Tribunal notes that notwithstanding its Order of 2 July 1986, and the Hearing in this Case scheduled for 7 October 1986, the Respondent filed on 25 September 1986 a voluminous submission styled “Rejoinder of Iran Carton Company.”

  3. 3. At the Hearing on 7 October 1986, the Tribunal informed the Parties that it was prepared to consider the Respondent's late submission but that in order to avoid undue prejudice to the Claimant caused by the filing of such a voluminous submission so shortly before the (p. 500) Hearing date, it would permit the Claimant to submit its reply to this submission after the Hearing.

  4. 4. The Claimant is accordingly invited to submit its reply by 21 November 1986.

Fluor Corp, Fluor Intercontinental Inc and Islamic Republic of Iran, Case No 810, Chamber One, Order of February 16, 1987:

    1. a. The Claimants shall file by 30 May 1987 a Hearing Memorial together with copies of all written evidence on which they will seek to rely, together with a list of all documentary evidence submitted by them in this Case and its location in the record (by tab or Exhibit number).

    2. b. The Respondent, the National Iranian Oil Company, shall by 30 May 1987 file a Hearing Memorial with respect to the Counter-claim together with copies of all written evidence on which it will seek to rely together with a list of all documentary evidence submitted by it in this case and the location in the record (by tab or Exhibit number) of each such document.

    3. c. The Respondents shall file by 30 September 1987 a Response to the Memorial and evidence, referred to under paragraph 4 a., and the Claimants shall file by the same date their Response to the Memorial and the evidence, referred to under paragraph 4 b.

    4. d. The Tribunal, by further Order, will invite each Party to submit simultaneously a Memorial containing only its Comments on the Memorials of the other party submitted pursuant to Para 4(c), together with any evidence in support of such comments.

Harris Intl Telecommunications, Inc and Islamic Republic of Iran, Award No 323–409–1 (November 2, 1987), reprinted in 17 Iran-US CTR 31, 45–46 (1987-IV):

  1. 57. As noted in the discussion of the procedural history of this case, both Parties have submitted documents after the expiration of the filing deadlines established by the Tribunal's Order of 6 March 1986. At the Hearing, the Tribunal reserved its decision on the admissibility of these documents. The Tribunal now turns to an examination of this issue.

  2. 58. The starting point of the analysis must be the [1983] Tribunal Rules themselves. There are four rules relevant to this determination. First, Articles 22 and 23 of the Rules provide authority for the Tribunal to establish deadlines for the submission of written submissions. In establishing such deadlines, however, the Tribunal must be mindful of Article 15, which requires that both Parties be treated with equality.

  3. 59. Article 22 provides:

    The arbitral tribunal shall decide which further written statements, in addition to the statement of claim and the statement of defence, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.

    Moreover, Article 28, paragraph 3, states:

    If one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.

  4. 60. Taken together, these rules provide authority for the Tribunal to make and to enforce deadlines for the filing of written submissions, provided that the Parties are treated with equality. This limitation is important. Equality, a “fundamental principle of justice” implies that the Parties must have equal opportunity to make written submissions and to respond to each other's submissions. See Foremost Tehran, Inc. and Islamic Republic of Iran, Case Nos 37, 231 (Chamber One) (Order of 15 Sept 1983). The Tribunal “has repeatedly stated that no party shall submit any document only at the Hearing or so shortly before the Hearing that the other Party cannot respond to it without prejudice and in an appropriate way”, Sylvania Technical Systems, Inc. and Government of the Islamic Republic of Iran, Award No 180–64–1, (p. 501) p. 3–7 June 1985); Questech, Inc. and Ministry of National Defence of the Islamic Republic of Iran, Award No 191–59–1, p. 4 (25 Sept. 1985).

Commercial Development Centre and US State Dept (Ex US Embassy in Iran), Case No B65, Chamber Two, Order of September 28, 1987:

The Tribunal will decide whether to authorize posthearing submissions only at the end of the Hearing. In the Interest of the efficient conduct of the arbitration, the Tribunal will be reluctant to authorize such submissions unless they are clearly essential.

Brown & Root, Inc and Islamic Republic of Iran, Case No 432, Chamber One, Order of December 4, 1987:

Each Party shall file simultaneously by 1 March 1988 with the Tribunal copies of any remaining written evidence on which it will seek to rely together with a list of all documentary evidence submitted by it in this Case and the location in the record (by tab or Exhibit number) of each such document. By the same date each Party may file a Hearing Memorial explaining the evidence and summarizing the issues in this Case.

Each Party shall file simultaneously by 1 June 1988 copies of any documentary evidence on which it will seek to rely in rebuttal of previously presented evidence together with a supplemental list of such rebuttal evidence and the location of each such document in the record.

General Electric Co, on behalf of its Aircraft Engine Business Group, and Islamic Republic of Iran, Case No 386 Chamber One, Order of December 10, 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.

Agrostruct Intl, Inc and Iran State Cereals Organization, Award No 358–195–1 (April 15, 1988), reprinted in 18 Iran-US CTR 180, 187 (1988-I):

  1. 26. Articles 22 and 28, paragraph 3, of the [1983] Tribunal Rules, taken together, provide authority for the Tribunal to establish and enforce deadlines for the filing of written submissions, provided that the parties are treated with equality. Fundamental principles of equality and fairness between the parties, possible prejudice to either party, as well as the orderly conduct of the proceedings, require that time limits be established and enforced. The Tribunal has therefore repeatedly stated that no party shall submit any document for the first time at the Hearing, or so shortly before the Hearing that the other party cannot respond to it in an appropriate way. In deciding whether, in a particular case, a late-filed submission is nevertheless admissible, the Tribunal considers the character and contents of the submission, its length, and the cause of delay. See Harris International Telecommunications, Inc., and The Islamic Republic of Iran, et al., Award No 323–409–1, paras 57 et seq. (2 Nov 1987).

(p. 502) RanaNikpour and Islamic Republic of Iran, Case No 336, Chamber One, Interlocutory Award No ITL 81–336–1 (February 18, 1993), reprinted in 29 Iran-US CTR 67, 68 (1993):

  1. 5. On 15 July 1992, the Claimant filed a letter in which she requested an opportunity to reply to the above-mentioned Iran's submission of 26 May 1992 because that submission, according to her, includes new documents not previously submitted to the Tribunal. The Agent of the Government of the Islamic Republic of Iran filed a letter on 24 July 1992 objecting to the request. By a letter of 13 August 1992, the Claimant renewed the request.

  2. 6. Before proceeding further, the Tribunal decides the Claimant's request. Having regard to Iran's rebuttal filing of 26 May 1992, the Tribunal considers that the evidence submitted in that filing is admissible as rebuttal evidence. Further, the Tribunal notes that it has already twice given both the Claimant and the Respondents a full opportunity of presenting their evidence concerning the Claimant's dominant and effective nationality. See, supra, paras 2 and 4. Moreover, the Tribunal points out that its practice in conducting the proceedings is that a respondent is entitled to file a final rebuttal submission. Consequently, the Tribunal does not deem it necessary to grant the Claimant's request or to request any further filings concerning the issue of the Claimant's dominant and effective nationality.

Joan Ward Malekzadeh and Islamic Republic of Iran, Case No 356, Chamber One, Order of August 12, 1993:

Having regard to both Parties’ submissions and referring to Articles 15.1, 19 and 22 of the Tribunal's Rules, the Tribunal considers it appropriate to set the following schedule for further submissions in this Case:

  1. 1. The Respondent shall file with the Tribunal its Statement of Defence by October 28, 1993.

  2. 2. The Claimant shall file with the Tribunal by January 27, 1994 copies of any documentary evidence on which it will seek to rely with respect to any issues remaining in the Case, including any jurisdictional issues not decided in the Interlocutory Award and the merits, together with a list of all documentary evidence submitted by it in this Case and the location in the record (by tab or Exhibit number) of each such document. By the same date the Claimant may file a Hearing Memorial explaining the evidence and summarizing the issues in this Case.

  3. 3. The Respondent shall file with the Tribunal by April 28, 1994 copies of any remaining written evidence on which it will seek to rely with respect to any issues remaining in the Case, including any jurisdictional issues not decided in the Interlocutory Award and the merits, together with a list of all documentary evidence submitted by it in the Case and the location on the record (by tab or Exhibit number) of each such document. By the same date the Respondent may file a Hearing Memorial explaining the evidence and summarizing the issues in this Case.

  4. 4. The Claimant shall file with the Tribunal by June 27, 1994 copies of any documentary evidence on which it will seek to rely in the rebuttal of previously presented evidence, together with a supplemental list of such rebuttal evidence and the location of each such document in the record. By the same date the Claimant may file a Memorial explaining the evidence and summarizing the issues in this Case.

  5. 5. The Respondent shall file with the Tribunal by August 26. 1994 copies of any documentary evidence on which it will seek to rely in rebuttal of previously presented evidence, together with a supplemental list of such rebuttal evidence and the location of each such document in the record. By the same date the respondent may file a Memorial explaining the evidence and summarizing the issues in this Case.

NinniLadjevardi (formerly Burgel) and Government of the Islamic Republic of Iran, Award No 553–118–1 (December 8, 1993), reprinted in 29 Iran-US CTR 367, 377 (1993):

  1. 33. Turning now to an examination of this issue, the Tribunal first notes that Articles 22 and 28, paragraph 3, of the [1983] Tribunal Rules, taken together, provide authority for the Tribunal to (p. 503) establish and enforce deadlines for the filing of written submissions, provided that the parties are treated with equality. Fundamental principles of equality and fairness between the parties, possible prejudice to either party, as well as the orderly conduct of the proceedings, require that time limits be established and enforced. The Tribunal has therefore repeatedly stated that no party shall submit any document for the first time at the Hearing, or so shortly before the Hearing that the other party cannot respond to it in an appropriate way. See Harris International Telecommunications, Inc. v. Islamic Republic of Iran, et al., Award No 323–409–1, paras 57 et seq. (2 Nov. 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 45.

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

  1. 26. By Order dated 23 February 1994, the Tribunal decided to admit the Golzar affidavit into evidence, see para 36, below. The Tribunal did not explain the underlying reasons for its decision at that time, however, and proceeds to do so now.

  2. 27. The [1983] 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.

  3. 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.

  4. 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 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.”

  5. 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.

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

  1. 9. Under the [1983] 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, paras 27–28 (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, paras 30–36

    (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 (p. 504) 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.

Vera-Jo Miller Aryeh, et al and Islamic Republic of Iran, Award No581–842/843/844–1 (May 22, 1997), reprinted in 33 Iran-US CTR 272, 287 (1997):

  1. 2.1  Admissibility of Late-Filed Documents: Documents Submitted at the Hearings and Post-Hearing Submissions

  2. 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, paras 57–75 (2 Nov. 1987), reprinted in 17 Iran-US CTR 31, 45–52, Articles 15, 22, 23, and 28 of the [1983] Tribunal Rules are the primary rules regulating the status of late-filed documents. Generally, based upon Article 22, the Tribunal considers and decides which further submissions in addition to the statement of claim and the statement of defence are to be required from the parties in each case and sets forth the schedule for communicating such statements. Moreover, Article 28 gives the Tribunal the authority to make an award based on the evidence before it, if a party that has had the opportunity to file documentary evidence fails to file within the established period of time, and fails to show sufficient reason for its nonconformity. This rule equally applies to the situation in which a party has properly filed its documents, but subsequently tries to submit additional, unauthorized material for inclusion in the record of the case.

  3. 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.

  4. 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 hearing; 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.

Frederica Lincoln Riahi and Government of the Islamic Republic of Iran, Award No 600–485–1 (February 27, 2003) (citations omitted):

  1. 44. The Tribunal has considered the issue of late-filed documents in several previous Cases. In Harris International Telecommunications, the Tribunal stated that “[t]he starting point of the analysis must be the [1983] Tribunal Rules themselves. There are four rules relevant to this determination.” The Tribunal referred to Articles 22 and 23 of the Tribunal Rules, which provide authority for the Tribunal to establish deadlines for written submissions. In addition, the Tribunal referred to Article 15, which requires that the parties be treated with equality. Moreover, Article 28 gives the Tribunal the authority to make an award based on the evidence before it, if a party that has had the opportunity to file documentary evidence fails to file that evidence within the established period of time, and fails to show sufficient reason for its nonconformity. As the Tribunal stated in Harris International Telecommunications, “these rules provide authority for the Tribunal to make and to enforce deadlines for the filing of written submissions, provided that the Parties are treated with equality.”

  2. 45. Chamber One has taken a clear position when deciding the admissibility of late filings. When scheduling hearings, the Chamber routinely informs the parties that it does not permit new (p. 505) evidence prior to a hearing, unless it determines that admission of the documents is justified by exceptional circumstances, and unless those documents are filed not later than two months before the hearing.

3. Time Limits on Submission—Article 25

A. Text of the 2010 UNCITRAL Rule37

Article 25 of the 2010 UNCITRAL Rule provides:

The periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defence) should not exceed 45 days. However, the arbitral tribunal may extend the time limits if it concludes that an extension is justified.

B. Commentary

(1)  General comments

The contents of Article 25 reflect a compromise between two partly conflicting considerations: the need for speedy proceedings on the one hand and the practical impossibility of prescribing rigid time limits to enhance quick disposition of the cases on the other. A compromise has been achieved by setting a time limit that is “merely intended to serve as a general guideline.”38 Thus, although the periods in question “should not exceed forty-five days,” exceptions to this rule are possible within relatively wide limits.39

The 45-day rule can be modified initially by written agreement of the parties pursuant to Article 1(1).40 The Iran–US Claims Tribunal's modification of Article 23 of the 1976 UNCITRAL Rules serves as an example. Pursuant to Article III(4) of the Claims Settlement Declaration, as implemented in Article 18 of the modified 1976 UNCITRAL Rules,41 all statements of claim must be filed between October 20, 1981 and January 20, 1982, whereas the modified version of Article 19 sets the limit for the submission of statements of defence at 135 days.42 As modified in the Tribunal Rules, Article 23 sets the limit for additional written statements at 90 days.

The provisions just reviewed, with their rather extensive time periods, reflect the special nature of the arbitration process conducted before the Iran–US Claims Tribunal.43 However, in more conventional arbitration it is also possible, and sometimes advisable, for the (p. 506) parties to agree on modifications to the first sentence of Article 25. Modification with regard to the statement of claim should probably involve a shortening rather than a lengthening of the time limit.

Although the claimant may not have included his statement of claim in the notice of arbitration,44 by the time the proceedings commence, the claimant likely will already have been able to make necessary preparations and, consequently, may not need as long as 45 days to submit the statement of claim.45

The first sentence of Article 25 can be modified by a decision of the tribunal as well as by mutual agreement of the parties. The use of the word “should” rather than “shall” or “must” in Article 25 indicates the time specified is only a guideline to be adapted as necessary. Submission of the statement of claim is less likely to require an extension beyond the 45-day limit than subsequent written statements.

Whatever the period of time originally ordered or agreed upon, “the arbitral tribunal may extend the time-limits if it concludes that an extension is justified.” The power of the arbitral tribunal to grant an extension is not limited by any given number of days, nor is the tribunal prohibited from renewing or increasing an extension once granted.46 The only limitation, in addition to those imposed by the general provisions of Article 17—especially the principle of equality—is that in each case the extension be “justified.”

The burden of proving justification lies with the party requesting the extension. Legitimate reasons for an extension may include illness of counsel, communication problems, or unexpected problems in gathering evidence to be submitted in support of the written statement in question.47 It is up to the arbitral tribunal to assess their weight. The consent of the other party, or even its failure to object, makes it easier for the arbitral tribunal to accept the alleged justification.48 Whereas an initial extension may be granted fairly readily, further extensions may require more “compelling” reasons.49 In case of doubt the arbitral tribunal may ask a party to elaborate on the reasons for its request.50

The justification presented by a party in support of its extension request must be balanced against the possible prejudice that the extension may cause. An extension necessitating the postponement of previously scheduled oral proceedings, or threatening to hamper the orderly conduct of such proceedings, should be granted only for very exceptional (p. 507) reasons.51 The arbitral tribunal can also, of course, grant a shorter extension than that requested by the party. In some of its cases, the Iran–US Claims Tribunal has balanced its decision of granting an extension with the need of orderly proceedings by granting an extension for the submission of the statement of defence until a certain date and at the same time setting the deadline for the hearing memorial on the same date.52

Although, as a rule, granting an extension presupposes a request by the party concerned, the arbitrators may in principle also conclude proprio motu that an extension is justified by the circumstances. An example is provided by an order of the Iran–US Claims Tribunal in the Development and Resources Corporation case. The Tribunal denied Respondents’ motion to have the Claimant translate certain documents into Farsi but allowed an extension for Respondents’ next submission “in order to facilitate Respondents’ task in reviewing the documents under submission.”53 In general, the Tribunal's practice of granting extensions can be characterized as liberal.54

One of the most important questions to be addressed in connection with Article 25 pertains to the consequences of a failure to meet time limits (including extensions) set for the submission of written statements. In the unlikely event that the claimant who initiated the proceedings fails without sufficient cause to submit his claim, the arbitral tribunal, “shall” according to Article 30(1), “issue an order for the termination of the arbitral proceedings.”55 Similarly, should the respondent fail to communicate its statement of defence “without showing sufficient cause,” the arbitral tribunal shall, according to the same provision, “order that the proceedings continue.” The reference to the “showing of sufficient cause” implies that before making any decision under Article 30(1), the arbitral tribunal should provide the party with an opportunity to explain why the statement in question was not received.56 Although Article 30(1) addresses only the statement of claim and statement of defence, the sanction it provides for the failure to submit these documents on time, ie, continuation of the proceedings, also applies in cases involving untimely submission of other written statements.

A few words are warranted about the consequences of actually filing a submission with the arbitral tribunal after the prescribed time limit. Although logic may require that such a submission be rejected, in arbitration such a drastic measure should be reserved for more significant delays. A delay of a few days should not normally lead to the rejection of a written statement (or of evidence, for that matter).57 As stated by the Iran–US Claims Tribunal, (p. 508) “fundamental requirements of equality between, and fairness to, the Parties, and the possible prejudice to either Party” should be considered when deciding whether a late submission can be accepted.58 If a written statement (eg a rebuttal) from the other party is due after the delayed submission, any prejudice to that other party may be cured by accepting from it a correspondingly late filing.59 Where, however, the arbitral tribunal has decided not to grant any extension for the submission in question, whether because of previous delays or for other reasons, the orderliness of the proceedings may require that the submission be rejected even in case of a relatively short delay.60 Lack of explanation for the delay may also justify the rejection of a late-filed document.61 The decision on the admissibility of late-filed documents may also be reserved pending consideration of further explanations to be given at a forthcoming hearing.62 If rejection is considered too harsh, the arbitral tribunal may regard a delay in the submission of a document as a relevant consideration in allocating the costs of arbitration between the parties.63 In certain situations (notably where a post-hearing submission is allowed), undue delays may be prevented by granting an extension request while making it clear that deliberations (“note en délibéré”) and the finalization of the case will not be deferred pending the receipt of the submission.64

(2)  Comparison to the 1976 UNCITRAL Rules

Article 25 was adopted without any revision to the text of corresponding Article 22 of the 1976 UNCITRAL Rules.

C. Extracts from the Practice of Investment Tribunals

No practice is being extracted in this area.

D. Extracts from the Practice of the Iran–US Claims Tribunal

Texaco Iran, Ltd and National Iranian Oil Company and Islamic Republic of Iran, Case No 72, Chamber Three, Order of September 9, 1983:

In a letter dated 5 September 1983, the Agent for the Islamic Republic of Iran requested on behalf of the Respondents that the date for filing Statements of Defence in the above case be extended. The Tribunal notes that the deadline for filing the Statements of Defence has been successively extended on five separate occasions from 15 April 1982 for a total extension of over 17 months.

The Respondents have shown no reasons which would justify a further extension in this case.

Therefore, and in view of the fact that a Hearing in this case has been fixed for 1 and 2 December 1983, the Tribunal denies the above mentioned request for extension. The Order of 29 August 1983 remains in effect.

(p. 509) Hoffman Export Corp (a division of Gould Inc) and Ministry of National Defence of Iran, Case No 50, Chamber Two, Order of December 8, 1983:

The Tribunal notes that the Claimant has filed a request for an extension of time to reply to the Respondent's submission of 27 October 1985.

The Tribunal wishes to make clear that it does not intend to defer its deliberations on the present case. Should Claimant wish to file a reply it shall do so as soon as possible. The Tribunal will treat any such submission as a note en délibéré, meaning that pending its receipt, the deliberations will commence.

United States of America on behalf and for the benefit of Thomas A Todd and Islamic Republic of Iran, Case No 10856, Chamber One, Order of January 9, 1986:

The Tribunal refers to the two letters filed by the Agent of the Government of the Islamic Republic of Iran on 19 December 1985 and 2 January 1986, concerning the late filing by ten days of the Farsi version of the Claimants’ documentary evidence and legal brief.

The Tribunal advises the Parties that no final decision as to the admissibility of these late-filed documents will be made until after the Hearing on 15 April 1986.

In the meantime, in order to take account of any prejudice which might have been occasioned to the Respondent by this late filing, the Tribunal allows the Respondent an additional ten days in which to file its documentary evidence and legal brief, i.e. until 10 March 1986.

Phillips Petroleum Co, Iran and Islamic Republic of Iran, Case No 39, Chamber Two, Order of November 7, 1986:

As the Tribunal indicated in its Order of 1 October 1986, the Respondents’ request for an extension of three months to file this submission cannot be granted. However, the Tribunal understands that the delay until 9 September 1986 in filing one volume of the Claimants’ Rebuttal submitted on 1 September 1986 has effectively deprived the Respondents of a part of the time allotted for preparation of their evidence and brief in Rebuttal. In these circumstances, the Tribunal is prepared to accept the evidence and brief in Rebuttal, relating to the Claim only and limited to the issues in the Claimants’ Rebuttal, as well as any further evidence and brief regarding the issue of measure [i.e., quantification] of damages (including the issue of quantification of damages with respect to all Counter-claims), if filed by 30 November 1986.

Accordingly, the Claimant shall file any rebuttal to the evidence and brief on quantification of damages sought by the counter-claims by 31 January 1987.

The Tribunal reiterates that the Hearing will be held as scheduled.

Thomas Earl Payne and Islamic Republic of Iran, Case No 335, Chamber Two, Order of February 14, 1986:

The Tribunal notes Claimant's letter of 12 February 1986 requesting a date to be scheduled for the submission of documentary evidence to which it has recently gained access.

The Claimant is hereby instructed to submit not later than 15 March 1986, the above-mentioned evidence and to explain the circumstances that have prevented it from filing such evidence earlier. The Tribunal will then take a decision regarding its admissibility.

Computer Sciences Corp and Islamic Republic of Iran, Award No 221–65–1 (April 16, 1986) at 5–6, reprinted in 10 Iran-US CTR 269, 273 (1986-I):

The Tribunal notes that the Iranian Agent's request filed on 24 September 1985 does not point to any unforeseen circumstances which might have affected the filing of the Post-Hearing Submissions, nor does it give any new reasons for their lateness. The Tribunal is aware of the communication problems that Iranian Respondents face, and it has taken them into account in this case. In view of this, the procedural history of this case and the exceptional character of Post-Hearing Submissions, the Tribunal sees no need to reverse its decision not to allow the Respondents’ Post-Hearing Submissions.

(p. 510) Aeronutronic Overseas Services, Inc, and Telecommunications Co of Iran, Case No 410, Chamber Three, Order of August 6, 1986:

Reference is made to the submission of the Agent of the Government of the Islamic Republic of Iran filed on 25 July 1986, whereby the Respondent TCI requests a five-month extension of time to submit its Memorial and any and all evidence concerning the Claim and Counter-claims. Reference is also made to the Claimants’ objections filed on 1 August 1986.

The Tribunal notes that this is Respondent's third request for extension and for modification of this schedule since the Tribunal's Order of 28 June 1985. The Tribunal also notes that, for the first time, the Respondent has submitted a detailed schedule for the authorized inspection of Claimants’ records and for the preparation and submission of its Memorial and evidence. According to the Tribunal this schedule appears to be reasonable.

Taking into consideration the pattern of conduct adopted by the Respondent which, without convincing explanations delayed its application for visas to dispatch its representatives to inspect the records of the Claimants in the United States, and which submitted unjustified complaints about the Orders of the Tribunal, and considering the fact that such conduct could hardly be interpreted otherwise than amounting to dilatory tactics; the Tribunal added to its last Orders the proviso that no further extension would be granted. Consequently, under normal circumstances, the Tribunal would have denied the request for further extension submitted by the Respondent.

However, the request of 25 July 1986 raises certain exceptional factors including the fact that, for the preparation of its defence, the Respondent depends on the inspection of documents which are held within the territory of the United States. Although Claimants have declared themselves willing to facilitate the inspection of their records, in the present state of relations between the two countries, this circumstance involves for the Respondent specific difficulties which cannot be ignored.

In view of the foregoing, the Tribunal orders as follows:

  1. 1. The Respondents shall submit their Memorials and any or all evidence concerning the claims and counter-claims not later than December 26, 1986.

  2. 2. The Parties shall submit their Memorials and evidence in rebuttal not later than February 26, 1987.

  3. 3. The Hearing in this Case set for October 29 and 30, 1986 is rescheduled to take place on March 12 and 13, 1987.

  4. 4. No further extension will be granted.

Failure to comply with this schedule may result in the continuation of proceedings pursuant to Article 28, paragraph 3 of the [1983] Tribunal Rules.

The Tribunal will take into account in its Award the financial consequences which might be imposed on the Claimant, with no fault on its part, by the postponement of the Hearing.

Arco Exploration Inc and National Iranian Oil Co, Case No 20, Chamber One, Order of December 17, 1986:

On 16 December 1986 the Claimants filed a Request for permission to introduce documents into evidence prior to the Hearing scheduled to take place on 17, 18 and 19 February 1987. The Documents concerned were filed together with the Request in one submission.

The Respondents are invited to submit their comments on the new submission in written form at the latest on 10 February 1987. The Parties are free to also address this matter orally at the Hearing. The Tribunal will decide on the admissibility of the late-filed documents after the Hearing.

The Bendix Corp and Islamic Republic of Iran, Case No 208, Chamber Two, Order of September 28, 1987:

The Tribunal notes Respondent the Air Force of the Islamic Republic of Iran's submission of a “Prehearing memorial and supplementary evidence” filed on 14 September 1987.

(p. 511) The Tribunal observes that this Respondent has not given any explanation of the circumstances that have prevented the filing of the above mentioned submission earlier, as required by paragraph 2 of the Tribunal's Order of 24 August 1987.

In view thereof, the “Prehearing memorial and supplementary evidence” of Respondent the Air Force of the Islamic Republic of Iran cannot be accepted.

W Jack Buckamier and Islamic Republic of Iran, Award No 528–941–3 (March 6, 1992), reprinted in 28 Iran-US CTR 353, 60–62 (1992):

  1. 30. The Tribunal must determine the admissibility of the Second Supplemental Affidavit filed by the Claimant on 6 June 1988. It is not disputed that this document, which contains new evidence, was filed after the final date set for the submission of pleadings in this Case. Under Tribunal precedent, in determining whether to accept such a late submission, the Tribunal considers “fundamental requirements of equality between, and fairness to, the Parties, and the possible prejudice to either Party.” Harris International Telecommunications, Inc. and The Islamic Republic of Iran, et al., Partial Award No 323–409–1, para 61 (2 Nov. 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 46–47, and cases cited therein.

  2. 31. The Respondent objected to this filing on the grounds that they lacked the opportunity to prepare a proper response prior to the Hearing on 8 July 1988. However, on 9 February 1989 the Tribunal informed the Parties that a new Hearing would be held on 22 May 1989. This allowed the Respondents sufficient time to respond, if they so desired, to the Second Supplemental Affidavit. Considering this, the Tribunal finds that acceptance of the Claimant's submission causes no prejudice to the Respondents. The Tribunal therefore admits the Claimant's filing of 6 June 1988.

Vera-Jo Miller Aryeh and Islamic Republic of Iran, Case Nos 842, 843 and 844, Chamber One, Order of February 15, 1993:

  1. 1. The Tribunal deems it appropriate to extend to 19 March 1993 the time limit within which the Respondent shall file with the Tribunal a Statement of Defence and copies of any written evidence on which it will seek to rely … together with a list of all documentary evidence submitted by it in these Cases and the location in the record (by tab or Exhibit number) of each such document. By the same date the Respondent may file a Hearing Memorial explaining the evidence and summarizing the issues in these Cases. In view of the procedural history of these Cases, the Tribunal does not envisage to grant any further extension.

  2. 2. The Claimant shall file by 19 May 1993 a Statement of Defence to Counter-claims, if any, and copies of any documentary evidence on which it will seek to rely in rebuttal of previously presented evidence, together with a supplemental list of such rebuttal evidence and the location of each such document in the record. By the same date the Claimant may file a Memorial explaining the evidence and summarizing the issues in these Cases.

Unidyne Corp and Islamic Republic of Iran, Award No 551–368–3 (November 10, 1993), reprinted in 29 Iran-US CTR 310, 313 (1993):

  1. 7. The Hearing was held on 7 September 1990. At the Hearing, the Claimant attempted to submit in evidence its Articles of Incorporation and the birth and death certificates of Mr. Raymond Watts in support of its position that Unidyne qualifies as a national of the United States under Article VII, Paragraph 1, of the Claims Settlement Declaration. It is evident that Unidyne could have submitted all of the documents in question to the Tribunal together with its earlier filings. Furthermore, Unidyne has given no adequate explanation for the delay in their submission. The Tribunal therefore determines that these documents are inadmissible due to late submission.

(p. 512) Ouziel Aryeh, et al and Islamic Republic of Iran, Case Nos 839 and 840, Chamber One, Order of May 13, 1994:

On 2 May 1994, the Claimants filed a submission entitled “Claimants’ Memorial and Evidence, Volume II.” On 6 May 1994, a letter was filed by the Agent of the Government of the Islamic Republic of Iran in which he stated that the unauthorized filing of Volume II was done more than a year after the filing of Volume I by the Claimants and after the filing of the “Respondent's Brief on Jurisdictional Issues and Merits” on 28 April 1994, thereby denying the Respondent the opportunity to comment on the Claimants’ Volume II in its Brief. It was further requested that the Tribunal strike the late filing from the record of these Cases.

The Tribunal notes that the Claimant's Volume II, consisting, inter alia, of an appraisal on the properties that are the subject of the claims, was not filed until 2 May 1994 without any explanation for the delay, although the Claimants had stated in Volume I, filed on 31 March 1993, that they “expected to submit within 30 days, an expert appraisal on the value of the properties that are the subject of their claims as of the date of their taking by Respondent.” The Tribunal further notes that it had ordered the Claimants to file all written evidence by 1 April 1993. The Respondent also pointed out in its Brief, filed on 28 April 1994, that the appraisal had not been presented to the Tribunal.

However, the Tribunal also notes that the evidence now proffered consists of an appraisal and an Affidavit which further clarify the Claimants’ claim. At this stage of the proceedings, the Tribunal finds it appropriate to admit the Claimants’ late filing.

In order to avoid any prejudice to the Respondent, the Tribunal further decides as follows:

  1. (1)  The Respondent is invited to file by September 30, 1994 its response to Volume II of the Claimant's Memorial and Evidence.

  2. (2)  After receipt of the Respondent's response, the Tribunal will schedule further proceedings in these Cases.

United States of America and Islamic Republic of Iran, Case No A/33, Full Tribunal, Order of February 28, 2002:

  1. 1. The Tribunal notes the letter from the Agent of the Government of the Islamic Republic of Iran, filed on February 15, 2002 (Doc. 7), requesting an extension of time for the Respondent to submit its Statement of Defense. The Tribunal further notes the United States “Objection to Iran's Second Request for Extension,” filed on February 20, 2001 (Doc. 8).

  2. 2. Having considered the Parties’ submissions, the Tribunal extends the time-limit for the Respondent to submit its Statement of Defense to April 15, 2002.

Footnotes:

1  Article 24 was adopted without any revision to the text of corresponding Article 22 of the 1976 UNCITRAL Rules.

2  See United Parcel Service of America, Inc (1976 Rules), and KarahaBodas Co LLC (1976 Rules), both reprinted in section 2(C).

3  The wording of Article 24 makes it clear that not even an agreement of the parties obliges the arbitral tribunal to order further written statements if it is not itself convinced of their utility. In contrast, both the Preliminary Draft and the Revised Draft (Article 19(2), and Article 10(1) respectively) deferred to the parties on this matter, providing the following sentence: “However, if such parties agree on a further exchange of written statements, the arbitrators shall receive such statements.” However, this sentence was eventually deleted from what became Article 22 of the 1976 UNCITRAL Rules. For the relevant discussion in Committee of the Whole (II), see Summary Record of the 8th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.8, paras 44–78 (1976). It is clear, however, that a unanimous party request should normally be followed by the Tribunal. Moreover, pursuant to Article 1(1), the parties may, by written agreement, modify the rules including Article 24. See also J van Hof, “UNCITRAL Arbitration Rules, Section III, Article 22 [Further written statements],” in L Mistelis (ed), Concise International Arbitration (2010) 202.

4  See Chapter 2, discussing Article 17(2).

5  On the considerations motivating further written statements, see M Moses, The Principles and Practice of International Commercial Arbitration (2008) 159.

6  See Report of the Secretary-General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), reprinted in (1975) VI UNCITRAL Ybk 163, 175. P Sanders, “Commentary on UNCITRAL Arbitration Rules,” (1977) II Ybk Commercial Arb 204. As to the terminology, see A Redfern and M Hunter with N Blackaby and C Partasides, Law and Practice of International Commercial Arbitration (4th edn 2004) 347–8. For an example from the practice of NAFTA tribunals, see Methanex Corp (1976 Rules), Minutes of First Procedural Order, reprinted in section 2(C).

7  See Chapter 13, discussion on articles 20 and 21.

8  On “memorials” in the text of inter-state arbitration, see V S Mani, International Adjudication, Procedural Aspects (1980) 116–19. Only in complex cases is it advisable to permit reply/rejoinder and memorial/counter-memorial in separate stages in the proceedings. This may, however, be practicable where there is a counterclaim to which the main claimant has the right to reply. See Notes to Article 19 of the 1983 Tribunal Rules of the Iran–US Claims Tribunal, para 2, reprinted in Appendix 5. See also n 9.

9  For examples of somewhat differently worded orders asking for the submission of memorials, see Control Data Corp (1983 Tribunal Rules); and Varo Intl Corp (1983 Tribunal Rules); both reprinted in section 2(D).

10  See N Blackaby and C Partasides with A Redfern and M Hunter, Redfern and Hunter on International Arbitration (5th edn 2009) 413 (noting the rarity of “documents only” arbitration).

11  According to A Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-U.S. Claims Tribunal (1994) 11, n 38, “[t]he Tribunal has generally allowed four rounds of filings: i) Statement of Claim and Statement of Defence; ii) Claimant's Reply and Respondent's Rejoinder; iii) Claimant's and Respondent's Memorial and Evidence; and iv) their Rebuttals to each others’ Memorials and Evidence.” On the other hand, Full Tribunal cases have often been regarded as ripe for a hearing after two rounds of written pleadings. See J Selby and D Stewart, “Practical Aspects of Arbitrating Claims Before the Iran-United States Claims Tribunal,” (1984) 18 Intl Lawyer 228. For examples of scheduling orders, see Control Data Corp (1983 Tribunal Rules); and Varo Intl Corp (1983 Tribunal Rules); both reprinted in section 2(D).

12  See NAFTA, art 1128, allowing submissions by a NAFTA Party on a question of interpretation of the NAFTA. See also Methanex Corp (1976 Rules), Minutes of Second Procedural Order, reprinted in section 2(C).

13  See Chapter 2, section 3(B) on non-party participation in UNCITRAL arbitration.

14  For an example of an exceptional case of the Iran–US Claims Tribunal in which two rounds of written pleadings were ordered after the Hearing Memorials, see Fluor Corp (1983 Tribunal Rules), reprinted in section 2(D).

15  General Electric Co (1983 Tribunal Rules), reprinted in section 2(D).

16  See Chapter 13 on Article 20.

17  See Chapter 17 on Article 26.

18  See T Webster, Handbook of UNCITRAL Arbitration: Commentary, Precedents and Materials for UNCITRAL Based Arbitration Rules (2010) 344.

19  See V S Mani, International Adjudication, Procedural Aspects, n 8, 123.

20  In the practice of the Iran–US Claims Tribunal, “[l]arge, involved claims, such as the large oil company claims, often were divided into phases—e.g. jurisdiction, liability, quantification, counter-claims—with separate exchanges and possibly separate hearing memorials and evidence for each.” See S Baker and M Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992) 96, n 413.

21  See, eg, American Bell Intl (1983 Tribunal Rules); and United States of America on behalf and for the benefit of Harrington & Associates, Inc (1983 Tribunal Rules); both reprinted in section 2(D). On the practice of the Iran–US Claims Tribunal in this regard, see also J Selby and D Stewart, “Practical Aspects of Arbitrating Claims,”n 11, 231.

22  See, eg, Commercial Development Centre (1983 Tribunal Rules), reprinted in section 2(D).

23  See Harris Intl Telecommunications (1983 Tribunal Rules); Agrostruct Intl (1983 Tribunal Rules); Frederica Lincoln Riahi (1983 Tribunal Rules);Vera-Jo Miller Aryeh (1983 Tribunal Rules);Vivian Mai Tavakoli (1983 Tribunal Rules); Dadras Intl (1983 Tribunal Rules); and NinniLadjevardi (1983 Tribunal Rules); all reprinted in section 2(D).

24  In earlier drafts of the 1976 UNCITRAL Rules, what is now Article 24 was originally included as part of an article which addressed both further written statements and further documentary evidence. (See Article 19 of the Preliminary Draft and Article 20 of the Revised Draft of the 1976 UNCITRAL Rules). The provision concerning further documentary evidence ultimately was separated and became part of Article 24 of the Final Draft (now Article 27). For the discussion in the Committee of the Whole (II) leading to the separation of the two issues, see Summary Record of the 8th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.8, paras 61–78 (1976).

25  Sometimes the very concept of “Memorial” is used to imply that documentary evidence is included. See N Blackaby and C Partasides, Redfern and Hunter on International Arbitration, n 10, 382.

26  See n 8 and accompanying text. This and other filing arrangements for written submissions are illustrated by the Tribunal's early practice, as described by informed authors in 1984:

Chamber Two has the most standardized approach, typically a three-step schedule: (i) claimant files a summary of all evidence on which it will seek to rely, together with all documentary evidence (including affidavits) and any written briefs; (ii) respondent files the same; and (iii) both parties file any rebuttal evidence and briefs. Chambers One and Three have normally issued more varied, tailor-made orders, frequently with detailed descriptions of specific documents and types of evidence to be submitted and often setting a hearing date. Chamber One, in keeping with its general attention to technical and jurisdictional points, is most likely to decide minor preliminary questions or to indicate its intention to decide a given jurisdictional issue (especially corporate nationality) on documents at some future time.

J Selby and D Stewart, “Practical Aspects of Arbitrating Claims,”n 11, 226–7.See also the various orders quoted in section 2(D).

27  See, eg, Gami Investments Inc (1976 Rules); and KarahaBodas Co LLC (1976 Rules); both reprinted in section 2(C).

28  As leading commentators note:

The parties must understand what is intended. Otherwise the arbitration may be delayed by inadequate written submissions or, alternatively, time and money may be wasted in making voluminous and exhaustive written presentations when the arbitral tribunal intends to hold a full oral inquiry into the evidence and arguments at hearings that will take place later in the proceedings.

N Blackaby and C Partasides, Redfern and Hunter on International Arbitration, n 10, 379–80.

29  See Joan Ward Malekzadeh (1983 Tribunal Rules) reprinted in section 2(D).

30N Blackaby and C Partasides, Redfern and Hunter on International Arbitration, n 10, 381.

31  V S Mani, International Adjudication, n 8, 107.

32  Contrast Control Data Corp (1983 Tribunal Rules);Varo Intl Corp (1983 Tribunal Rules); and Cabot Intl Capital Corp (1983 Tribunal Rules); all reprinted in section 2(D).

33  See RanaNikpour (1983 Tribunal Rules), reprinted in section 2(D). See also A Mouri, The International Law of Expropriation, n 11, 11, n 38. Even in recent years, however, the Full Tribunal has ordered hearing memorials to be filed simultaneously.

34  Sovereigns may be reluctant to assume this role. An example is provided by the Aminoil case, Chapter 9,n 16. See N Blackaby and C Partasides, Redfern and Hunter on International Arbitration, n 10, 381.

35  A common wish of this kind may be behind the order issued in Brown & Root (1983 Tribunal Rules), reprinted in section 2(D).

36  See Sterling Drug (1983 Tribunal Rules), reprinted in section 2(D).

37  Article 25 was adopted without any modification to the text of corresponding Article 22 of the 1976 UNCITRAL Rules.

38  Report of the Secretary-General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 175.

39  See, eg,GAMI Investments, Inc (1976 Rules), reprinted in section 2(C) (permitting respondent four months to file statement of defence).

40  Report of the Secretary-General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 175.

41  See Chapter 13, n 41.

42  See Chapter 13, n 48.

43  Many Iranian entities faced a multitude of claims directed against them—hence the 135-day period reserved for statements of defence was appropriate. The 90-day period stipulated in Article 23 of the 1983 Tribunal Rules in part also accounts for this heavy case load. As the disposition of the claims in any case is bound to take quite some time, it perhaps does not make much difference whether 45 or 90 days is the general period of time for written statements.

44  See Chapter 10.

45  The Revised Draft envisaged a period of only 15 days for the statement of claim, reserving 45 days for other written statements. See Report of the Secretary-General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 175. In the Committee of the Whole II it was “agreed that this article should not contain any special provision concerning the communication of the statement of claim.” Report of the UNCITRAL on the Work of its Ninth Session, UN GAOR, 31st Session, Supp No 17, UN Doc A/31/17, para 120 (1976), reprinted in (1976) VII UNCITRAL Ybk 66, 75.

However, the parties of course retain their freedom to modify the time limits in accordance with Article 1(1).

46  See, eg, United States and Iran, Case No A/33 (1983 Tribunal Rules), reprinted in section 3(D).

47  Webster notes other possible justifications may depend on the complexity of an arbitration or the involvement of government entities. T Webster, Handbook of UNCITRAL Arbitration: Commentary, Precedents and Materials for UNCITRAL Based Arbitration Rules (2010) 346. Even absent reasonable justifications for an extension of time, a tribunal may find it difficult to reject late-filed documents that are material to the claims presented in the arbitration. See OuzielAryeh (1983 Tribunal Rules), reprinted in section 3(D).

48  Although there is no absolute duty to ask the other party to give its comments, in cases involving requests for more significant extensions that party should be provided an opportunity to lodge any protest it may have against the extension requested.

49  See Texaco Iran (1983 Tribunal Rules), reprinted in section 3(D).

50  See Thomas Earl Payne (1983 Tribunal Rules), reprinted in section 3(D).

51  See Texaco Iran (1983 Tribunal Rules), reprinted in section 3(D).

52  See Vera-Jo Miller Aryeh (1983 Tribunal Rules), reprinted in section 3(D).

53  See Chapter 11, section 2(D)(2).

54  Baker and Davis summarize this practice as follows:

The arbitral chambers settled into a pattern of granting any party three extensions of three months without requiring any explanation. The order granting the third extension normally included cautionary language warning that no further extensions would be granted “without specific and compelling reasons.” Iranian parties routinely responded to these orders by seeking a further extension, often asserting more specific reasons. The Tribunal normally denied fourth requests made without offering any particulars, but it nevertheless ordered that the filing be submitted “forthwith” or within an additional period of time. In egregious cases of delay, the Tribunal considered the filing waived and moved on to the next stage; as a practical matter, however, it normally accepted any submission filed sufficiently in advance of the hearing to provide the opposing party with an opportunity to respond.

S Baker and M Davis, The UNCITRAL Arbitration Rules in Practice, n 20, 99–100 (citations omitted). See also S Toope, Mixed International Arbitration (1990) 328 et seq. For illustrations of the practice, see section 3(D).

55  See discussion of Article 28 in Chapter 19.

56  See P Sanders, “Commentary on UNCITRAL Arbitration Rules,”n 6, 206.

57  See Anaconda-Iran, Inc (1983 Tribunal Rules), reprinted in Chapter 13, section 3(D)(3).

58  See W Jack Buckamier (1983 Tribunal Rules), reprinted in section 3(D).

59  See Phillips Petroleum Co, Iran (1983 Tribunal Rules); and United States on behalf of and for the benefit of Thomas A Todd (1983 Tribunal Rules); both reprinted in section 3(D).

60  Computer Sciences Corp (1983 Tribunal Rules), reprinted in section 3(D).

61  Bendix Corp (1983 Tribunal Rules), reprinted in section 3(D).

62  See Arco Exploration, Inc (1983 Tribunal Rules); and Unidyne Corp (1983 Tribunal Rules), reprinted in section 3(D).

63  Aeronutronic Overseas Services, Inc (1983 Tribunal Rules), reprinted in section 3(D).

64  See Hoffman Export Corp (1983 Tribunal Rules), reprinted in section 3(D). This is not the only order of its kind issued by the Iran–US Claims Tribunal.