Debates Parlamentares - Diário 080, p. 1502 (1988-06-01)

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1502

II SÉRIE — NÚMERO 80

information and documentation which would assist him in the discharge of his functions; they shall give their most serious consideration to his recommendations.

e) Unless otherwise agreed upon by the panics, the conciliator shall, within a period not exceeding one hundred and eighty days from the date of his appointment, submit to the parties a report recording the results of his efforts and setting out the issues controversial between the parties and his proposals for their setdement,

f) Each party shall, within sixty days from the dale of the receipt of the report, express in writing its views on the report to die other party.

g) Neither party to a conciliation proceeding shall be

0 The conciliator shall have failed to submit his report within the period established in section e) above; or it) The parties shall have failed to accept all of the proposals contained in the report within sixty days after its receipt; or

«0 The parties, after an exchange of views on the report, shall have failed to agree on a settlement of all controversial issues within sixty days after receipt of die conciliator's report; or

iv) A party shall have failed to express iis views on the report as prescribed in section f) above.

k) Unless the panics agree otherwise, die fees of the conciliator shall be determined on the basis of the rates applicable to ICSID conciliation. These fees and die other costs of the conciliation proceedings shall be borne equally by the parties. Each party shall defray its own expenses.

Article 4

Arbitration

a) Arbitration proceedings shall be instituted by means of a notice by the parly seeking arbitration (the claimant) addressed to the other party or parties to the dispute (the respondent). The notice shall specify the nature of the dispute, the relief sought and the name of the arbitrator appointed by the claimant. The respondent shall, within thirty days after the date of receipt of the notice, notify the claimant of the name of the arbitrator appointed by it. The two parties shall, within a period of thirty days from the dale of appointment of the second arbitrator, select a third arbitrator, who shall act as president of the Arbitral Tribunal (the Tribunal).

b) If the Tribunal shall not have been constituted within sixty days from the date of die notice, die arbitrator not yet appointed or the president not yet selected shall be appointed, at the joint request of the parties, by the secretary-general of ICSID. If there is no such joint request, or if the secretary-general shall fail to make the appointment within thirty days of the request, either party may request the president of the International Court of Justice to make the appointment.

c) No parly shall have die right to change the arbitrator appointed by it once the hearing of the dispute has commenced. In case any arbitrator (including the president of the Tribunal) shall resign, die, or become incapacitated, a successor shall be appointed in the manner followed in the appointment of his predecessor and such successor shall have the same powers and duties of the arbiuator he succeeds.

d) The Tribunal shall convene first at such lime and place as shall be determined by the president. Thereafter, the Tribunal shall determine the place and dates of its meetings.

e) Unless otherwise provided in this annex or agreed upon by the parties, the Tribunal shall determine its procedure and shall be guided in this regard by the

arbitration rules adopted pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.

f) The Tribunal shall be the judge of its own competence except that, if an objection is raised before the Tribunal to the effect that die dispute falls within the jurisdiction of the Board or the Council under article 56 or within the jurisdiction of a judicial or arbitral body designated in an agreement under article 1 of this annex and the Tribunal is satisfied that the objection is genuine, the objection shall be referred by the Tribunal to the Board or the Council or the designated body, as the case may be, and the arbitration proceedings shall be stayed until a decision has been reached on the matter, which shall be binding upon the Tribunal.

g) The Tribunal shall, in any dispute within the scope of this annex, apply the provisions of this Convention, any relevant agreement between the parties to the dispute, the Agency's by-laws and regulations, the applicable rules of international law, the domestic law of the member concerned as well as the applicable provisions of the investment contract, if any. Without prejudice to the provisions of this Convention, the Tribunal may decide a dispute ex aequo et bono if the Agency and the member concerned so agree. The Tribunal may not bring a finding of non liquet on the ground of silence or obscurity of the law.

h) The Tribunal shall afford a fair hearing to all the parties. All decisions of the Tribunal shall be taken by a majority vole and shall stale the reasons on which they arc based. The award of the Tribunal shall be in writing, and shall be signed by at least two arbitrators and a copy thereof shall be iransmitcd to each party. The award shall be final and binding upon the parties and shall not be subject to appeal, annulment or revision.

0 If any dispute shall arise between the parties as to the meaning or scope of an award, either party may, within sixty days after the. award was rendered, request interpretation of the award by an application in writing to the president of the Tribunal which rendered the award. The president shall, if possible, submit the request to the Tribunal which rendered the award and shall convene such Tribunal within sixty days after receipt of die application. If this shall not be possible, a new tribunal shall be constituted in accordance with the provisions of sections a) to d) above. The Tribunal may stay enforcement of die award pending its decision on die requested interpretation.

f) Each member shall recognize an award rendered pursuant to this article as binding and enforceable within its territories as if it were a final judgment of a court in that member. Execution of the award shall be governed by die laws concerning the execution of judgments in force in the State in whose territories such execution is sought and shall not derogate from the law in force relating to immunity from execution.

k) Unless the parties shall agree otherwise, the fees and remuneration payable to die arbitrators shall be determined on the basis of the rates applicable to ICSID arbitration. Each party shall defray its own costs associated with the arbitration proceedings. The costs of the Tribunal shall be borne by the parties in equal proporation unless die Tribunal decides otherwise. Any question concerning the division of the costs of the Tribunal or the procedure for payment of such costs shall be decided by die Tribunal.

Article 5 Service of process

Service of any notice or process in connection with any proceeding under this annex shall be made in writing. It shall be made by the Agency upon the authority designated by the member concerned pursuant to article 38 of this Convention and by that member at the principal office of the Agency.

1502II SÉRIE — NÚMERO 80information and documentation which would assist him in the discharge of his functions; they shall give their most serious consideration to his recommendations.e) Unless otherwise agreed upon by the panics, the conciliator shall, within a period not exceeding one hundred and eighty days from the date of his appointment, submit to the parties a report recording the results of his efforts and setting out the issues controversial between the parties and his proposals for their setdement,f) Each party shall, within sixty days from the dale of the receipt of the report, express in writing its views on the report to die other party.g) Neither party to a conciliation proceeding shall be0 The conciliator shall have failed to submit his report within the period established in section e) above; or it) The parties shall have failed to accept all of the proposals contained in the report within sixty days after its receipt; or«0 The parties, after an exchange of views on the report, shall have failed to agree on a settlement of all controversial issues within sixty days after receipt of die conciliator's report; oriv) A party shall have failed to express iis views on the report as prescribed in section f) above.k) Unless the panics agree otherwise, die fees of the conciliator shall be determined on the basis of the rates applicable to ICSID conciliation. These fees and die other costs of the conciliation proceedings shall be borne equally by the parties. Each party shall defray its own expenses.Article 4Arbitrationa) Arbitration proceedings shall be instituted by means of a notice by the parly seeking arbitration (the claimant) addressed to the other party or parties to the dispute (the respondent). The notice shall specify the nature of the dispute, the relief sought and the name of the arbitrator appointed by the claimant. The respondent shall, within thirty days after the date of receipt of the notice, notify the claimant of the name of the arbitrator appointed by it. The two parties shall, within a period of thirty days from the dale of appointment of the second arbitrator, select a third arbitrator, who shall act as president of the Arbitral Tribunal (the Tribunal).b) If the Tribunal shall not have been constituted within sixty days from the date of die notice, die arbitrator not yet appointed or the president not yet selected shall be appointed, at the joint request of the parties, by the secretary-general of ICSID. If there is no such joint request, or if the secretary-general shall fail to make the appointment within thirty days of the request, either party may request the president of the International Court of Justice to make the appointment.c) No parly shall have die right to change the arbitrator appointed by it once the hearing of the dispute has commenced. In case any arbitrator (including the president of the Tribunal) shall resign, die, or become incapacitated, a successor shall be appointed in the manner followed in the appointment of his predecessor and such successor shall have the same powers and duties of the arbiuator he succeeds.d) The Tribunal shall convene first at such lime and place as shall be determined by the president. Thereafter, the Tribunal shall determine the place and dates of its meetings.e) Unless otherwise provided in this annex or agreed upon by the parties, the Tribunal shall determine its procedure and shall be guided in this regard by thearbitration rules adopted pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States.f) The Tribunal shall be the judge of its own competence except that, if an objection is raised before the Tribunal to the effect that die dispute falls within the jurisdiction of the Board or the Council under article 56 or within the jurisdiction of a judicial or arbitral body designated in an agreement under article 1 of this annex and the Tribunal is satisfied that the objection is genuine, the objection shall be referred by the Tribunal to the Board or the Council or the designated body, as the case may be, and the arbitration proceedings shall be stayed until a decision has been reached on the matter, which shall be binding upon the Tribunal.g) The Tribunal shall, in any dispute within the scope of this annex, apply the provisions of this Convention, any relevant agreement between the parties to the dispute, the Agency's by-laws and regulations, the applicable rules of international law, the domestic law of the member concerned as well as the applicable provisions of the investment contract, if any. Without prejudice to the provisions of this Convention, the Tribunal may decide a dispute ex aequo et bono if the Agency and the member concerned so agree. The Tribunal may not bring a finding of non liquet on the ground of silence or obscurity of the law.h) The Tribunal shall afford a fair hearing to all the parties. All decisions of the Tribunal shall be taken by a majority vole and shall stale the reasons on which they arc based. The award of the Tribunal shall be in writing, and shall be signed by at least two arbitrators and a copy thereof shall be iransmitcd to each party. The award shall be final and binding upon the parties and shall not be subject to appeal, annulment or revision.0 If any dispute shall arise between the parties as to the meaning or scope of an award, either party may, within sixty days after the. award was rendered, request interpretation of the award by an application in writing to the president of the Tribunal which rendered the award. The president shall, if possible, submit the request to the Tribunal which rendered the award and shall convene such Tribunal within sixty days after receipt of die application. If this shall not be possible, a new tribunal shall be constituted in accordance with the provisions of sections a) to d) above. The Tribunal may stay enforcement of die award pending its decision on die requested interpretation.f) Each member shall recognize an award rendered pursuant to this article as binding and enforceable within its territories as if it were a final judgment of a court in that member. Execution of the award shall be governed by die laws concerning the execution of judgments in force in the State in whose territories such execution is sought and shall not derogate from the law in force relating to immunity from execution.k) Unless the parties shall agree otherwise, the fees and remuneration payable to die arbitrators shall be determined on the basis of the rates applicable to ICSID arbitration. Each party shall defray its own costs associated with the arbitration proceedings. The costs of the Tribunal shall be borne by the parties in equal proporation unless die Tribunal decides otherwise. Any question concerning the division of the costs of the Tribunal or the procedure for payment of such costs shall be decided by die Tribunal.Article 5 Service of processService of any notice or process in connection with any proceeding under this annex shall be made in writing. It shall be made by the Agency upon the authority designated by the member concerned pursuant to article 38 of this Convention and by that member at the principal office of the Agency.

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