1. Introduction

The site visit allows decision-makers to inspect a location, project or property connected with a dispute. Also known as a 'descente sur les lieux' or visit 'in situ', a site visit can be a valuable way for decision-makers to gain a better understanding of the case before them. However, a site visit can be very expensive and adds time to the proceedings, so the Tribunal should carefully weigh the cost of the visit against its benefits before embarking upon it. In addition, a number of interesting questions arise concerning the logistics of a site visit and its evidentiary value in the case, and these should be considered by the parties and the Tribunal well in advance of the actual visit.

2. Site visits in state-state proceedings

Site visits are well known in the domestic practice of many jurisdictions,2 particularly in construction matters. They have also been a feature of international practice, albeit less frequently. Site visits are held relatively often in international criminal disputes where a visit to the scene of the alleged crime is a valuable source of information for the Tribunal.3[Page248:] They have also been useful in boundary and water diversion cases. In 1937, the Permanent Court of International Justice (PCIJ) undertook a three-day visit to the disputed site in the Diversion of Water from the Meuse case.4 The Meuse case concerned the construction of canals by Belgium on the Meuse River, which allegedly prejudiced treaty rights of the Netherlands. Acting on a joint proposal by the parties, the Court visited several canal construction sites to see first-hand how the disputed project operated.

Article 66 of the Rules of the International Court of Justice (ICJ) gives that Court authority to undertake site visits. It states that:

The Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as the Court may decide upon after ascertaining the views of the parties. The necessary arrangements shall be made in accordance with Article 44 of the Statute.5

The ICJ has conducted only one site visit to date, in the Gabcikovo-Nagymaros Project case.6 The dispute concerned allegations of economic and environmental harm arising from the construction of a hydroelectric dam on the Danube. The full Court undertook a four-day visit along the Danube River in Hungary and Slovakia. Originally requested by Slovakia, the visit had the consent of both states and was planned in minute detail. The itinerary was outlined in a joint protocol of the parties and replicated in the procedural order of the Court.7 The terms of the Agreed Minutes reveal the scope and nature of the site visit sought by the parties:

1. The purpose of the visit will be to familiarize the Court with the area to which the Case relates and with the technical issues which can be presented in the course of the visit, without referring to judicial questions. The parties agree that this purpose will best be achieved if their presentations to the Court are as far as possible objective in content and neutral in tone.

2. In addition, the members of the Court should be afforded an opportunity to ask questions of a factual or technical character to the presenting party at any time during the presentation, and the presenting party may respond forthwith to such questions, or may reserve its answer to the Reply phase in the following week. The other party may make brief factual or technical [Page249:] responses to any presentation or answer, it being understood that such responses will be as brief as possible and will be consistent with paragraph 1 above.

3. The presenting party may make remarks and comments, consistent with paragraph 1 above, at any stage during the course of the tour of the concerned areas. Arrangements will be made, in conjunction with the Registry of the Court for the translation of remarks and comments and of any responses made under paragraph 2.

4. Presentations may be made by the Agent, or one of the accompanying persons nominated under paragraph 4 of the Agreement. At a particular location other persons with expertise related to the location may be called on to make a presentation. The names of the persons who will be called on will be exchanged between the parties two weeks prior to the visit.

This site visit is especially interesting for the distinction it draws between a visit intended to provide technical background information to help understand evidence and a visit that serves to gather evidence for the record.8 The purpose of this site visit was clearly the former, and the parties limited the presentations to explanations of technical and factual matters. As noted by the President of the ICJ: 'The Court looked, listened, asked many questions, and gained a new dimension of insight into the case and what it meant to the Parties - much more than could have been gleaned from confining proceedings in The Hague.'9 The questions asked by the judges during the site visit were not transcribed nor did they become part of the record, with one exception. A question posed by Judge Ranjeva was put on the record, as was a map provided in reply to Judge Ranjeva's question. Ultimately, the Court did not make fact findings based on the information obtained from this site visit.

Site visits have also been useful in several arbitrations between states. For example, in the 1976 Beagle Channel arbitration, the Tribunal visited the location at issue in a land and maritime boundaries dispute between Chile and Argentina.10 Again, the Tribunal did not expressly base its findings on the site visit. Nonetheless, Sir Gerald Fitzmaurice, President of the Court, affirmed the utility of the visit, noting that: 'it was not that [Page250:] one discovered anything startlingly new or unforeseen, but it enabled one to identify with the region, and to visualize its features in a way that only actual looking and seeing can ensure.'11

Two site visits to the Kishenganga/Neelum hydroelectric projects were undertaken in the Indus Waters Kishenganga arbitration between Pakistan and India. One took place in the summer of 2011 and the other in the winter of 2012 to see how the river was affected by the construction during different flow seasons.12 In this case, the presentations were limited to technical and factual matters and only the Tribunal was allowed to ask questions. Procedural Order No. 3 stated that the site visit 'shall not be considered "oral hearings" or "oral submissions"'.13 To similar effect, Procedural Order No. 7 provided that '[t]he purpose of the second site visit is to give the Members of the Court a background impression of the relevant projects and areas surrounding the Kishenganga/Neelum River'.14 The on-site inspection appears to have been particularly relevant to determining whether to order interim measures:

As seen during the Court's site visit, the construction and completion of these elements of the KHEP occur at some distance from the Kishenganga/Neelum riverbed, and would thus not in and of themselves affect the flow of the river. Thus, even under the hypothesis that the Court finds at the merits stage that Pakistan's claims, or elements of those claims, are meritorious and the KHEP cannot be completed and put into operation as planned, no violations of Pakistan's rights would have been caused by the tunneling and power house construction aspects of the KHEP, and no particular remedies seem to be available from the Court in this regard (at least as far as the Court can see at this early phase in the proceedings).15

Based in part on its site visit, the Court found that some of the work that was being carried out on the dam during the proceedings might render restoration of the water flows more difficult and costly, and could potentially prejudice the final resolution of the dispute:

Based upon the Parties' submissions and the construction schedule, and bearing in mind the Court's inspection of the dam site during the site visit, the Court is persuaded that, while the present proceedings are underway, works on the dam are likely to advance to a point where the possible restoration of the flow of the Kishenganga/Neelum to its natural channel will be rendered significantly more difficult and costly to the potential prejudice of any prescriptions that may be made by the Court in its Award.16

[Page251:]

Consequently, it ordered that work on the riverbed at the Gurez site should not proceed until an award was rendered.17 The Court did not expressly refer to the visits in reaching its decision in the final award.

In the Bay of Bengal dispute between Bangladesh and India, a Tribunal established under Annex VII of the UNCLOS visited the relevant sites in a maritime boundary dispute.18 Procedural Order No. 1 concerning the site visit echoed the Gabcikovo-Nagymaros order in some respects, stressing the neutral tone of the visit:

Any presentations made during the site visit shall be limited to objective, technical presentations made by experts in situ (whether by members of the official delegations or by other experts). Legal issues or arguments may not be discussed at any point during such presentations. Presentations must be succinct and remain neutral in tone.19

However, the case materials show that this site visit served not only to gain a better understanding of the relevant locality, but also to obtain evidence. The visit was videotaped by a Registry staff member and both parties were able to add photographs and videos from the visit to the formal record of the proceedings. Each party was asked to indicate the specific photos or video footage it wanted admitted into the record. Any dispute as to 'the admissibility, relevance, materiality and weight' was to be determined by the Tribunal.20

3. Site visits in ICSID proceedings

Applicable provisions

Site visits have also been held in investor-state arbitrations, and the most frequently used arbitration rules permit such visits at the discretion of the Tribunal.21 Article 43 of the ICSID Convention provides that:

Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings,

.........

(b) visit the scene connected with the dispute, and conduct such inquiries there as it may deem appropriate.

[Page252:]

Rule 34(2) of the ICSID Arbitration Rules similarly states as a general principle of evidence that:

The Tribunal may, if it deems it necessary at any stage of the proceeding:

........

(b) visit any place connected with the dispute or conduct inquiries there.

Rule 37(1) of the Rules offers further guidance on organization of a site visit:

If the Tribunal considers it necessary to visit any place connected with the dispute or to conduct an inquiry there, it shall make an order to this effect. The order shall define the scope of the visit or the subject of the inquiry, the time limit, the procedure to be followed and other particulars. The parties may participate in any visit or inquiry.

There have been requests for site visits in several ICSID cases, and such requests have been publicly noted in Santa Elena v. Costa Rica,22Micula v. Romania,23Unglaube v. Costa Rica,24Elsamex v. Honduras,25OI European v. Venezuela,26Equatorial Guinea v. CMS Energy,27 and Burlington Resources v. Ecuador.28 While the applicable provisions give the Tribunal discretion to request a site visit of its own accord, the requests for site visits in these cases appear to have been made by one or both parties. The requests were refused in Santa Elena, Micula and OI European but site visits were undertaken in Unglaube, Elsamex, CMS and Burlington.

When will a site visit be ordered? The necessity test

The ICSID Arbitration Rules do not elaborate on when a site visit will be ordered, other than to say in situations where the Tribunal 'considers it necessary'. One of the main considerations in deciding whether the visit is necessary is the probative value of the site visit, and whether it would help prove or disprove facts in issue. In assessing probative value, the Tribunal should consider whether the condition of the site at the time of the visit has changed in any relevant respect. Similarly, the Tribunal may want to consider whether the information obtained on a [Page253:] site visit could be proved less expensively, for example through a video recording of the site, photographic exhibits, and/or the testimony of witnesses. If so, a site visit might not be justified.

The Tribunal in Micula declined the site visit on grounds of relevance and because the facts had already been proved through other evidence. The Micula case concerned the repeal of investment incentives by Romania. The Claimants requested a visit of the investor's business facilities on the grounds that it would demonstrate their advance planning of incremental investments on the basis of the availability of government incentives. The Tribunal declined this request, without prejudice to a renewed request at a later stage. It held that the visit:

would not enlighten the Tribunal at that stage in the proceedings, as any information gleaned from such visit would be either irrelevant for the resolution of the dispute or unnecessary given that the record supplied sufficient evidence, at least at that juncture. However, the Tribunal invited the Parties to renew the application for a site visit after the hearing on the merits if they continued to wish for one.29

The Claimants renewed their request for a visit in Micula after the merits hearing but this request too was rejected as the questions at issue had already been sufficiently proved by other means. The Tribunal confirmed that:

a site visit was not necessary nor useful for the resolution of the dispute, as it would not have supplied further evidence of the Claimants' intention to pursue the Incremental Investments than that already in the record. Due to the characteristics of a site visit, it could not have provided further useful, certainly not documentary, evidence of advance planning of these investments; rather, it would have allowed the Tribunal to see the size and characteristics of the Claimants' integrated platform and their ability to easily implement the Incremental Investments, which is sufficiently confirmed by evidence in the record (including the 17-minute video of the site and the Incremental Investments attached as Exhibit C-987, as well as the witness statements of Mr. Halbac and Mr. Baciu, which contain numerous color photographs and diagrams that explain the characteristics and distribution of the site, their oral testimonies and the documentary evidence they cite in their witness statements).30

In Santa Elena, Elsamex and Unglaube, the Tribunals did not expressly address the necessity test in their reasons, but each appears to have applied this test. The Santa Elena Tribunal refused the request on the basis that it would not be 'useful'.31 The Elsamex Tribunal made a site visit and noted the utility of that visit at several points in its award, asserting that the visit contributed to the fact findings concerning the condition of the disputed highway.32 The Unglaube Tribunal commented on the effect of witnessing the leatherback turtles at their nesting sites. 33

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Threshold question: Is it evidence?

The Tribunal and the parties must be very clear about the evidentiary purpose of the site visit, as a number of corollary decisions will depend on the purpose of the site visit. In general, a site visit may have one of two purposes. First, it can be an opportunity to educate the Tribunal about the facts in issue and to provide it with sufficient technical understanding to evaluate the evidence otherwise produced. In this case, the site visit is a framework for assessing evidence, but does not become part of the record. On the other hand, the site visit may actually become evidence on the record, and may be relied upon by the Tribunal in its award. If the visit is 'on record', the Tribunal should address how it is recorded, for example through video, photographs, minutes of the visit, transcript (or all of these means). This is especially important in investment arbitration cases where there is the possibility of review or annulment, and the record may be submitted to the reviewing body.34 If the site visit constitutes evidence, the Tribunal must carefully consider how parties can address the evidence created during the site visit, for example by allowing objections, questions, cross-examination, submissions, or otherwise.

The distinction between site visits as a means of providing technical background information or as an independent source of evidence has been noted in some ICSID cases. For example, the Unglaube case concerned the extent to which the government of Costa Rica could take or regulate the use of beachfront property owned by the Claimants. The Tribunal agreed to a site visit but was careful to state that the purpose of the visit was '[b]ecause of the desirability of gaining a greater understanding of the particular area'.35 It designed the procedural framework in accordance with this purpose, stressing that the site visit 'was an opportunity to examine the property involved. It was not a "hearing." The Tribunal, therefore, in Procedural Order No. 2, required that all communication by the Parties with the Tribunal [during the visit], be conducted exclusively through their respective counsel.'36

Most site visits in ICSID cases have been for the purpose of creating 'on record' evidence, and the procedural orders in these cases have carefully defined how this would be accomplished.

Timing of the request and the visit

A request for a site visit can be made at any stage of the proceedings. However, it seems logical to request the visit as early as possible so that the Tribunal can determine whether it is necessary, and if so, make arrangements to hold the visit at the most appropriate moment [Page255:] in the proceedings. If the necessity of the visit is not evident to the Tribunal by the first session, the decision on a visit can be deferred or a request for a visit can be renewed at a later time when the Tribunal's understanding of the case has evolved or if the circumstances relevant to a visit have changed. A site visit intended to provide an overall framework for assessment of evidence might best be held at the start of the arbitration, before other evidence is led. If the purpose of the site visit is to prove or disprove a fact in contention, the Tribunal might time the visit for later in the proceedings, after it has heard the testimony addressing the disputed fact.37

In Santa Elena, the parties raised the question of a site visit at the first procedural session. The Tribunal deferred making a decision on the request until the conclusion of the oral hearing when it could assess whether a visit would be useful. Although the question was raised 'a number of times' during the proceedings, the Tribunal ultimately concluded that a site visit was not necessary.38 In Micula, the Claimant requested a site visit after a decision on jurisdiction had been issued and before the Tribunal addressed merits and quantum. It renewed this request after the merits hearing, but both requests were rejected by the Tribunal.39 In Elsamex, the sole arbitrator visited the highway at issue in a highway construction dispute. The site visit took place during the hearing on the merits and counter-claim, and the parties filed photographic reports of the site inspection immediately after that hearing. 40 In Unglaube, the site visit took place less than two months before the hearing.41 In Burlington, the site visit took place after the decision on liability and after the hearing on the counterclaim and quantum of damages.42

Logistics

Once the decision to hold a site visit is made, the Tribunal should carefully consider the logistics of the visit. This must be addressed with the parties and recorded in one or more procedural orders. Often the parties are asked to conclude a joint protocol on the visit, outlining the arrangements for the visit and the points on which the parties agree. This allows the Tribunal to focus on major or contentious issues in its related procedural orders.

Among the salient issues for the protocol and the procedural orders governing a site visit are:

When the visit will take place. The visit should be scheduled to ensure that the current conditions of the site are pertinent to the dispute. This consideration is especially relevant if the condition [Page256:] of the site fluctuates with natural or other conditions. A different aspect of timing concerns the stage of the proceedings and the purpose of the visit. The Tribunal may wish to do the visit early in the case if it is viewed as setting an overall framework to assess the evidence. On the other hand, if the site visit is intended to prove or disprove particular facts, it might be scheduled later in the case, after other relevant evidence has been put on record, so that the visit informs the outstanding disputed issues.43

Pre-visits to the site. The parties may wish to make a pre-visit to the site to consider what the Tribunal should see during the visit. Addressing this in a procedural order is especially relevant if one party has custody of the site and the other party does not have free access to the site.

Who can attend. Usually a site visit will include counsel, a client representative, the Tribunal and the Tribunal Secretary. Depending on the circumstances, the Tribunal may wish to include one or more witnesses, in particular expert witnesses.

Who will speak. The Tribunal should clearly determine who will narrate the visit, and the extent to which each party may ask questions or object to information volunteered by the other party. In so doing, it needs to ensure the equality of the parties is maintained. Arbitrators generally will not put questions directly to persons working or otherwise present on the site unless counsel agree to this and can ask follow-up questions.44 The Tribunal should carefully distinguish between, on one hand, the explanations given by an expert or a witness in the course of the visit which would be treated as sworn testimony pursuant to Article 35(2) or (3) of the ICSID Arbitration Rules, and on the other hand, the presentation given by the parties which would have the same value as the submissions. The procedural order should also determine whether there will be cross-examination and the right to tender rebuttal evidence, during or after the site visit. The Tribunal should also consider related evidentiary questions, such as whether the site visit will include demonstrative evidence, experiments, sampling or explanations. In this respect, the Tribunal needs a clear vision of what is to become evidence under oath, and what is considered explanatory, in the nature of submissions by counsel.

Language and translation. The Tribunal should decide the language of the visit (which is usually the same as the language of the proceedings) and ensure translation is available if needed.

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Scope of the visit. What will be visited by the Tribunal must be clearly established in advance of the visit, again to ensure the visit has probative value but also retain the equality of the parties. The parties usually set out explicitly the property they will visit and the processes that will be demonstrated.

What materials will be made available at the site. The Tribunal may wish to ensure it has a package of relevant evidence with it on the site visit, including diagrams, maps, or other information on record in the case. This can be in hard copy, but it may be more convenient to load it onto a tablet device taken to the visit. In ICSID practice, this package has been limited to material already on the record. Thus, the parties should refrain from introducing new elements into their documents package during the visit, unless otherwise agreed.45

Itinerary and schedule. The protocol for the visit should carefully address the practical aspects of getting to and from the site and navigating around the site. This includes transportation, accommodation, meals, security and the like. These details can be implemented by the Tribunal Secretary with input from the parties. Article 26(2) of ICSID Administrative and Financial Regulations provides that 'The Secretary-General shall assist a Commission or Tribunal, at its request, in visiting any place connected with a dispute or in conducting inquiries there.'

Confidentiality. The Tribunal should consult the parties on the extent to which the visit is confidential. Usually visits are confidential, although the evidence they generate will likely be subject to the confidentiality regime applicable to the overall case.

Recording the evidence. Most ICSID visits to date have been videoed, often supplemented with audio or photographic records, minutes of the visit and transcripts. These are transmitted to the parties for comment before being entered on the record.

Immunity. As the site visit is part of the ICSID process, the participants are protected by the legal immunity of Articles 21 and 22 of the ICSID Convention.46

Post-visit submissions or evidence. The Tribunal may wish to have the parties make post-visit submissions on what was viewed and how it supports their respective positions.

[Page258:]

Cost of the visit. The Tribunal should address which party will pay the costs of the visit or whether it will become part of the costs order at the end of the case, subject to the usual considerations in awarding costs. The cost of a site visit should not be underestimated as it involves not only the costs of getting to and from the site and visiting it, but the related fees of three Tribunal members and counsel. In the ICSID cases to date, the costs of the Tribunal for the visit have been equally apportioned between the parties, with each party bearing its own expenses.

4. Conclusion

A site visit can be a useful tool in the right circumstances. However, it can also be costly and time-consuming. Consequently, careful consideration of the need for a visit, meticulous logistical planning and a clear vision of the evidentiary purpose of the visit are vital.



1
Meg Kinnear is Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID); mkinnear@worldbank.org.Randi Ayman is a legal intern at ICSID and a doctoral candidate in public international law at the Panthéon-Sorbonne University in Paris, France; rabdelfattah@worldbank.org. The views expressed in this article are those of the authors and should not be regarded as the official or unofficial position of the ICSID Secretariat.


2
See e.g. Sections 38(4) and 44(2) of the English Arbitration Act (1996); Article 193 of the Swiss Criminal Procedure Code; Article 179 of the French Code of Civil Procedure; Articles 944.4 and 982 of the Quebec Code of Civil Procedure; Sections 3, 144 and 219 of the German Code of Civil Procedure, Articles 403-408 of the Chilean Code of Civil Procedure; and Article 12A of the Turkish International Arbitration Code.


3
See e.g. The Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgment, 7 June 2001; The Prosecutor v. Radoslav Brdanin, ICTY-99-36-T, Judgment, 1 Sept. 2004; and The Prosecutor v. Germain Katanga and Ngudjolo Chui, ICC-01/04-01/07, Decision on a Judicial Site Visit to the Democratic Republic of the Congo, 18 Nov. 2011.


4
Diversion of Water from the Meuse (Netherlands v. Belgium), 1937, PCIJ Series A/B No. 70, Judgment, 28 June 1937, 4 at 9.


5
See also Articles 44 and 48 of the ICJ Statute and Articles 31 and 62 of the ICJ Rules.


6
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 27 Sept. 1997, ICJ Reports 1997, 7.


7
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Order of 5 Feb. 1997, ICJ Reports 1997, 3; and Protocol of 14 Nov. 1995 ('Protocol of Agreement between the Republic of Hungary and the Slovak Republic with a view to proposing to the International Court of Justice the arrangements for a visit in situ in the case concerning the Gabcikovo-Nagymaros Project') as subsequently completed by Agreed Minutes dated 7 Feb. 1997, see S. Rosenne, Essays on International Law and Practice (Nijhoff, 2007) at 224.


8
See C. Walter, 'Article 44' in A. Zimmermann et al., eds., The Statute of the International Court of Justice: A Commentary Second Edition (Oxford University Press, 2012) 1172; S. Schwebel, Justice in International Law: Further Selected Writings (Cambridge University Press, 2011) 95, M. Bedjaoui, 'La "descente sur les lieux" dans la pratique de la Cour Internationale de Justice et de sa devancière' in G. Hafner et al., eds., Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80th Birthday (Nijhoff, 1998) 1; J-M. Thouvenin, 'La descente de la Cour sur les lieux dans l'affaire relative au projet Gabcikovo-Nagymaros' (1997) 43 Annuaire français de droit international 333; P. Tomka & S. Wordsworth, 'The First Visit of the International Court of Justice in Fulfillment of Its Judicial Function' (1998) 92 American Journal of International Law 133; F. Meadows, 'Case Analysis: The First Visit by the International Court of Justice' (1998) 11 Leiden Journal of International Law 603.


9
Statement to the 52d session of the General Assembly, Doc. No. A/52/PV.36, 27 Oct. 1997 (available on the ICJ website).


10
Beagle Channel Arbitration between the Republic of Argentina and the Republic of Chile, Report and Decision of the Court of Arbitration, 18 Feb. 1977, Reports of International Arbitral Awards, vol. 21 (United Nations, 2006) 53 at 72.


11
Ibid. at 222.


12
Indus Waters Kishenganga Arbitration (Pakistan v. India), Permanent Court of Arbitration (PCA), Partial Award, 18 Feb. 2013, 10-31.


13
Ibid., § 36.


14
Ibid., § 82.


15
Order on the interim measures application of Pakistan dated 6 June 2011 in the Indus Waters Kishenganga Arbitration, 23 Sept. 2011, § 142.


16
Ibid., § 149.


17
Ibid., §§ 150-152.


18
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), PCA, Award, 7 July 2014, §§ 18-26.


19
Procedural Order No. 1, 28 Aug. 2013 (revised 11 Oct. 2013), § 5.


20
Procedural Orders Nos. 3 and 4 dated 20 Nov. 2013 and 6 Dec. 2013, respectively. See also § 263 of the Award.


21
See e.g. Article 18(2) of the UNCITRAL Arbitration Rules; paragraphs 57 and 58 of the UNCITRAL Notes on Organizing Arbitral Proceedings; Article 27(3) of the PCA Arbitration Rules. See also Articles 7 and 9 of the IBA Rules on the Taking of Evidence in International Arbitration.


22
Compañía del Desarrollo de Santa Elena, S.A. v. The Republic of Costa Rica (ICSID Case No. ARB/96/1), Award, 17 Feb. 2000 [hereinafter Santa Elena].


23
Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania (ICSID Case No. ARB/05/20), Award, 11 Dec. 2013 [hereinafter Micula].


24
Marion Unglaube v. Republic of Costa Rica (ICSID Case No. ARB/08/1), Award, 16 May 2012 [hereinafter Unglaube].


25
Elsamex, S.A. v. Republic of Honduras, (ICSID Case No. ARB/09/4), Award, 16 Nov. 2012 [hereinafter Elsamex].


26
OI European Group B.V v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/25), Award, 10 Mar. 2015 [hereinafter Ol European].


27
Republic of Equatorial Guinea v. CMS Energy Corporation and others (ICSID Case No. CONC(AF)/12/2) [hereinafter CMS Energy].


28
Burlington Resources, Inc. v. Republic of Ecuador (ICSID Case No. ARB/08/5) [hereinafter Burlington].


29
Micula, § 58.


30
Ibid., § 1116.


31
Santa Elena, § 14.


32
Elsamex, §§ 382, 397, 398, 402-403, 411-415, 461, 478 and 804.


33
Unglaube, §165.


34
See E. Geisinger, 'Advocacy in International Commercial Arbitration: What For?' in E. Geisinger & G. Tattevin, eds., Advocacy in International Commercial Arbitration, ASA Special Series No. 36 (Juris, 2013) 3 at 18-21.


35
Unglaube, § 165.


36
Ibid. at footnote 89.


37
E. Geisinger, supra note 34 at 18-19.


38
Santa Elena, § 14 and footnote 2.


39
Micula, §§ 29, 31, 58, 113, 114 and 1116.


40
Elsamex, §§ 170, 382, 397, 402-3, 411-13, 461, 478 and 804.


41
Unglaube, §§ 23-24.


42
Burlington, Procedural Details, ICSID website.


43
This analysis was explicitly followed in Micula even though the request for the site visit was not granted. Micula, § 58.


44
N. Blackaby et al., Redfern and Hunter on International Arbitration, 5th ed. (Oxford University Press, 2009) at 412.


45
See the Bay of Bengal Arbitration on this particular point, supra note 20.


46
C. Schreuer et al, The ICSID Convention: A Commentary, 2d ed. (United Kingdom: Cambridge University Press, 2009) at 621.