INTRODUCTION

The Convention itself contains a number of provisions on procedure. Art. 44 is a residual rule directing a tribunal and the parties to use ICSID's Arbitration Rules in addition to the Convention. The parties are free to exclude or adapt these Rules subject to certain limitations (see paras. 20–23 infra). The tribunal is authorized to fill any remaining gaps.

In the Convention's drafting, the text of what eventually became Art. 44 under-went only a few changes and was largely uncontested (History, Vol. I, pp. 198–200) (see also paras. 11, 43, 44, 53 infra). The only major point of debate was to what extent procedural questions should be regulated in the Convention itself rather than in the Arbitration Rules (see para. 32 infra).

Art. 44 is the procedural counterpart to the choice of law provision of Art. 42(1). Art. 42(1) only applies to substantive questions but not to the procedure before an ICSID tribunal (see Art. 42, para. 3). Whereas Art. 42(1) contains reference to the law of the State party to the dispute, Art. 44 creates a comprehensive and self-contained system that is insulated from national rules of procedure.