free counter with statistics

NOSVIGNERONS - Arbitration Law Firms

The New ICSID Arbitration Rules

The ICSID Convention, Regulations and Rules were adopted in 1967 and were later amended four times, with the last amendment entering into force in April 2006. In October 2016, the ICSID launched a new amendment process calling for Member States, and later the public, to suggest topics to be considered for changes. According to the ICSID, the main goals of this round of amendments were to modernize the rules based on case experience and to make the procedure more time and cost effective and less paper-intensive, while also “maintaining due process and a balance between investors and States.” [1]

Amended ICSID Arbitration Rules

From August 2018 until November 2021, the ICSID Secretariat published six working papers on the proposals for rule amendments.[2] Ending the five-year process, ICSID submitted the amendments to the Administrative Council on 20 January 2022 and the representatives of the 156 contracting States approved the changes on 21 March 2022. Apart from the amended ICSID Arbitration Rules, the Council also amended the rules and regulations for ICSID Additional Facility proceedings and adopted entirely new Mediation and Fact-Finding Rules, all coming into effect on 1 July 2022.[3]

The significantly amended ICSID Arbitration Rules are available here.

Main Changes in the Amended ICSID Arbitration Rules

More Time and Cost-Effective Procedure

According to Meg Kinnear, the Secretary-General of ICSID, “[T]he most important changes are provisions aimed at reducing the time and cost of proceedings.”[4] One of the most straightforward ways of achieving cost-efficiency is found in new Rule 4, which provides that all documents shall be filed electronically unless special circumstances require otherwise.

As for the speed of the proceedings, the working group has introduced entirely new tools. Within 45 days from the constitution of the tribunal (or even prior to the constitution), parties will be able to object that a claim is manifestly without legal merit under new Rule 41. The tribunal will then have 60 days to make a decision, which can end the proceedings without going into more detail and incurring unnecessary costs for the parties.[5]

Read Also :  How To show Arbitration Law Firms Better Than Anyone Else

Apart from an objection based on the lack of legal merit, under the amended ICSID Arbitration Rules parties will also have the right to file preliminary objections[6] on the basis that the dispute or any ancillary claim is not within the jurisdiction of ICSID or within the competence of the tribunal. Such preliminary objections can be filed together with a request for bifurcation, which is also regulated in new Rule 42 for the first time.[7]

Chapter XII of the amended ICSID Arbitration rules also introduces the possibility of entirely new Expedited Arbitration. The rules give the parties an opportunity to consent to expedite the procedure at any time, which leads to the first session being held 30 days after the constitution of the tribunal. The proceedings then continue with the following time limits:

  • The parties have 60 days each to exchange the memorials (that shall be no longer than 200 pages);
  • The parties have 40 days each to file a reply and the rejoinder respectively (not longer than 100 pages);
  • The hearing shall be held within 60 days from the last written submission;
  • The tribunal shall render the award as soon as possible, but in any event no later than 120 days after the hearing.

What this means is that in the cases where the parties opt for expedited arbitration the tribunal will have to render the award within 410 days from its constitution.[8]

More Transparency

One of the most important changes in the amended ICSID Arbitration Rules might relate to the improvement of the transparency of the proceedings. According to new Rule 14, the parties must disclose the name and address of any third-party funders immediately after securing the funding or upon registration of the request. Previously, this was often kept as a secret by claimants who were relying on the support of funders, raising issues such as a potential unknown conflict of interests.

Read Also :  Variation Claims in International Arbitration • Arbitration

The amended rules also address the problem of the issue conflicts of arbitrators by introducing an expedited proceeding for the disqualification of arbitrators until the end of which the main proceedings are suspended.[9]

Other Amendments

Other changes relate to, for example, the possibility of the participation of third parties in the proceedings,[10] a new rule (Rule 53) on security for costs[11] and the new factors which the tribunal will have to consider when awarding costs (including amongst others the conduct of the parties during the proceedings).[12] All of these will have a significant impact on ICSID arbitration proceedings.

Conclusion

Even though Ms. Kinnear stated that the ICSID addressed all major topics, some practitioners think that the amendments are unlikely to solve all the problems that critics of the ISDS system are concerned about, which is especially true regarding the rules of issue conflict.[13]

Despite these critiques, the amendments are a welcome step towards a more transparent and effective system of investment arbitration.

[1] https://icsid.worldbank.org/resources/rules-and-regulations/amendments/about

[2] https://icsid.worldbank.org/resources/rules-amendments

[3] https://icsid.worldbank.org/sites/default/files/publications/rule_amendment_proposals_convention.pdf

[4] http://arbitrationblog.kluwerarbitration.com/2022/03/22/interview-with-meg-kinnear-secretary-general-of-icsid/

[5] Amendments To ICSID Arbitration Rules, Rule 41.

[6] Amendments To ICSID Arbitration Rules, Rule 43.

[7] Amendments To ICSID Arbitration Rules, Rules 42 and 44.

[8] Amendments To ICSID Arbitration Rules, Chapter XII, Rules 75 to 86.

[9] Amendments To ICSID Arbitration Rules, Chapter III, Rules 22 to 26.

[10] Amendments To ICSID Arbitration Rules, Rules 67 and 68.

[11] Amendments To ICSID Arbitration Rules, Rule 53.

[12] Amendments To ICSID Arbitration Rules, Rule 52.1.

[13] http://arbitrationblog.kluwerarbitration.com/2022/01/28/icsid-reform-balancing-the-scales/

Reference Article: https://www.international-arbitration-attorney.com/the-new-icsid-arbitration-rules/

Get Code

Hello, my name is Isaac Laytonx I am a professional writer on several sites, one of which is this blog.

Leave a Comment