MODERNISING, SIMPLIFYING AND STREAMLINING: ICSID REVISES RULES

In a move intended to further enhance its status as a leading international arbitration institution, the International Centre for Settlement of Investment Disputes (ICSID) is proposing to amend its catalogue of procedural rules and regulations.

In its ‘Proposals for Amendment of the ICSID Rules’ Working Paper #3, the ICSID states that its plans constitute a “comprehensive amendment of the rules governing arbitration and conciliation under the ICSID Convention and ICSID Additional Facility, as well as new stand-alone rules for fact-finding and mediation in investment disputes”.

The proposed amendments are in fact the fourth time the ‘ICSID Rules’ have been earmarked for updating – the overarching goal being to modernise, simplify and streamline ICSID proceedings. “In terms of context to the current amendment process, two developments are important to note,” says Damon Vis Dunbar, spokesperson for the ICSID Secretariat. “One is that the ICSID caseload has continued to grow. This provides substantial real-life experience with how the rules perform in practice, and therefore insight into where improvements are possible.

“Second, there have been broader discussions in the United Nations, the Organisation for Economic Co-operation and Development (OECD) and other fora on how international investment disputes are best resolved,” he continues. “The ICSID has been an active participant in those discussions, and we felt the ICSID rules could address some of the concerns and recommendations that have been expressed by states and other stakeholders.”

In the view of Christopher Moore, a partner at Cleary Gottlieb Steen & Hamilton LLP, the proposed amendments codify certain developments in arbitral practice since the ICSID Rules were last amended in 2006. “The amendments are set against the backdrop of concerns having been expressed by some stakeholders about the perceived independence and diversity of arbitrators, and the costs and duration of disputes,” he explains.

Apr-Jun 2020 issue

Fraser Tennant