ICSID issues final draft of investor-state dispute rule amendments

ICSID began work on amending the rules in 2016 and has now published a sixth working paper (80 page / 4.75MB PDF) outlining the final amendments, along with a complete set of amended rules (242 page / 5.38MB PDF).

The amended rules are aimed at simplifying and streamlining the procedures for resolving disputes between investors and states. ICSID said they would reduce the time, cost and environmental footprint of cases.

Under the new rules, there will be more transparency in the conduct and outcomes of disputes, with more publication of awards, decisions and orders.

This increased transparency is demonstrated by the new proposals with respect to third-party funding, under which parties will have to disclose the name and address of any non-party from which they receive funding, including details of the funder’s beneficial owner and decision-maker.

Since the tribunal is given discretion to determine the extent of disclosure, additional details may be required to be disclosed, for example details relating to the funding agreement itself, or the funder’s history of cases against the same state.

Arbitration expert Scheherazade Dubash of Pinsent Masons, the law firm behind Out-Law, said ICSID’s proposals came in the wake of an increased reliance on third-party funding in investment treaty arbitrations.

“This has led states and arbitral tribunals to examine in further detail the impact of third-party funding on the current system of investment protection and investor-state dispute settlement. In particular, the proposed rules attempt to address concerns relating to potential conflicts of interest of arbitrators, the costs of investor-state dispute settlement proceedings and security for costs,” Dubash said.

Expedited arbitration rules will give parties the option to fast-track proceedings. Groups of states such as the EU will be able to use ICSID’s Additional Facility Rules for Arbitration and Conciliation. ICSID is also introducing mediation rules available to all investors and states.

Changes in the sixth working paper include clarification of rules governing the participation of non-disputing treaty parties, to confirm they can make a written or oral submission on the interpretation of the treaty at issue. The tribunal will also be required to provide the non-disputing party with relevant documents filed in the proceedings, unless one of the disputing parties objects to this.

Pinsent Masons arbitration expert Clea Bigelow-Nuttall said: “The proposed rules regarding the participation of non-disputing parties is a welcome development: there is likely to be increased interest from non-disputing parties to make submissions in ICSID cases, especially those cases arising in the context of the environment, sustainability and energy transition which are going to have an increasingly high profile going forward.”

“The ability of non-disputing parties to make submissions will help to improve public perception of the legitimacy of ICSID cases and investor-state dispute settlement more generally, but it is important that interventions by external parties be regulated so as not to become a tool used to derail these disputes,” Bigelow-Nuttall said.

ICSID said it planned to table the amended rules for a vote of approval in early 2022. Amendments to the ICSID Convention Rules require the approval of two-thirds of member states, and a majority for other rules including the mediation rules.