ICSID statistics reveal significant arbitration caseload increase

The statistics (27 pages / 2.4 MB) from ICSID, where investor-state disputes are resolved, are based on cases registered during the calendar year 2023. They include information on the basis for ICSID involvement, regional distribution, economic sectors, case outcomes, and diversity of arbitrator appointments.

According to the report, the ‘basis of consent’ – allowing a dispute to be heard by ICSID – was primarily bilateral investment treaties (BITs), representing 40% of cases. BITs are agreements between two countries to support investment in each other’s territories. The North American Free Trade Agreement (NAFTA) and its successor, the United States Mexico Canada Agreement (USMCA), which govern disputes involving North American countries, were behind 15% of cases.

The report showed a total of 57 new cases, marking a rise of 16 new proceedings registered compared to those registered during 2022. However, a smaller proportion of cases were settled during 2023, with only 31% compared to 51% in 2022. Among cases decided by tribunals, 55% of awards upheld claims in part or in full, similar to 2022 (56%). As in previous years, the economic sector with the most conflict was the oil, gas, and mining industry, with a total of 23% of cases. Sectors such as construction were also commonly in dispute as well as transportation, both with 18%. This represented an increase compared to previous years. However, energy cases have decreased from 20% to 12%.

Regionally, Latin America led the way with the highest number of cases registered. Central America and the Caribbean accounted for 23% of cases, with Mexico topping the list with 10 cases, following by nine from Honduras and three from Argentina. “A factor that might impact the increase of arbitrations in Latin America is the effect of the elections that will take place this year in Panama, Mexico, Dominican Republic, Uruguay and Venezuela,” said Begoña Charro de Mendieta of Pinsent Masons. Additionally, “taking into account that early this year the Mexican Supreme Court declared that provisions included in the 2021 Reform to the Electricity Industry Law were unconstitutional, this might have an impact on the recent initiated investment arbitrations against Mexico”, she added.

Early 2024 has also seen new cases involving Poland, Colombia, Bulgaria, and Ukraine, according to ICSID records.

Regarding appointments of arbitrators, conciliation (mediators) and ICSID committee members in 2023, 45% were from Western Europe. People from South America made up a further 16%, with 15% from North America. The most represented nationality, as in previous years, was the US with a total of 13 appointments. France followed with 11 before Argentina and Switzerland both with eight.

The report also highlighted that progress has been made in increasing the number of women appointments, from 23% in 2022 to 32% during 2023. The main appointments of women were made by ICSID, while like in previous years, men accounted for more than 90% of appointments made by those claiming in disputes.