On 9th May 2017, the International Centre for Settlement of Investment Disputes (“ICSID”) launched a webpage for a rule amendment project. The page will track the progress of the latest round of ICSID rule amendments, the process for which began in October 2016 when ICSID sought comments on potential amendments from member states. This was followed by ICSID’s invitation to the public in January 2017 for suggestions for rule amendments.
The ICSID Convention Rules and Regulations were adopted in 1967 and the Additional Facility Rules in 1978. Those familiar with ICSID will know that this rule amendment project is the latest in several rounds of rules changes, previous processes having taken place in 1984, 2003 and from 2004 to 2006. The last round of changes entered into force in April 2006 and incorporated a number of perceived improvements to the rules including a strengthening of disclosure requirements for arbitrators, expanded transparency provisions to publish awards as soon as possible and on the possibility to hold open hearings, and the possibility for a respondent to obtain an early dismissal of a case due to manifest lack of legal merit.
In papers published on its website, ICSID says there are several overriding goals for the 2016 – 2018 round of amendments. Firstly, they are intended to modernise the rules based on ICSID’s experience of, and lessons learned from, administrating over 600 cases; secondly they aim to make the process increasingly time and cost effective while maintaining due process and a balance between investors and states; thirdly it is hoped that they will make the ICSID process less paper-intensive and more environmentally friendly.
In its official documentation relating to the rule changes, ICSID lists a number of potential areas for amendment including:
- Making the process for appointment of arbitrators more streamlined.
- Consideration of a code of conduct for arbitrators.
- Possible disclosure of third party funding for the purposes of conflict checking and/or security for costs.
- Clarification of the basis of costs awards or the adoption of a presumption concerning liability for costs.
Comments garnered from the latest rule amendment project have been collected by the Secretariat who will prepare background papers on topics identified for potential rule amendment. It is intended that these background papers will form the basis for proposed change, note relevant considerations, and suggest the potential wording or structure of amendments. ICSID hopes to publish these papers by early 2018.
Source: The International Centre for Settlement of Investment Disputes. Web page on Rule Amendment Project available at https://icsid.worldbank.org/en/Pages/about/Amendment-of-ICSID-Rules-and-Regulations.aspx