Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules
This commentary focuses on select aspects of the ICSID Secretariat's March 15, 2019 draft proposals for amendment of the ICSID Arbitration Rules.
Key Messages
- This commentary focuses on select aspects of the proposed amendments to the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) that merit further development, as well as on some key aspects not covered in the ICSID Secretariat's March 15, 2019 draft.
- The proposed amendments signal an effort to improve the procedural rules governing ICSID arbitration, but fail to appropriately address many concerns expressed by states and other stakeholders and fall short of promoting meaningful reform of investor–state dispute settlement (ISDS).
- In the ICSID Secretariat's analysis, many priority reforms identified by states may not be achieved through amendment of the ICSID Arbitration Rules. If this analysis is accurate, ICSID member states should also consider amending the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention).
On March 15, 2019, the Secretariat of the International Centre for Settlement of Investment Disputes (ICSID) issued a working paper (WP #2) in the context of a rule amendment process launched in October 2016.
The ICSID Secretariat expressed its hope to achieve broad consensus on the current draft so that a final proposal can be sent to members, allowing them to vote on the amendments in October 2019. The secretariat also welcomed comments on WP #2 by states and the public by June 10, 2019.
This document provides summary comments to WP #2, prepared by IISD. The commentary focuses exclusively on select aspects of the proposed amendments to the ICSID Arbitration Rules and to the Arbitrator Declaration that merit further development. It also addresses some key aspects not covered in the current draft.
The proposed amendments fail to appropriately address many concerns expressed by states and other stakeholders with respect to treaty-based investor–state arbitration. While signalling an effort to improve the procedural rules governing ICSID arbitration, they fall short of promoting meaningful reform of investor–state dispute settlement (ISDS).
Many priority reforms identified by states may not be achieved through amendment of the ICSID Arbitration Rules, according to the ICSID Secretariat. If the secretariat's analysis is considered accurate, ICSID member states should, in parallel to the rule amendment process, consider amending the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention).
Additional downloads
You might also be interested in
Supply chain ESG laws face uphill battle
A last-minute compromise has saved a landmark EU reform to hold the bloc’s biggest companies accountable for environmental, social and governance (ESG) abuses in their supply chains. But the need to dilute the rules to win political buy-in, plus a US decision to scrap supply chain obligations from the country’s fresh climate-disclosure rules, reveals the difficulty of holding firms legally responsible for their business partners’ actions.
Investor–State Dispute Settlement and Fossil Fuels: What role for a carveout?
Next week, at the 9th annual OECD Investment Treaty Conference, delegates will discuss a possible carveout of climate change measures from investor-state dispute settlements (ISDS). We assess the implications of this for states' climate policies and broader efforts to reform international investment governance.
The Investment Facilitation for Development Agreement: A reader's guide
A subset of World Trade Organization members has finalized the legal text of an Agreement on Investment Facilitation. This Reader's Guide provides an overview of what's in the agreement.
Tough Road Ahead to Integrate Investment Facilitation Agreement Into World Trade Organization System
Rashmi Jose delves into the origins, content, and challenges of integrating the plurilateral Investment Facilitation for Development Agreement into the WTO framework.