On March 21, 2022, ICSID´s Member States approved the long-awaited amendments of ICSID´s Regulations and Rules, after a consultation process of more than 5 years with member States and the international arbitration community, and after the publication of six Working Papers.
This is the fourth time that the ICSID Rules have been amended and according to ICSID it is the “most extensive review to date.” The 2022 ICSID Regulations and Rules will become effective on July 1, 2022.
These amendments cover the following:
- Regulations and Rules for ICSID Convention Proceedings: which include ICSID Administrative and Financial Regulations, ICSID Institution Rules, ICSID Arbitration Rules, and ICSID Conciliation Rules;
- ICSID Additional Facility Proceedings;
- ICSID Mediation Proceedings; and
- ICSID Fact Finding Proceedings.
Among the most relevant innovations of these amendments are the following:
- Electronic filing of documents. The Request for Arbitration is to be filed electronically, but the Secretary General may require the filing of the Request in an alternative format if necessary. Any other document in the arbitral proceeding shall be also filed electronically, and only in special circumstances the Tribunal may order that documents to be filed in a different format.
- Mandatory timeframes for rendering orders, decisions and awards.The Tribunal shall use its best efforts to comply with the time limits to render orders, decisions and Awards. In case the Tribunal cannot comply with a specific time limit, it shall advise the parties of the special circumstances justifying the delay, and when anticipates rendering the order, decision or Award.
The Tribunal shall render an Award in the following time-frames:
- In the case of a preliminary objection for manifest lack of legal merit under Arbitration Rule 41(3), 60 days after the later of the Tribunal constitution or the last submission;
- in the case of a preliminary objection for lack of jurisdiction under Arbitration Rule 44(3)(c), 180 days after the last submission;
- in all other cases, 240 days after the last submission.
- Case management conferences. With the purpose of conducting expeditious and cost-effective proceedings, the Tribunal shall carry out one or more case management conferences with the parties at any time after the first session to identify uncontested facts, clarify and narrow the issues in dispute, or address any other procedural or substantive issues related to the dispute.
- Consolidation or Coordination of Arbitrations. Parties involved in two or more pending arbitrations administered by ICSID may agree to consolidate or coordinate their arbitrations. The consolidation will join all aspects of the arbitrations and will lead to all disputes resolved in one Award. A requirement for consolidation is that the arbitrations be registered in accordance with the ICSID Convention, and involve the same Contracting State (or constituent subdivision or agency of the Contracting State). The coordination has the objective of aligning specific procedural aspects of two or more pending arbitrations, but the arbitrations will remain in separate proceedings and result in separate Awards.
- Expedited arbitration rules.At any time, the parties in an arbitration under the ICSID Convention may consent to have an expedited arbitration, by jointly notifying the Secretary General in writing of their consent. If the parties consent to an expedited arbitration after the constitution of the Tribunal, the arbitration will proceed as expedited arbitration subject to all members of the Tribunal confirming their availability. If an arbitrator is not available, the arbitrator may resign. The Tribunal shall consist of a sole arbitrator or a three (3) member Tribunal, which has to be notified by the parties to the Secretary General. If there is no notification by the parties of their election, the Tribunal shall consist of a sole arbitrator appointed by the Secretary General. Rule 84 provides a procedural schedule for an expedited arbitration, which is the following:
- The Tribunal holds a first session (remotely unless the parties agree to be in person) within 30 days after the constitution of the Tribunal.
- The Claimant files a Memorial within 60 days after the first session.
- The Respondent files a Counter-memorial within 60 days after the filing date of the Memorial (there is a limit of 200 pages for the Memorial and Counter-memorial).
- The Claimant files a Reply within 40 days after the filing date of the Counter-memorial.
- The Respondent files a Rejoinder within 40 days after the filing date of the Reply (there is a limit of 100 pages for the Reply and Rejoinder).
- The hearing will take place 60 days after the filing of the last written submission.
- The parties shall file a statement and written submission on costs within 10 days after the last day of the hearing.
- The Tribunal shall render the Award as soon as possible, and not later than 120 days after the hearing.
- In case of a preliminary objection, this schedule will be adjusted, taking into account the expedited nature of the proceeding.
- The Tribunal could extend the time limits by up to 30 days for the filing of the Memorial and Counter-memorial in order to decide a dispute because of a request of document production.
- Broadened access to ICSID Additional Facility Rules. These rules now can apply even if the State party and the State of the foreign investor are not part of the ICSID Convention, or when a Regional Economic Integration Organization (“REIO”) such as the European Union is a party to the dispute.
- Transparency.With the parties´ consent, the Centre shall publish every Award, supplementary decision of an Award, rectification, interpretation, and revision of an Award, as well as a Decision on Annulment. The parties may consent to publish only a jointly redacted text of these decisions or awards. If within 60 days after the rendering of the decision or award no party objects in writing with respect to publication, it is understood that consent by the parties has been given. In case only one party objects, the Centre will publish excerpts of these documents under a specific procedure provided in the Rules, under which the parties can review the excerpts of the documents to be published.
Moreover, the Centre shall publish the following documents:
- Orders and decisions, but with any redaction agreed to by the parties, which has to be jointly notified to the Secretary General within 60 days after the order or decision is rendered. In case of disagreement of any party on the proposed redactions, the Secretary General will refer the order or decision to the Tribunal to decide any disputed redactions, and the latter will ensure that the publication does not disclose any confidential or protected information pursuant to Rule 66.
- Any written submission or supporting document filed by a party in the proceedings if the parties agree to such publication. The Centre will follow any redactions agreed to by the parties and jointly notified to the Secretary General. In case of no consent by the parties, a party may refer to the Tribunal a dispute regarding the redaction of a written submission, with the exclusion of supporting documents filed in the proceeding. The Tribunal will decide any disputed redactions, so the Centre can publish the written submission pursuant to the decision of the Tribunal. The Tribunal shall ensure that the publication does not disclose any confidential or protected information pursuant to Rule 66.
With respect to hearings, unless either party objects, the Tribunal shall allow other parties in addition to the parties, representatives, witnesses and experts, and persons assisting the Tribunal, to observe hearings. However, the Tribunal has to implement procedures to prevent the disclosure of confidential or protected information as indicated in Rule 66.
- Notice of third party funding. The party using a third party funder shall file a written notice disclosing the name and address of it, from whom it has received directly or indirectly funds for the pursuit or defense of the arbitral proceeding. If the third party funder is a juridical person, the notice shall include the names of the persons and entities that own and control such juridical person.
- Mediation proceeding. ICSID has elaborated Mediation Rules, as an alternative for the settlement of investment disputes. If there is an agreement in writing of the parties to go through mediation, any party, or the parties jointly wishing to initiate a mediation proceeding shall file a Request with the Secretary General. In case there is no prior agreement, any party wishing to initiate a mediation shall file a Request with the Secretary General and then the latter will invite the other party to inform within 60 days if it accepts the offer to mediate. If the other party accepts, the Secretary General shall inform the acceptance to the requesting party. However, if the other party rejects the offer to mediate there will be no further action and the intent of mediation will end. There should be one or two mediators, and each mediator shall be appointed by agreement of the parties.
- Fact Finding proceeding.Parties interested in the implementation of a fact-finding proceeding pursuant to the ICSID Fact-Finding Rules shall file a joint request with the Secretary General. The parties will appoint a Fact-Finding Committee comprised of one person or any uneven number, which will provide an impartial and targeted assessment of facts related to an investment. The proceeding will terminate with the issuance of a notice by the Secretary General, the issuance of a Report elaborated by the Fact Finding Committee, or a notice from the parties that they have agreed to put an end to this proceeding.
With these relevant amendments, ICSID is contributing to the development of international investment law, by adapting and responding to critics of the system, with the goal of providing a more adequate, cost-effective, less paper-intensive, and time-efficient system for the settlement of investment disputes between States and foreign investors.
In addition, the incorporation by ICSID of alternative methods such as mediation and a fact-finding proceedings is a correct step to provide users with not only arbitration and conciliation proceedings, but also with something different that the end seeks to put an end to an investment dispute.
ICSID has stated that over the coming months it will provide guidance notes for users to learn about the application of the updated rules.