ICSID releases draft of new rules

The International Centre for the Settlement of Investment Disputes (ICSID) has published the proposed amendments to its rules. The proposals mark the latest development in ICSID’s rule amendment project which aims to modernise the ICSID rules and make the dispute resolution process more time and cost effective and less paper-intensive. ICSID describes the proposed changes as the most far-reaching amendments in 50 years.

For more on the background to ICSID’s rule amendment project, see our post from last year.

The draft rules are now available to view via the ICSID website. Some of the main proposed amendments include:

  • Changes to ICSID’s administrative and financial regulations to allow more flexible decision-making by the administrative council. Currently, the council meets annually, with additional meetings only taking place it they relate to a matter that must be decided before the next meeting.
  • A new checklist within the rules which sets out what should be included in a request to commence arbitration or conciliation. This is intended to expedite the registration of a new case and its initial stages.
  • All filing to be done electronically unless special reasons exist to preserve paper. New time limits are also proposed for various procedural steps.
  • A new set of rules for expedited proceedings which includes additional and shortened timelines.
  • A requirement that parties disclose whether they have third-party funding and the source of that funding as soon as a claim is commenced. It is also proposed that the name of the funder will be provided to the potential arbitrators prior to their appointment to avoid conflicts of interests. There will be an obligation on the arbitrators to disclose any relationship they might have with the funder.
  • Revisions to the process for challenging arbitrators, including a new expedited schedule for parties filing a challenge (parties must file a disqualification motion within 20 days of the basis of the challenge arising, whereas the current requirement is simply that it is made “promptly”). Also under the proposed changes, an arbitration is no longer “automatically suspended” following the filing of a challenge, but proceedings would continue with the challenged arbitrator unless the parties agree otherwise.
  • Publication by ICSID of legal excerpts of the award, subject to an objection by a party, in line with a process and timeline included in the new rules. Awards made under the ICSID additional facility rules, and therefore not subject to the ICSID Convention, will be published with confidential information redacted.
  • A new set of rules on mediation in response to calls from states and investors to provide a greater breadth of dispute resolution tools.

Amendments to the ICSID rules require the approval of two-thirds of ICSID Member States. The next key step in the project will be a meeting of Member States in Washington on 26 September 2018, where they will discuss the proposals. States and the public are invited to submit written comments on the proposals until 28 December 2018.

ICSID has set up a dedicated area of its website on the proposed amendments.