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The International Centre for Settlement of Investment Disputes (ICSID) recently released its caseload statistics for the calendar year 2022 (available here). The latest caseload statistics provide a comprehensive account of case-related trends in 2022, as well as data on all ICSID cases for the past 50 years (since the very first case in 1972). In a previous post, we covered the key casework trends up to 30 June 2022 as per ICSID’s Annual Report for FY2022. The key highlights from the 2022 caseload statistics are discussed below.
Caseload trends in the past decades
Part I of the report contains statistics of all cases ever registered and administered by ICSID. As of December 31, 2022, ICSID has registered 910 cases under the ICSID Convention and Additional Facility Rules. Amongst these 90.2% cases were ICSID Convention Arbitration cases, 8.4% were under ICSID Additional Facility Arbitration cases, 1.2% were ICSID Convention Conciliation cases, while only 0.2% cases were under ICSID Additional Facility Conciliation. Notably, in the past decade there has been a significant increase in the number of cases.
Decline in new cases registered in 2022
Part II of the report contains statistics of new cases registered and administered by ICSID in 2022. 2022 saw a sharp decline in the number of ICSID Convention arbitration cases, with only 34 ICSID Convention Arbitration cases being registered in 2022 as compared to 66 in 2021. While 7 ICSID Additional Facility Arbitration cases were registered as compared to 0 the previous year, the total number of cases new cases registered with ICSID have fallen.
Basis of consent
As in the past, in 2022, most cases were brought under bilateral investment treaties (54%). Interestingly, 22% cases were brought under the Energy Charter Treaty (“ECT”). The ECT currently faces a slew of withdrawals by member-states on the ground that it affords investment protection to investors in traditional fossil fuel projects, impacting transition to renewable energy. Of the remaining cases, 12% were under Investment Contracts between the Investor and the Host-State, 10% under multilateral regional free trade agreements; and 2% under domestic investment law of host state.
Distribution by region
Thirty different States were named as respondents in 41 cases registered in 2022. Continuing with the overall trend, most cases were accounted by Eastern Europe (27%) and South America (17%). There was almost an even spread amongst other regions- Middle East & North Africa (14%), Western Europe (12%), Central America & the Caribbean (10%), South & East Asia & the Pacific (10%), North America (5%) and Sub-Saharan Africa (5%). Amongst the individual countries, Romania, Slovenia and Venezuela are of particular note and accounted for 3 new cases each.
Economic sectors involved
Extractives and energy sectors continued to account for the largest share of cases. 24% percent of cases registered in 2022 involved oil, gas and mining, and 20% related to electric power and other energy sources. These were followed by finance, and information and communication (each with 12% of disputes) while construction, other industries, and water, sanitation and flood protection accounted for 8% each.
Case outcomes
On a historical average over past 50 years, the outcome of ICSID cases has been balanced between investors and states. 48% cases have been decided in favour in investors (fully or partly) and 52% in favour of states. This continued in 2022 with 56% of the awards the tribunal upheld the claims in part or full, while in 44% of the awards the tribunal:
In 2022, the number of settled or discontinued cases rose sharply to 51%, as compared to the average of 36% over the past five decades. This is reflective of a growing trend towards parties settling and discontinuing cases in recent years.
Diversity in appointments
Continuing with historical trend, arbitrators from Western Europe continued to dominate 2022 arbitrator appointments (40%). North America (25%) and South America (20%) follow. Similarly, women constituted 23% of the appointments in 2022, compared to 27% in 2021 and 23% in 2020. The breakdown of the appointment of women to the tribunal by various parties was as follows:
|
Appointed by |
Women |
Men |
|
Co-Arbitrators |
40% |
60% |
|
ICSID |
37% |
63% |
|
Jointly by parties |
32% |
68% |
|
Claimants |
10% |
90% |
|
Respondents |
13% |
87% |
These figures indicate that there is a lot more work which can be done to increase equal representation in tribunal appointments. While there are some steps in the right direction, it is important for practitioners, institutions and parties to be aware of this, as addressing such issues can only enrich international arbitration and its community.
Akshay Sewlikar would like to thank Sai Anukaran for his assistance in preparing this article.
21 February 2023
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