New ICSID Rules Offer Broader Access, Greater Transparency And More Streamlined Proceedings - Court Procedure

On 21 March 2022, the Member States of the International Centre for Settlement of Investment Disputes ("ICSID") approved a comprehensive set of amendments to ICSID's rules for resolving disputes between foreign investors and host States (the "Rules"). The amended Rules come into effect on 1 July 2022 and apply to ICSID proceedings filed on or after that date.¹

The current amendments reflect a more than five-year process of consultation, negotiation and commentary, which aimed "to modernize, simplify, and streamline the rules, while also leveraging information technology to reduce the environmental footprint of ICSID proceedings." Some of the amendments mirror Debevoise's Efficiency Protocol to promote efficiency in international arbitral proceedings.

A summary of the salient amendments to the Rules is below.

Broadening Access to ICSID

The amendments to the Additional Facility Rules broaden access to ICSID's rules and services by including within their scope (i) any investment dispute, as long as the parties consent to their use, and (ii) disputes involving regional economic integration organizations ("REIOs"), such as the European Union. Previously, parties could only have recourse to ICSID's arbitration if: (i) the dispute was between a Contracting State and a national of another Contracting State (under the ICSID Convention, and Arbitration and Conciliation Rules); or (ii) at least one party to the dispute was a Contracting State or a national of another Contracting State (under the ICSID Additional Facility Arbitration and Conciliation Rules). The amendments represent a significant expansion of access to ICSID's rules and services. For example, access is now available in disputes between a national of a non-contracting State, such as Brazil and India, against another non-contracting State, with party consent.

Measures to Enhance Transparency

The Rules introduce a new Chapter X to enhance public access to ICSID arbitration orders and awards.

ICSID will publish every award and annulment decision following consultation with the parties. If the parties object, the Secretary-General will publish excerpts after considering input from the parties, including on redactions.²
ICSID will publish all orders, decisions and written submissions of a party filed in the proceedings, and the parties will have an opportunity to propose redactions.³
Absent party objection, non-parties unrelated to the proceedings will be able to attend hearings.⁴
Non-disputing State parties to the underlying investment instrument will have a right to make submissions while all other non-disputing parties—for example, a non-governmental or regional organization—may request tribunal permission to do so. ⁵ In either case, the tribunal may grant them access to relevant submissions and documents from the proceedings.
The Rules make clear that the publication of awards, orders, decisions and written submissions, as well as the participation of non-parties in hearings, will be subject to the withholding of confidential and protected information from disclosure. Such information is defined in ten categories, including: by the applicable law; by the law of the State party if it concerns information of a State party; in accordance with a tribunal's orders and decisions; by party agreement; as constituting confidential business information or protected personal information; because considered by a State party to be contrary its essential security interests; or because it would aggravate the dispute or undermine the integrity of the arbitral process.⁶
These measures aim to improve legitimacy of the investor-state dispute resolution system. It remains to be seen if non-disputing parties will increasingly participate in proceedings, particularly in highly topical areas such as ESG and energy transition.

Footnotes

1 ICSID Convention, Article 44.

2 Revised Arbitration Rule 62.

3 Revised Arbitration Rules 63 and 64.

4 Revised Arbitration Rule 65(1).

5 Revised Arbitration Rules 67, 68.

6 Revised Arbitration Rule 66.

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