ICSID rule amendment process: Third working paper released in August 2019, consultation with states scheduled for November 2019, approval expected for October 2020

On August 16, 2019, the ICSID secretariat released the third working paper featuring proposed rule amendments, based on inputs from member states and the public. Proposed amendments include language on expedited arbitration, time limits to which tribunals would be subject, the ability for tribunals to name independent experts and security for costs, among others.

The ongoing rule amendment process was announced in October 2016 during the meeting of ICSID‘s Administrative Council, which is the Centre’s governing body and features representatives from its member states. The process is devoted mainly to possible revisions of procedural rules and regulations. The original ICSID Arbitration Rules date back to 1967 and were amended three times before the current process—in 1984, 2002 and 2006.

In addition to the working papers, there are also two compendiums of state and public comments on them, the latter of which features feedback received by late June 2019. (Editor’s note: one set of public stakeholder comments featured in the latest compendium was submitted by IISD, the publisher of ITN.)

According to the third—and most recent—working paper, the ICSID secretariat will hold an in-person consultation on the document with ICSID member states from November 11 to 15, 2019. The secretariat’s goal is for the November consultation to be “the final, or at least penultimate, consultation before the amended rules are placed before the Administrative Council for a vote.”

In the previous working paper, the secretariat had aimed for a vote on the proposed amendments during the council’s October 2019 meeting. Given that the consultation with member states will take place after this year’s council meeting, the target has been pushed to October 2020.

The ICSID Convention itself is not subject to change under this amendment process. ICSID is an arbitration institution housed within the World Bank Group and which is tasked with administering investor–state disputes. The latest edition of ICSID caseload statistics found that 56 cases were registered in 2018 under the ICSID Convention and Additional Facility Rules, the latter of which involves cases that fall outside the scope of the treaty. By June 30, 2019, 22 cases had been registered in 2019. The grand total over ICSID’s history under ICSID and Additional Facility Rules numbers at 728, including both treaty-based and contractual disputes.