On 12 November 2021 the ICSID Secretariat released the final in a series of six working papers on proposals to comprehensively amend its procedural rules for resolving international investment disputes between investors and states.
ICSID says these amendments set in motion “the most comprehensive and transparent rule-amendment process” in its history. With them, ICSID is seeking to significantly simplify and streamline its dispute resolution procedures for the sake of saving parties’ time and costs.
In this regard, the amendments include an option to resolve disputes using expedited arbitration rules, as well as expanding access to ICSID’s Additional Facility Rules for Arbitration and Conciliation to Regional Economic Integration Organizations, like the European Union.
In a push towards “greater transparency”, the amendments envisage the publication of even more awards, decisions and orders – as well as impose obligations on parties to make disclosures regarding third-party funding.
In this regard, the proposals regarding third-party funding could see parties disclosing the names and addresses of third-party funders, the identities of any beneficial owners and decision-makers as well as details about the funding agreement and the funder’s case history.
Equally controversially, the amendments envisage improvements to make it easier for non-disputing treaty parties to participate in proceedings.
In this regard, external parties could, for example, be granted access to relevant documents filed in the proceedings (although this is subject to being blocked by one of the disputing parties). External parties could also enjoy the opportunity to make written or oral submissions regarding the interpretation of a treaty in issue – particularly on issues related to the environment, sustainability and the green transition.
The release follows a five-year consultative process with Member States and the public. For now, it remains to be seen whether these amendments will improve public perception as to the overall legitimacy of investor-state dispute settlement.
The amendments are expected to be voted on by Member States in early 2022. A two-thirds majority is required for amendments to the ICSID Convention Rules, while an absolute majority will suffice for amendments to the Additional Facility Rules, Fact-Finding, and Mediation Rules.