The amendments are the most wide-ranging in ICSID’s 55-year history, and are a culmination of extensive dialogue in a series of six working papers released over five years. The process leading up to the adoption of the amended ICSID rules is considered to be the most transparent and collaborative process in ICSID’s history.

ICSID is currently the only multilateral institution with a specific mandate to facilitate the peaceful resolution of international investment disputes under treaties, contracts and investment laws. The ICSID Convention Rules and Regulations were adopted in 1967 and the Additional Facility Rules were adopted in 1978.

The ICSID rules establish procedures for arbitration, conciliation, fact-finding and mediation. These are the only rules of procedure that have been specifically designed for disputes between foreign investors and their host states.

The key attributes of the ICSID amended rules are outlined below.

Broader access to ICSID’s dispute resolution rules and services

The jurisdictional requirements under ICSID’s Additional Facility Rules have been modified, providing states and investors access to Additional Facility arbitration and conciliation where one or both disputing parties are not an ICSID contracting state. In addition, regional economic integration organisations may also be a party to proceedings under the amended Additional Facility Rules.

This is a material change, as it now extends access to ICSID arbitration and conciliation to non-ICSID state such as Namibia and South Africa and their national, regional or continental organisations such as the African Union. These parties may now choose ICSID arbitration as the primary dispute resolution mechanism in investment laws, investment agreements or treaties.

Transparency enhancement

The updated ICSID arbitration rules will further enhance public access to ICSID orders and awards, which benefits legal consistency in tribunal decision making. At the same time, the rules assist parties in identifying confidential information and specify that protected personal information cannot be publicly disclosed.

Third-party funding disclosure requirement

Disputing parties now, for the first time, have an ongoing obligation to disclose third-party funding, including the name and address of the funder, to avoid conflicts of interest that may arise out of such financing arrangements.

Time and cost benefits

The ICSID rules for arbitration and conciliation have been updated to further reduce the time and cost of cases, including mandatory timeframes for rendering orders and awards.

Expedited arbitration rules

There are new, expedited arbitration rules, which aim to cut case times in half when adopted by parties.

New procedural rules for mediation and fact-finding

New procedural rules were developed for mediation and fact-finding. The mediation rules offer a process to support a negotiated resolution of a dispute between parties, while fact-finding provides an impartial and targeted assessment of facts related to an investment.

Look out for the guidance notes that will be published by ICSID in the coming months to assist users in applying the amended ICSID rules.