Author

Ms Katerina Daskalopoulou

Legal Intern at WIPO, LL.M. Candidate - MIDS

ICSID

I. Definition

1.

ICSID is the world’s leading institution devoted to international investment dispute settlement. Out of 1023 known investor-state dispute settlement cases, 603 have been administered by ICSID to date.1 The Centre is designed to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States.2 ICSID comprises an Administrative Council and a Secretariat. Each ICSID member State has one seat on the Administrative Council. The Administrative Council plays no role in the administration of individual cases. This separation of functions reinforces the operation of an impartial and independent global dispute resolution facility. The Centre also maintains a Panel of Conciliators and a Panel of Arbitrators.

II. History

2.

ICSID is an institution established in 1966, by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”). The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the World Bank to further the Bank’s objective of promoting international investment. The ICSID Convention was drafted between 1961 and 1965 and entered into force in 1966. As of today, it counts 163 Member States (154 Contracting States and 9 Signatory States).

III. Independence and Immunities

3.

ICSID and its offices enjoy full independence and immunity under the ICSID Convention.3 The Secretary-General or the Administrative Council may waive this immunity.4

IV. Administrative Council

4.

The Administrative Council is the plenary organ of the Centre and is chaired by the President of the World Bank.5 It is composed by the same persons as the World Bank’s Board of Governors. Each Contracting State has one representative in the Council. Its functions include the adoption of the rules of institution and procedure of arbitration and conciliation proceedings, the adoption of the administrative and financial regulations of the Centre and the determination of the conditions of service of the Secretary-General and Deputy Secretary-General.6

V. Secretariat

5.

The ICSID Secretariat deals with individual cases. It consists of about 70 professionals who administer arbitration and conciliation cases at the Centre and support other ICSID activities. It is led by the Secretary-General, who is elected by resolution of the Administrative Council and is nowadays assisted by two Deputy Secretary-Generals.7 The Secretary-General’s functions include the administrative support to arbitral proceedings, screening of requests for arbitration and the authentication of awards rendered under the ICSID Convention.8 The Secretary-General also serves as appointing authority for non-ICSID arbitrations.

VI. Panels of Conciliators and Arbitrators

6.

The Panels are lists of persons who may act as conciliators or arbitrators, designated by the Contracting States.9 The Parties are not restricted to the Panels in selecting conciliators and arbitrators. The people on the Panels must be persons of high moral character and recognized in the in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators.10

VII. Ad hoc Annulment Committees

7.

The ICSID Convention provides for a unique annulment mechanism, under which ad hoc committees may annul awards for specific grounds regarding the legitimacy of proceedings provided in the Convention.11 They consist of three persons, appointed by the Chairman of ICSID’s Administrative Council.12 To this date there are 115 known annulment cases, out of which 48 have been dismissed; 4 have fully annulled the award; 9 have partially annulled the award; 33 are pending; and 21 were discontinued.13

VIII. Cases administered

8.

The Centre administers investment disputes under the ICSID Convention. The jurisdiction of ICSID requires disputes arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.14 Parties must consent to the Centre’s jurisdiction, either in an international treaty or the host-State’s law, or in a direct agreement between the investor and the State. In 1978, the ICSID Additional Facility Rules were adopted, authorising the Secretariat to administer certain disputes falling outside the scope of the ICSID Convention. These are (i) fact-finding proceedings; (ii) conciliation or arbitration proceedings for the settlement of investment disputes between parties one of which is not a Contracting State or a national of a Contracting State; and (iii) conciliation and arbitration proceedings between parties at least one of which is a Contracting State or a national of a Contracting State for the settlement of disputes that do not arise directly out of an investment, provided that the underlying transaction is not an ordinary commercial transaction.

IX. Caseload Statistics

9.

The ICSID Caseload Statistics are published by the ICSID. They provide a profile of the caseload of ICSID from the first case registered with the Centre until today and statistics on various aspects of international investment cases per calendar year. The statistics provided relate to the total number of cases registered by calendar year; the number of non-ICSID cases administered by the Centre; the basis of consent to establish the jurisdiction of the Centre; the geographic distribution of ICSID cases, by State party invoked; the distribution of ICSID cases by economic sector; the outcomes of ICSID arbitrations; statistics on annulment proceedings; and statistics on arbitrators, conciliators and ad hoc committee members appointed in ICSID cases.

10.

Based on the ICSID Caseload Statistics published in 2020, 35 new cases have been filed with the Centre under the ICSID Convention; 62% of the basis of consent to establish the Centre’s jurisdiction emanated from bilateral investment treaties; 26% of cases were related to South America; 26% of cases were connected to the oil, gas and mining sector, while another 26% were connected with the electricity power and other energy sector; 78% of the cases were decided by the tribunal; 43% of the awards concluded in 2019 upheld the claims in full or in part, while 55% of the cases decided in 2019 upheld the claims in full or in part; 44% of the arbitrators appointed were from Western Europe; and 81% of the arbitrators appointed were male.

Bibliography

Dolzer, R., and Schreuer, C., Principles of International Investment Law, 2nd ed., 2012.

Parra, A.R., The History of ICSID, 2nd ed., 2017.

Reed, L., and Others, Guide to ICSID Arbitration, 2nd ed., 2011.

Schreuer, S., The ICSID Convention: A Commentary, 2nd ed., 2009.

Schreuer, S., International Centre for Settlement of Investment Disputes (ICSID), in Wolfrum, R. (ed.) The Max Planck Encyclopedia of Public International Law, 2012.

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