INVESTMENT ARBITRATION AND ICSID
The purpose of this document is to give information regarding the questions frequently asked by ICSID member States or investors. Please do not take this document as a legal advice or policy guidance and be noted that it is not a comprehensive guide to ICSID arbitration.
ICSID arbitration is a dispute resolution method for foreign investors and States to resolve the disputes arising from foreign investments. International investment treaties, investment contracts or investment legislation may refer parties to ICSID arbitration. Usually, this method of dispute resolution is commenced by foreign investors against the member states of the ICSID.
Significant Considerations Before Arbitration
Before the proceedings begin, it is more likely for parties to find a common ground to settle than the other stages of arbitration. For cost-efficiency purposes, States should evaluate the pros and cons of both settlement and arbitration as soon as they have been notified of a dispute.
More than one government entity may be involved in the emerging dispute. Therefore, a Respondent State should first identify the relevant authorities to participate in the proceedings, form a team to create an efficient decision-making process. Appointing a Ministry or a public agency which is related to the nature of dispute to lead the arbitration procedure would be a critical step.
One of the most important stage is to consult with a team of experts for the representation of State in the proceedings as early in the process as possible. There are various models of legal representation and they all have respective advantages and disadvantages, such as in-house counsel, outside counsel, and a combination of both.
The parties must decide the overall case strategy with their consultants. Among other things a party should consider the following: Consistency and credibility, risk management, tribunal constitution, pre-conditions to arbitration, merits, state responsibility, preliminary objections, jurisdiction and admissibility, provisional measures, evidence and document production, damages.
General Steps in an ICSID Arbitration
The usual steps in an ICSID arbitration are: (i) Request for arbitration, (ii) screening and registration, (iii) the constitution of the tribunal, (iv) tribunal’s first session with the parties, (v) written procedure, (vi) oral procedure, (vii) post-hearing submissions and proceedings, (ix) award.
Request for Arbitration
Parties should commence the proceedings by filing a Request for Arbitration (RFA). The RFA includes the information regarding the identity of the parties, the details of the investment, the nature of the dispute, the relevant regulations and law, and the parties’ consent to arbitration. Factual explanations and legal arguments are presented later in the proceedings.
To keep in mind, there are some provisions in the investment contracts or BITs concerning time periods for the amicable settlement or an obligation to conduct a conciliation process before the parties can apply to the ICSID arbitration.
The Constitution of the Tribunal
The parties can decide on the number of arbitrators and the method of their appointment. Besides, such details may also be stipulated in the international treaty, contract or legislation applicable to the dispute.
Selection of Arbitrators
Arbitration lawyers usually examine the experience, past awards, and academic writings of potential arbitrators. Some of the criteria usually considered by the parties are expertise in international investment law and public international law, experience in arbitration, in particular investment arbitration, expertise in the subject of law concerning the case, conflict of interest and etc.
First Session of the Tribunal
The Tribunal must hold its first session within 60 days subsequently its establishment. The first session of the Tribunal is, generally, a procedural meeting to discuss; the applicable rules of arbitration, costs of the arbitration, the timetable of the process, procedural issues, and the handling of evidence.
The Written Procedure
The parties usually file two rounds of pleadings. The Claimant files a Memorial in the first round and a Reply in the second round. The Respondent files a Counter-Memorial in the first round and a Rejoinder in the second round. Each pleading has supporting materials at the attachments, often consist of witness statements, expert reports and/or documents which support the facts.
The Oral Procedure
During the hearings, each party presents its case to the Tribunal and examine fact and witness statements submitted by the opposing party. Each party presents its opening statement, followed by the examination of witnesses and experts, and concludes with presenting its closing arguments.
Post-hearing submissions usually consist of briefs and submissions or statements of costs.
Closure of Proceedings
After the hearings are concluded, the Tribunal will issue a letter declaring the proceeding is closed. Either party loses its opportunity to submit any evidence once the proceeding is closed.
The ICSID Secretariat sends out the certified copies of the award to the parties and deposit the original in the archives of the Centre. Without the acceptance of both parties, The ICSID Secretariat cannot publish the award but must make excerpts of the award public.
The post-award remedies available in ICSID Convention are rectification, interpretation, revision or annulment.
For further information please contact with us at firstname.lastname@example.org. More about ICSID arbitration and detailed explanations about each step in the process can be found on the D&C IntLaw website.