19 November 2018

10 Things you need to know about the new draft ICSID Rules

By Edmund Northcott (London) and Acacia Hosking (Perth)

  1. All filings will be electronic! Parties will benefit from lower printing costs and a quicker, simpler process (Rule 4).
  2. Disclosure of third-party funding, and the source of such funds, must be provided at the outset of proceedings, or at the point when a funding agreement has been entered during an arbitration (Rule 13).
  3. To publish an award ICSID still requires the consent of both parties but a new provision deems consent given if no objection is raised within 60 days of the award being published (Rule 44). However,  ICSID will still publish legal extracts where a party does object.
  4. Security for costs (Rule 51) and bifurcation (Rule 37) each receive their own stand-alone rule offering clarity to parties making these applications.
  5. The process for challenging arbitrators has been amended – parties must now file a disqualification motion within 20 days after the basis for a challenge arises, rather than “promptly” (Rule 14).
  6. New timelines for issuing awards: within 60 days after the last submission on an application to dismiss a case for manifest lack of legal merit; 180 days after the last submission on a preliminary objection; and 240 days after the last submission on all other matters (Rule 59).
  7. Parties can agree to a new expedited procedure but must do so within 20 days from the notice of registration (Rule 69) and must select a tribunal within 30 days from registration (Rule 74). 
  8. ICSID listened to requests from both states and investors and have introduced new sets of rules governing conciliation and mediation (Annexes C and E respectively). 
  9. ICSID is working with UNCITRAL on a code of conduct for arbitrators, but until such a code is ready ICSID has expanded the disclosure obligations for arbitrators (Rule 36) and regarding third-party  funding (Rule 21).
  10. Finally, ICSID have re-drafted the rules to be genderneutral and resolved the inconsistencies between the French, Spanish and English versions.
The draft of the new ICSID Rules can be found here: https://icsid.worldbank.org/en/Documents/Amendments_Vol_Two.pdf.
ICSID member states are meeting in Washington, DC, on 26 September 2018 to discuss the proposed amendments so watch this space for further developments.

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