Revue - Les Cahiers de l'Arbitrage N°1-2023 - 14

ARTICLES - DEBATES
Introduction
2022 witnessed the adoption of a new set of ICSID Arbitration Rules (the
" Arbitration Rules " ), a phenomenon that last occurred in 2006. The adoption of
the 2022 ICSID Arbitration Rules (the " 2022 Rules " ) is significant because the 2022
Rules are not merely an update of their predecessor, the 2006 ICSID Arbitration
Rules (the " 2006 Rules " ). Instead, the ICSID Secretariat commendably accepted the
challenge of comprehensively revising the Arbitration Rules. The 2022 Rules are the
result of a lengthy consultation process that started in October 2016 and included
the participation of 75 representatives of the ICSID Administrative Council as well
as the input from stakeholders such as law firms, arbitrators, and academics. Their
input and the evolution of the 2022 Rules were recorded in six working papers. 2
On 2 August 2018, the ICSID Secretariat published Working Paper 1, which
stated that the goal of the reform of the Arbitration Rules was to offer " States
and investors a range of modern dispute settlement options " which could be
used individually or in parallel. 3
modernising the ICSID procedure. 4
The ICSID Secretariat sought to achieve this by
There was a general perception that the 2006 Rules, no longer offered a
competitive option for investors and States to resolve their disputes efficiently. Other
arbitration rules commonly used in investment disputes (e.g., the 2013 UNCITRAL
Arbitration Rules and the Arbitration Rules of the Arbitration Institute of the
Stockholm Chamber of Commerce), had introduced progressive changes that were
absent in the 2006 Rules. This created the perception that ICSID needed to catch up
to its competitors. 5
Simultaneously, UNCITRAL Working Group III 6
was considering
significant reforms to the investor-state dispute settlement ( " ISDS " ) system.
Against this background, the ICSID Secretariat sought to modernise the ICSID
procedure by, inter alia, focusing on multiparty claims and consolidation of cases
and enhancing transparency. 7
This article analyses the effectiveness of the 2022 Rules in promoting the
modernisation of ICSID Arbitration. It first describes key provisions introduced to
modernise ICSID Arbitration. It subsequently analyses, from a practical perspective,
whether those key provisions of the 2022 Rules effectively promote the
modernisation of ICSID Arbitration. It highlights certain deficiencies in the wording
of key provisions of the 2022 Rules and problems that parties and tribunals will
likely experience in arbitrations under the 2022 Rules. Generally, while some
provisions of the 2022 Rules are a welcome development for ICSID arbitration,
more could have been done to ensure that the 2022 Rules effectively modernised
ICSID proceedings. This is unfortunate as future amendments to the 2022 Rules are
unlikely to occur soon.
2. K. Böckstiegel in: Happ/Wilske, ICSID Rules and Regulations 2022, 2022, Introduction, ¶ 13.
3. ICSID Secretariat, Proposals for Amendment of the ICSID Rules Working Paper No. 1,
2 August 2018 ( " Working Paper 1 " ), ¶ 5.
4. Working Paper 1, ¶ 5.
5. Y. Kryvoi, ICSID Arbitration Reform: Mapping Concerns of Users and How to Address Them,
Kluwer Arbitration Blog, 11 November 2018.
6. Discussions on ISDS reform began at the 34th
in Vienna on 27 November 2017.
7. Working Paper 1, ¶ 5.
12
The Paris Journal of International Arbitration 2023‑1
Session of the UNCITRAL Working Group III

Revue - Les Cahiers de l'Arbitrage N°1-2023

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°1-2023