What you need to know regarding the ICSID third draft of rule changes
On 16 August 2019, ICSID released its latest proposals for amendment of its procedural rules for the resolution of international investment disputes. The key changes are:
- Expanding the requirements as to what should be included in a Request for ICSID Arbitration (including an estimate of the damages sought, an indication that the requesting party has complied with the conditions of the instrument of consent for submissions of the dispute). This may require a party to state whether, for example, any provisions regarding limitation periods or cooling-off periods have been complied with.
- A move towards the electronic filing of documents, rather than paper filing.
- More comprehensive provisions regarding the disclosure of the details of third-party funding (which now includes a donation or a grant).
- Document discovery is not automatic the Tribunal should consider whether to have discovery and its scope in the first session.
- A provision on security for costs, requiring tribunals to consider all relevant circumstances before deciding whether to order security for costs including the partys ability and willingness to comply with an adverse decision on costs, any effect of providing security for costs on the partys ability to pursue a claim and its conduct. The involvement of a funder may be raised as a relevant circumstance but is not enough in and of itself to warrant an order for security for costs.
- A provision that consent to publish the Award shall be deemed to have been given if no party objects in writing to such publication within 60 days after the dispatch.
- New guidelines for determining confidential and protected information.
ICSID Member States are meeting in November 2019 to consult on the latest draft proposals. Amendments to the ICSID Convention Rules require the approval of two-thirds of Member States, and a simple majority in the case of the Additional Facility Rules, Fact-Finding, and Mediation Rules.
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