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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Advances in technology and increased international fiscal co-operation have made global personal tax compliance initiatives pop up in abundance in recent years. To compound the issue, the Russian invasion of Ukraine and the corresponding economic fallout prompted domestic governments to increase transparency in relation to investments held by wealthy foreign individuals (with a focus on oligarchs).
In the UK, in the context of the cost-of-living crisis, public opinion certainly seems to be in favour of increased accountability for high-net-worth individuals (eg, on 9 October 2022, 63% of Britons surveyed thought that “the rich are not paying enough and their taxes should be increased”).1
HMRC is one of the most sophisticated tax collection authorities in the world and the department is making significant investments in technology in the field of compliance work; they are well placed to take advantage of new international efforts to increase tax compliance, particularly considering the already extensive network of 130 bilateral tax treaties in the UK (the largest in the world).2 The UK was also a founding member of the OECD’s Joint International Taskforce on Shared Intelligence and Collaboration (JITSIC) forum.
This article discusses the main developments in support of the increased focus on international transparency and personal tax compliance in the UK. There are other international fiscal initiatives, particularly in the field of corporate taxation, but such initiatives are beyond the scope of this article.
It should be noted that a somewhat piecemeal approach, with constant tinkering makes compliance difficult for the taxpayer and is often criticised for lacking the certainty that a stable tax system needs to thrive.
This article was first published with ThoughtLeaders4 Private Client Magazine
