In Dispute: ICSID looks to re-evaluate and reshape

The International Centre for Settlement of Investment Disputes (ICSID) is celebrating its 50th anniversary. The World Bank facility resolves a sizeable proportion of the world’s FDI disputes, some of which are clear-cut nationalisation or expropriation disputes.

However, an increasing number of cases are more regulatory in nature, such as the (failed) effort by the Philip Morris tobacco company to argue that Uruguay's strict tobacco regulations were in breach of international law. Arbitrators increasingly must determine what is legitimate regulation and what is a breach of contract or international treaty.

Recently, ICSID revealed it is launching a move to revise its rules and regulations, for the first time in a decade.

Some of the centre’s focus will be on reducing the time and cost of arbitration. It can take many years to adjudicate ICSID cases, and some move glacially. Although Venezuela clearly expropriated Conoco-Phillips’ oil investments a decade ago, an ICSID arbitration launched by Conoco in 2007 has still not reached a hearing on the damages that Venezuela should pay.

Another issue on ICSID’s radar is the increasing public demand for transparency. Citizens groups and journalists rightly observe that arbitrations may have billion-dollar implications for public treasuries, or involve a form of judicial review of sensitive government regulations.

Yet ICSID’s arbitration process leaves it to the discretion of the disputing parties as to whether disputes should be open to the public. ICSID could go further and make transparency the default setting in its procedural rules, as it is in US judicial proceedings.

Another perennial issue for ICSID is whether it should try to bring more permanence to a process of ad-hoc arbitration, perhaps by creating a special appeals body that could review all arbitration decisions to ensure their consistency and quality.

The last time ICSID reviewed its rules and regulations in the mid-2000s, such a proposal was floated – but ultimately it was nixed by some powerful ICISD member countries. Since then, however, public criticism of investor-state arbitration has grown, and several powerful actors, including the EU, are urging the creation of more judicialised structures. This would lend greater legitimacy to a process charged with resolving high-dollar disputes that could have serious public policy implications.

In the months ahead, ICSID will be getting an earful from its member governments – but also from stakeholders including investors, lawyers and non-governmental organisations – over what investor-state arbitration should look like in future.

Luke Eric Peterson is the publisher of InvestmentArbitrationReporter.com, a specialised news and analysis service focused on FDI disputes.