The International Centre for Settlement of Investment Disputes ("ICSID") amended its arbitration and conciliation rules and established new standalone rules on mediation and fact-finding ("Rules").1 The amendments to the Rules were approved by the majority of the ICSID member states on 21 March 2022 and recently entered into force on 1 July 2022. The main purpose of the amendments was to make the Rules more accessible by modernizing and streamlining them, increasing the time and cost efficiency and reducing the environmental footprint of proceedings through the use of technology, as well as providing greater transparency. With the amendments, ICSID announced that it would release new guidance notes on the Rules ("Guidance Notes") to help practitioners navigate ICSID procedures under the Rules. The highly anticipated Guidance Notes were published on ICSID's website on 22 July 2022.2
You can refer to our previous legal alert for an overview of the most important amendments in the Rules.3
The Guidance Notes are formatted as a somewhat interactive page on ICSID's website where anyone can freely navigate to find concise explanations and instructions regarding all major stages and concepts of ICSID arbitration, conciliation, mediation and fact-finding procedures. They provide an overview of all the above-mentioned procedures and give an excellent outline of different stages of the proceedings as well as the applicable rules and important concepts. In fact, one outstanding feature of the Guidance Notes is that they simplify otherwise seemingly complicated procedures by representing different stages and outcomes via visuals and charts.
As explained above, the Guidance Notes provide a concise roadmap of each stage of proceedings that is very useful for all arbitration practitioners. In terms of the initial stages of arbitral proceedings, the Guidance Notes begin with an explanation on how to file a request for arbitration and they specify both the mandatory and recommended contents of a request for arbitration. Furthermore, the Guidance Notes include instructions and essential information for practitioners regarding to electronic filing, which has been made the default method of filing in arbitration with the Rules. The Guidance Notes also explain the updated procedure of the constitution of the arbitral tribunal and the appointment of arbitrators.
An important aspect of the amendments to the Rules was time and cost efficiency. Similarly, the Guidance Notes set out a comprehensive table of different time limits applicable both to the parties and the arbitral tribunal, such as the time limit for the proposal for disqualification of an arbitrator, or an objection that a claim is manifestly without merit. To help practitioners navigate the new time limits under the Rules, the Guidance Notes include visual representations of which time limits can be extended as well.
Another amendment related to the efficiency of the proceedings was bifurcation which already existed in practice but was not previously codified. Accordingly, the Guidance Notes include an updated and more detailed chapter on bifurcation including applicable time limits and visual representations of the procedure.
An important clarification in the Guidance Notes that also existed in its previous iteration is how public access will be established in an open hearing. Accordingly, the hearing will be broadcast in a separate room that will be open to public and the parties can agree to webcast a video link. The Guidance Notes reiterate that the arbitral tribunal will take necessary measures to protect confidential and protected information and they provide that this can be done by suspending the broadcast during the parts where confidential or protected information will be discussed.
Consolidation and coordination of arbitrations was another novelty in the Rules, which found itself a chapter in the Guidance Notes. This chapter simply explains the function of these concepts as well as their differences and briefly sets out the related procedure.
Transparency was another important pillar of the amendments, most notably the presumption of consent regarding the publication of documents was reversed in favor of consent being deemed given in the case of parties' silence. As such, the Guidance Notes simplify the new provisions with regard to parties' consent to the publication of documents with visual representations for each category of document. This simple explanation is beneficial considering that publication of documents is a matter directly related to confidentiality that may concern important commercial information and parties should understand the implications of remaining silent on this issue.
In addition to the above procedures, the Guidance Notes equally provide the fundamental information regarding important concepts such as, among others, evidence, case management conferences and security for costs.
Conciliation, Mediation and Fact-Finding
Similar to the arbitration section of the Guidance Notes, all stages of proceedings are explained with a clear roadmap for the other procedures, namely conciliation, mediation and fact-finding. Accordingly, how to initiate the procedure, the initial steps and the appointment of a conciliator/mediator (or constitution of the committee for fact-finding) as well as subsequent steps and costs are all briefly explained under the Guidance Notes, with a practical manner and supported by visuals and charts.
The amendments to the Rules were the end result of an ambitious and comprehensive project and they included significant improvements, most notably to the efficiency and transparency of proceedings under the Rules. ICSID's recently published Guidance Notes provide a concise and easy-to-navigate roadmap for practitioners that can be accessed via ICSID's website. The Guidance Notes shed light on some of the new provisions, while providing an overview of the Rules that comprises the most essential elements and information of the procedures thereunder.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.