Dispute Resolution Through ICSID

Author:Ms Caroline Kehoe
Profession:Herbert Smith
 
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Arbitration has long been the preferred method of resolving investment disputes. It offers a private and neutral forum outside the jurisdiction of the country into which the investment was made. Furthermore the parties can appoint arbitrators with the appropriate specific technical or legal expertise for the particular type of dispute. Arbitration also offers greater prospects of enforceability than a judgment of a national Court given the extensive ratification of the New York Convention1.ICSIDThe International Centre for Settlement of Investment Disputes (ICSID) was established in 1966 by a multilateral treaty: the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (The Washington Convention)2. It was created by the World Bank as an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors. It was hoped that such an institution would foster confidence between States and foreign investors conducive to increasing the flow of private international investment.Although it maintains close links with the World Bank and is headquartered in Washington D.C., ICSID is an autonomous international organisation. The Centre is run by an Administrative Council comprising one representative from each Contracting State. It does not itself engage in conciliation and arbitration, which is the task of the conciliators and arbitrators appointed by the parties, but assists in the initiation and conduct of those proceedings, performing a range of administrative functions. ICSID proceedings do not necessarily have to be held in Washington. The Convention contains provisions that facilitate advance stipulations of other venues and the parties are free to agree to conduct their proceedings at any other place (Articles 62 and 63).ICSID basic documentsThe Washington Convention is, of course, the key document since it is signed and ratified by the Contracting States and sets out their intentions regarding the establishment of the Centre, its administration and the basic rules governing both the conciliation and arbitration procedures.The Institution's Rules set out the procedure for instituting either conciliation or arbitration proceedings including prescribing the details to be included in the formal written Request for Arbitration, payment of the appropriate fee and the constitution of the Arbitral Tribunal (consistent with Articles 37-40 of the Washington Convention). For example, the Request must include the "credentials" of the parties to confirm that they are either a "Contracting State" or a National of a Contracting State and also indicating the date of the consent in writing to ICSID arbitration.The Rules of Procedure (the Conciliation Rules and the Arbitration Rules) contain the procedural rules, again reflecting the terms of the Washington Convention.The extent of ICSID's jurisdictionThe extent of ICSID's jurisdiction is set out clearly in the Washington Convention, namely:The subject...

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