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Columbia FDI Perspectives Perspectives on topical foreign direct investment issues Editor-in-Chief: Karl P. Sauvant ([log in to unmask]) Managing Editor: Riccardo Loschi ([log in to unmask]) *The Columbia FDI Perspectives are a forum for public debate. The views expressed by the authors do not reflect the opinions of CCSI or our partners and supporters.* No. 326 March 7, 2022 *The launch of a new generation of the ICSID Rules* by Meg Kinnear* <#m_4709264553708817167__edn1> The regulations and rules of the International Centre for Settlement of Investment Disputes (ICSID) are an important part of international investment law. They are the most used rules of procedure in investor-state dispute settlement (ISDS), having been applied in over 800 cases to date. In late 2016, ICSID embarked on the most comprehensive amendment of the rules in its history—setting in motion a process that is now nearing completion. Marking a major milestone, the Chair of the ICSID Administrative Council—ICSID’s governing body—asked member states to vote on proposed amendments on January 20, 2022. Votes must be cast by March 21, 2022. If approved, the new rules will come into effect on July 1, 2022. The request for a vote comes on the heels of ICSID’s sixth—and final—working paper <https://icsid.worldbank.org/sites/default/files/documents/ICSID_WP_Six.pdf>, issued on November 12, 2021. Developed over a period of five years, the ICSID working papers proposed concrete changes to the ICSID rules and anchored the most in-depth and sustained dialogue with member states and the broader public in ICSID’s history.[1] <#m_4709264553708817167__edn2> They have also served as the vehicle for developing and reflecting consensus. The first working paper numbered over 900 pages; the sixth came in at 80 pages. This reflects the progressive agreement forged by the six working papers, three in-person consultations with member states, six series of written comments, and hundreds of briefings and events. The amended ICSID rules are a significant step forward in the discipline of ISDS thanks to the contributions of many individuals. Although the consultation period for these amendments was (necessarily) lengthy, their implementation will be almost immediate. If adopted, disputing parties could be filing cases under the new rules as of July 1, 2022. Some things have not changed. The amendments remain procedural in nature and do not affect investment treaties, nor do they make structural changes to the institutions of dispute settlement. Similarly, these rules scrupulously retain the balance of the interests of states and investors, a primary objective of the original drafters. As a result, the updated rules will feel familiar to users of the ICSID system. At the same time, many of the amendments address proposals for procedural reform that have been raised in numerous *fora* in the past decade. These represent a significant change. For example: - *Further enhanced transparency*. The updated arbitration rules will ensure the increased publication of awards, orders and decisions, while offering parties the opportunity to redact confidential or protected information. Under the ICSID Convention, party consent is needed to publish awards and decisions—and the updated arbitration rules adhere to that requirement. But consent to publish is deemed given unless a party objects in writing within 60 days after an award is issued. Should a party object, the rules allow the Secretariat to prepare legal excerpts of the award. Awards, orders and decisions in proceedings under the Additional Facility will be published with redactions agreed by the parties. - *Tools to expedite proceedings*. States and investors encouraged ICSID to consider ways to reduce the time of proceedings which—in most cases—will mean a more cost-effective process for countries and investors. These include an option for expedited arbitration, mandatory case management conferences, the potential to consolidate or coordinate related cases, reduced time frames for various steps in the process, and mandatory timeframes for issuing awards and decisions. - *New disclosure requirements for third-party funding*. Parties are obliged to disclose the name and address of any non-party from which they received funding, directly or indirectly, under the amended arbitration rules. As third-party funding has increased in recent years, this new disclosure requirement serves to avoid inadvertent conflicts of interest—such as between a third-party funder and a member of a tribunal. - *Broader access to ICSID rules and services*. Amendments to the ICSID Additional Facility Rules for Arbitration and Conciliation enlarge access to ICSID, including where neither the state nor the investor is an ICSID member state or a national of one. This will make the ICSID rules available to disputing parties who otherwise might have been limited to commercial arbitration rules. The amendments to the Additional Facility will also allow Regional Economic Integration Organizations—such as the European Union—to access ICSID arbitration and conciliation under the amended Additional Facility Rules. - *New rules for mediation and fact-finding*. The proposals include ISDS-specific rules to administer mediation and fact-finding. By increasing the number of dispute-settlement procedures offered by ICSID, parties are given a unique means of resolving disputes and a greater choice in deciding what works best for resolving their disputes. Once adopted, ICSID will organize a series of presentations for states and practitioners to highlight new aspects of the rules and ensure that disputing parties take advantage of new tools in the rules. ICSID will also publish updated web content—including templates, charts and other demonstrative tools. Member states are encouraged to approve these proposals as early as possible, and to reach out to ICSID if there are any questions on the amended rules or the voting process. ------------------------------ * <#m_4709264553708817167__ednref1> Meg Kinnear ([log in to unmask]) is Secretary General of the International Centre for Settlement of Investment Disputes (ICSID). The author wishes to thank Nathalie Bernasconi, Bart Legum and Antonio R. Parra for their helpful peer reviews. [1] <#m_4709264553708817167__ednref2> See the proposed amendments to the ICSID rules and Working Papers <https://icsid.worldbank.org/resources/rules-amendments>, as well as feedback received on the proposals. *The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Meg Kinnear, ‘The launch of a new generation of the ICSID Rules,’ Columbia FDI Perspectives No. 326, March 7, 2022. Reprinted with permission from the Columbia Center on Sustainable **Investment (**http://ccsi.columbia.edu* <http://ccsi.columbia.edu>*).” A copy should kindly be sent to the Columbia Center on Sustainable Investment at * *[log in to unmask]* <[log in to unmask]>*.* For further information, including information regarding submission to the *Perspectives*, please contact: Columbia Center on Sustainable Investment, Riccardo Loschi, [log in to unmask]; Luca Jobbagy, [log in to unmask] The Columbia Center on Sustainable Investment (CCSI), a joint center of Columbia Law School and the Earth Institute at Columbia University, is a leading applied research center and forum dedicated to the study, practice and discussion of sustainable international investment. Our mission is to develop and disseminate practical approaches and solutions, as well as to analyze topical policy-oriented issues, in order to maximize the impact of international investment for sustainable development. The Center undertakes its mission through interdisciplinary research, advisory projects, multi-stakeholder dialogue, educational programs, and the development of resources and tools. For more information, visit us at *http://ccsi.columbia.edu* <http://ccsi.columbia.edu>. *Most recent Columbia FDI Perspectives* · No. 325, James Otto, “How FDI in the mining sector can assist communities to achieve sustainable development,” Columbia FDI Perspectives, February 21, 2022 · No. 324, Charlie Garnjana-Goonchorn, “An Advisory Centre on International Investment Law: Is perfect the enemy of good?,” Columbia FDI Perspectives, February 7, 2022 · No. 323, Julien Chaisse, “FDI and sustainable development in the EU-China investment treaty: Neither high nor low, just realistic expectations,” Columbia FDI Perspectives, January 24, 2022 · No. 322, Mohammad Saeed, “Implementing an Investment Facilitation Framework for Development: Lessons from the Trade Facilitation Agreement,” Columbia FDI Perspectives, January 10, 2022 · No 321, Peter Muchlinski, “Promoting responsible business through the revised ILO Tripartite Declaration,” Columbia FDI Perspectives, December 27, 2021 *All previous FDI Perspectives are available at * https://ccsi.columbia.edu/content/columbia-fdi-perspectives. -- *Karl P. Sauvant, PhD* *Resident Senior Fellow* *Columbia Center on Sustainable Investment* Columbia Law School - The Earth Institute, Columbia University 435 West 116th St., Rm. JGH 825, New York, NY 10027 | p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask] | w: www.ccsi.columbia.edu | t: @CCSI_Columbia <https://twitter.com/CCSI_Columbia> "What foreign investors want: Findings from an investor survey", "Incentivising Sustainable FDI", "Leveraging Digital FDI for Capacity and Competitiveness", "Green FDI: Encouraging carbon-neutral investment", "Facilitating Sustainable Investment to Build Back Better", "Extending International Legal Aid from Trade to Investment: An Advisory Centre on International Investment Law", "Increasing Transparency in Investment Facilitation: Focussed Support is Needed", *Investment Facilitation for Development: A Toolkit for Policymakers*, "More Attention to Policies! Improving the Distribution of FDI Benefits. The Need for Policy-oriented Research, Advice and Advocacy", "More and Better Investment Now!", "Facilitating Sustainable FDI in a WTO Investment Facilitation Framework: Four Concrete Proposals", "Multinational Enterprises and the Global Investment Regime: Toward Balancing Rights and Responsibilities”, "An Inventory of Concrete Measures to Facilitate the Flow of Sustainable FDI: What? Why? How?", are available at https://ssrn.com/author=2461782 . ____ AIB-L is brought to you by the Academy of International Business. For information: http://aib.msu.edu/community/aib-l.asp To post message: [log in to unmask] For assistance: [log in to unmask] AIB-L is a moderated list.