The 2022 ICSID Amendments: Key Strategic Considerations for Parties
Investor-State arbitration is designed to protect investors from unfair conduct by foreign governments. The quintessential example of a violation is an unlawful factory expropriation (e.g., a State taking over an oil refinery without compensation), but violations can also result from, among others, discriminatory regulation, arbitrary administrative action, and denial of due process or, more broadly, denial of justice. In investment protection treaties, States agree to arbitrate disputes brought by investors (individuals or business entities) of another signatory State. Worldwide, there are roughly 3,000 such treaties today. Some such treaties are “bilateral”—there are two signatories. Others are multilateral—they have more than two signatories.
In the world of investor-State arbitration, the International Center for the Settlement of Investment Disputes (ICSID) is a well-known institution. Why? Because ICSID’s arbitration rules are used in roughly two-thirds of known investor-state arbitrations. Hence, when ICSID announces rule changes, prospective investor claimants and home-State respondents listen.
And ICSID has done just that. On July 1, 2022, amendments to the ICSID Rules and Regulations went into effect. When they apply is controlled by Article 44 of the Rules.
