Overview of Arbitration under the ICSID - Additional Facility (2022 Rules)
An ICSID Additional Facility arbitration proceeding is governed by:
- the ICSID Additional Facility Rules
- the ICSID Additional Facility Arbitration Rules
- the ICSID Additional Facility Administrative and Financial Regulations.
The main steps in an Additional Facility arbitration are depicted in the following flow chart.
The ICSID Additional Facility Rules
The ICSID Additional Facility Rules define the scope of the Additional Facility. Article 2 indicates that the Centre is authorized to administer arbitration proceedings for the settlement of legal disputes arising out of an investment between a State or a Regional Economic Integration Organization (REIO) on the one hand, and a national of another State on the other hand, which the parties consent in writing to submit to the Centre, if:
- none of the parties to the dispute is a Contracting State to the ICSID Convention or a national of a Contracting State
- either the State party to the dispute, or the State whose national is a party to the dispute, but not both, is a Contracting State, or
- an REIO is a party to the dispute.
Because such disputes are not covered by the ICSID Convention, none of the provisions of the ICSID Convention are applicable to Additional Facility proceedings (Article 3 of the Additional Facility Rules).
The applicable Rules are those in force on the date of filing the Request for arbitration, unless the parties agree otherwise (Article 4 of the Additional Facility Rules). The current Additional Facility Rules came into effect on July 1, 2022.
The ICSID Additional Facility Arbitration Rules
The Additional Facility Arbitration Rules govern the entire arbitration process from the filing of the Request for arbitration onward. They explain how to institute an Additional Facility arbitration proceeding, including the form and contents of the Request for arbitration and the registration process. On average, cases are registered within three weeks of the Centre receiving the Request for arbitration with supporting materials and the fee for lodging the request.
If a provision of the Additional Facility Arbitration Rules or any agreement of the parties conflicts with a mandatory provision of the applicable law, that law prevails (Additional Facility Arbitration Rule 1(3)).
The applicable ICSID Additional Facility Arbitration Rules are those in force on the date of filing the Request for arbitration, unless the parties agree otherwise (Additional Facility Arbitration Rule 1(4)). The current Arbitration Rules came into effect on July 1, 2022.
The ICSID Additional Facility Administrative and Financial Regulations
The Additional Facility Administrative and Financial Regulations contain provisions concerning:
- the costs of the proceeding (Regulations 6 to 10)
- functions with respect to individual proceedings, including the ICSID Secretariat’s services (Regulations 2 to 5)
- official languages (Regulation 12)
- prohibition of testimony and limitation of liability for the arbitrators (Regulation 13).
The applicable Regulations are those in force on the date of filing the Request for arbitration pursuant to the ICSID Additional Facility Rules (Regulation 1(2)). The current Regulations came into effect on July 1, 2022.