In the days prior to the internet, many families used to send one another wonderful notes from the past year, with updates on what they, their children (and their pets) had done, photos of their adventures over the year, and wishes for a happy and prosperous new year. This note is our effort to send you an update on behalf of ICSID. I am pleased to report that our ICSID family is thriving and has met or exceeded the challenges of an unprecedented year.
The core mission of ICSID—to provide for the peaceful resolution of international investment disputes—has proved remarkably resilient this year. Many factors deserve credit, but none as important as the hundreds of individuals who participated in the day-to-day running of our cases. From arbitrators to counsel to court reporters, 2020 has demanded—and received—flexibility, patience and ingenuity from all.
The capacity of counsel, arbitrators and the Secretariat to utilize remote technology has leapfrogged in the past year—and the time and cost savings of these platforms are clearly evident. While I look forward to seeing many of you in person at our hearing centres in Washington D.C and Paris in 2021, video communication has also secured its place in ICSID proceedings.
Below we have reviewed some of the main events and trends from the past year. While the ICSID caseload is rightfully our top priority, it has been a productive year in many other respects as well. Djibouti joined the ICSID Convention in June 2020, bringing us to 155 Member States. The process of amending the ICSID rules has advanced considerably, the ICSID and UNCITRAL draft Code of Conduct has received remarkable attention from the full range of stakeholders, and our Young ICSID group is as dynamic as ever.
From our Secretariat family to yours, we wish you a safe, peaceful and happy holiday season and the most prosperous new year.
With best wishes,
Spotlight on the ICSID Caseload
Strong demand for ICSID’s services continued over the past year. The Centre registered a record 58 new cases in 2020 under the ICSID Convention and Additional Facility, and administered a growing body of cases under the UNCITRAL Rules.
The number of sessions and hearings held in 2020 was on par with previous years despite the challenges posed by the COVID-19 pandemic. As of December 15, 2020, ICSID had organized 156 virtual hearings and sessions in calendar year 2020. The vast majority of these (90%) were in ICSID Convention arbitrations. The remaining hearings and sessions were held in the context of ICSID Additional Facility arbitrations (4%), UNCITRAL arbitration proceedings administered by ICSID (4%), ICSID Convention conciliation proceedings (1%) and one hearing for a case not administered by the Centre (1%). These virtual hearings and sessions concerned 107 different cases.
As a part of its year in review, ICSID has also prepared a comparison of hearings held in 2020 and 2019. A comprehensive report on caseload trends in 2020 will be published in mid-January in the ICSID Caseload - Statistics.
Serving Clients Remotely
Starting in March, ICSID made electronic filing its default procedure through the Centre’s secure file-sharing platform. A practice anticipated as the new norm in the amended ICSID rules, electronic filing has been fast-tracked across ICSID's operations. ICSID now requires only an electronic copy of a request for arbitration or post-award application, and parties file all written submissions electronically. Awards and decisions have also been issued electronically.
In concert, hearings have shifted to remote formats. In 2020, ICSID organized a total of 156 virtual hearings and sessions, ranging from a single day to three weeks in duration. Over 22% of these virtual hearings were held with simultaneous interpretation into one or more languages. In addition, about 17% of the virtual hearings held included the cross-examination of witnesses and/or experts.
In 2021, we will undertake a thorough analysis of the impact of remote technology on the operations of the Centre, ensuring that the lessons drawn from 2020 have a positive influence on our services going forward.
The Amended ICSID Rules
ICSID began 2020 with the release of the fourth working paper on proposed amendments to the ICSID rules. Unfortunately, a planned final consultation with States in April 2020 was cancelled due to the pandemic, but we requested written comment on the proposals in working paper #4 instead, published here in a compendium.
The scope of outstanding work has narrowed considerably, and the fifth working paper (to be published in the spring) will advance text on the few remaining areas where comments have converged. We are determined not to lose momentum on the amended rules, and hope to have them presented to States for a vote in the upcoming year.
ICSID & UNCITRAL Draft Code of Conduct
In May, the ICSID and UNCITRAL Secretariats published a much-anticipated draft Code of Conduct for ISDS Adjudicators. Drawing from an extensive review of codes of conduct in investment treaties, arbitration rules applicable to ISDS, and of international courts, the draft code is a first step towards a more universal set of standards for adjudicators in investor-State disputes.
The Code has been discussed and analyzed extensively over the course of 2020, and a compilation of written input on the Code from States and the broader public has been published on the ICSID and UNCITRAL websites. ICSID participated in over a dozen webinars to help stakeholders understand the proposals prior to sending their feedback. We wish to thank everyone who has taken the time to share input, and look forward to progressing on the Code in 2021.
Djibouti Ratifies the ICSID Convention
On June 9, 2020, the Republic of Djibouti deposited its Instrument of Ratification of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) with the World Bank, becoming the 155th State to ratify the Convention since it entered into force in 1966.
Scaling Up ICSID's Mediation Services
Consensus continues to grow around the potential for mediation to play a larger role in the resolution of international investment disputes. For parties seeking a mediated settlement, ICSID has proposed its specialized rules of procedure and offers its unparalleled case administrative services. We encourage interested parties to get in touch with the Secretariat to discuss ICSID's mediation services.
Over the past year, ICSID also worked with a wide variety of partners to build capacity and knowledge around mediation in the ISDS context, including a multi-day practice-based training program designed jointly by ICSID, the Centre for Effective Dispute Resolution (CEDR), the International Mediation Institute (IMI), and the International Energy Charter Secretariat. Further information on ICSID’s mediation-related rules, services and training programs is available on the ICSID website.
Advancing Diversity in International Dispute Settlement
ICSID has taken concrete steps to advance diversity in international investment dispute settlement. The Centre also collaborates closely with States, law firms and arbitrators to support the collective effort in fostering diversity and gender-balance in the appointments made to tribunals, and in the profession more broadly.
Highlights in 2020 included a webinar jointly hosted with ICCA to mark the release of the Report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (watch the webinar recording here). ICSID was also proud to note progress made in appointments. Over the 2020 fiscal year, individuals of 44 nationalities were represented amongst arbitrator, conciliator and ad hoc committee member appointments—the highest number in a single year at ICSID.
ICSID Courses and Events Go Virtual
Home-based work did not slow down ICSID’s extensive technical assistance and conference program. Indeed, the accessibility of online courses and events meant that ICSID connected with an unprecedented number of legal professionals, academics, students, and non-governmental organizations over the past year. Recordings of many of these events are available in ICSID’s video library.
It was also an impressive year for ICSID’s flagship journal, The ICSID Review. Among the Review’s highlights in 2020 was a special issue focused on Africa’s contribution to ICSID and investor-State dispute settlement. With contributions from a wide range of experts, the special issue examines the role played by representatives of African States in creating ICSID, the seminal cases in which African countries participated as respondents and claimants, and insights into how international investment law is developing on the African continent today.
ICSID Refreshes its Website
This summer ICSID launched an updated website. As many readers know, the ICSID website has developed into a key resource on ICSID procedure and caselaw for counsel, arbitrators and researchers. The goal was to build on this strong foundation with a streamlined navigation, enhanced search functions, and mobile-friendly design. Stay tuned for new features in early 2021, including a detailed guide to UNCITRAL cases administered by ICSID.
Young ICSID: Partnering, Engaging, Growing
Young ICSID kept a busy schedule in 2020, partnering with a range of like-minded institutions to support young practitioners to build networks, exchange ideas, and gain insights from experienced professionals from around the world. In case you missed it, catch up on the Young ICSID webinar on the ICSID and UNCITRAL Draft Code of Conduct. Also don’t miss out on the first edition and second edition of Young ICSID’s profile series of up-and-coming professionals in the field of international investment law and dispute settlement.