A new report by the International Centre for Settlement of Investment Disputes (ICSID) tracks case-related trends over the 2021 fiscal year, as well as for all ICSID cases going back to 1972.
ICSID registered a record 70 new cases in FY2021 (July 1, 2020 – June 30, 2021) under its procedural rules for resolving international investment disputes. Arbitrations under the ICSID Convention accounted for the largest share of new cases (67 cases), followed by arbitrations applying the ICSID Additional Facility Rules (two cases). One conciliation case was registered under the ICSID Convention.
Overall, ICSID administered 332 cases in FY2021, the largest number in a single year. Since its establishment in 1966 to June 30, 2021, ICSID had administered a total of 838 cases.
While the ICSID Convention rules of arbitration remain the most popular procedure for resolving international investment disputes, ICSID has seen steady demand for its services in administering cases under other sets of rules. In FY2021, 19 cases were administered under ‘non-ICSID’ arbitral rules, including 14 cases that applied the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL).
Basis of Consent
The majority of newly registered cases (63%) asserted ICSID jurisdiction on the basis of a bilateral investment treaty, while 8% were brought on the basis of the Energy Charter Treaty. In addition, a wide variety of bilateral and regional trade and investment agreements were invoked, including:
- The North American Free Trade Agreement and the United States-Mexico-Canada Agreement (4% each);
- The United States-Peru Trade Promotion Agreement and the United States-Panama Trade Promotion Agreement (3% each);
- The Canada-Peru Free Trade Agreement; the Dominican Republic-Central America Free Trade Agreement; the Chile-Colombia Free Trade Agreement; the Free Trade Agreement between Colombia and El Salvador, Guatemala and Honduras; and the Establishment and Consular Convention between Switzerland and Italy (1% each).
A further 7% of cases were based on contracts between an investor and host-State, and 3% of cases were brought on the basis of domestic investment laws.
As in previous years, countries from all regions of the world were represented amongst new cases. The largest share in FY2021 involved States in Eastern Europe and Central Asia (30%), followed by States in South America and Sub-Saharan Africa (14% each) and Western Europe (10%). North America, and the Middle East/North Africa each accounted for 9% of new cases, and the South and East Asia/Pacific region and Central America and Caribbean for 7% each.
The economic sectors involved in ICSID proceedings are also diverse. Historically, the extractives and energy sectors have accounted for the largest share of cases, and this trend continued in FY2021. Twenty-nine percent of new cases involved the oil, gas and mining industry, and 14% related to electric power and other energy sources.
Also prominent was the construction sector, which accounted for 16% of disputes. These were followed by disputes related to information and communication (11%); transportation (7%); finance and tourism (4% each); and services and trade (3%). A further 3% of cases involved the water, sanitation and flood protection sector and 2% of cases concerned agriculture, fishing and forestry. A mix of other industries accounted for the remaining 7% of cases registered in FY2021.
The outcome of cases at ICSID has been consistently balanced between States and investors—and FY2021 was no different. Among cases decided by tribunals, 34% of awards upheld the investors’ claims in part or in full, 32% of awards rejected all of the investors’ claims on the merits, and 5% of awards declined jurisdiction.
In addition, 3% of cases terminated with an award embodying the parties’ settlement agreement, 22% of cases were discontinued at the request of both parties, 2% of cases were discontinued for lack of payment of the required advances, and 2% of cases were discontinued for failure of the parties to act.
The balance of women and men appointed as arbitrators, conciliators and ad hoc committees improved in FY2021. Women accounted for 31% of appointments, compared with 14% in FY2020 and 24% in FY2019.
ICSID appointed 37% of female appointees in FY2021, respondents appointed 23%, and claimants appointed 13%. A further 21% of female appointments were made jointly by the parties and the remaining 6% were made by co-arbitrators.
For further information, see the ICSID Caseload–Statistics (Issue 2021–2).
About The ICSID Caseload - Statistics
The ICSID Caseload - Statistics contains a profile of the ICSID caseload since the first case was registered in 1972. ICSID has hosted the majority of all known international investment cases and The ICSID Caseload - Statistics is a valuable empirical reference about trends in international investment dispute settlement generally. It profiles various aspects of international investment cases, including the number of cases, the basis of consent invoked by claimants, geographic and economic sector distribution of cases, outcomes of proceedings, and the nationality of arbitrators and conciliators. The ICSID Caseload - Statistics is available in English, French and Spanish, and updated every 6 months.