Manifest Lack of Legal Merit - ICSID Convention Arbitration (2022 Rules)
A party may object that a claim is manifestly without legal merit and request that the objection be addressed in an expedited procedure at the preliminary stage of a proceeding (Arbitration Rule 41). The procedure allows manifestly unmeritorious claims to be dismissed early in the process before they unnecessarily consume the parties’ resources. It applies to objections to jurisdiction, merits, or admissibility.
A party can raise an objection that a claim manifestly lacks legal merit from the time the Request for arbitration is registered until 45 days after the Tribunal is constituted. The party filing the objection must indicate the specific grounds on which the objection is based and provide a statement of the relevant facts, law, and arguments. The Tribunal determines the briefing schedule in consultation with the parties, unless the objection is raised before the constitution of the Tribunal, in which case the Secretary-General of ICSID fixes the time limits for written submissions (Arbitration Rule 41(2)).
The Tribunal may hold a hearing but is not required to, and it must issue its decision or Award within 60 days after its constitution (if all submissions have been previously filed) or after the last submission on the objection (if that submission is filed after Tribunal constitution).
If the Tribunal finds that all claims lack legal merit, it upholds the objection and renders an Award which disposes of the entire case (Arbitration Rule 41(3)). In that case, the prevailing party is awarded its reasonable costs, unless the Tribunal determines that there are special circumstances justifying a different allocation of costs (Arbitration Rule 52(2)).
If, however, the Tribunal finds that the manifest lack of legal merit standard is not met with respect to some or all claims, it issues a decision accordingly and fixes time limits for the conduct of the remainder of the proceeding (Arbitration Rule 41(3)). The Tribunal may in such case make an interim decision on costs (Arbitration Rule 52(3)), considering all relevant circumstances in allocating the costs (Arbitration Rule 52(1)). Alternatively, it may reserve its decision on costs to the Award.
Tribunals have uniformly employed a high standard for determining whether a claim manifestly lacks legal merit.
A decision dismissing the objection in whole or in part is without prejudice to the right of a party to file an objection pursuant to Arbitration Rule 43 or to object to the merits of the claim in the proceeding.
Provisions Similar to Rule 41
Some investment treaties contain procedures similar to Arbitration Rule 41, which are applicable to cases brought to ICSID under these instruments. An example of this is Article 10.20.4 and 10.20.5 of the United States-Dominican Republic - Central America Free Trade Agreement (CAFTA).