International Centre for Settlement of Investment Disputes

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International Centre for
Settlement of Investment Disputes
International Centre for Settlement of Investment Disputes Logo.jpg
ICSID logo
Formation 1966
Type Dispute resolution organization
Legal status Treaty
Purpose International arbitration
Headquarters Washington, D.C.
Membership 159 countries
Secretary-General Meg Kinnear
Parent organization World Bank Group
Website icsid.worldbank.org

The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration institution which facilitates arbitration and conciliation of legal disputes between international investors. The ICSID is a member of the World Bank Group and is headquartered in Washington, D.C., United States. It was established in 1966 as a multilateral specialized dispute resolution institution to encourage international flow of investment and mitigate non-commercial risks. Although the ICSID is a member of the World Bank Group and receives its funding from the World Bank, it was established as an autonomous institution by a separate treaty drafted by the International Bank for Reconstruction and Development's executive directors and signed by member countries.[1][2] The ICSID is contracted with and governed by its member countries, but has its own Secretariat which carry out its normal operations. The center facilitates arbitration and conciliation proceedings, allowing independent tribunals and arbitration mechanisms to hold proceedings under its rules, and all contracting member states agree to enforce and uphold arbitral awards in accordance with the ICSID Convention. The ICSID also helps administer dispute resolution proceedings under other treaties and for alternative arbitration mechanisms. The center also performs advisory activities and maintains several publications.

History[edit]

In the 1950s and 1960s, the Organization for European Economic Cooperation (now the Organisation for Economic Co-operation and Development) had made several attempts to create a framework for protecting international investments, but its efforts revealed conflicting views on how to provide compensation for the expropriation of foreign direct investment. In 1961, then-General Counsel of the International Bank for Reconstruction and Development (IBRD) Aron Broches developed the idea for a multilateral agreement on a process for resolving individual investment disputes on a case by case basis as opposed to imposing outcomes based on standards. Broches held conferences to consult legal experts from all parts of the world, including Europe, Africa, and Asia, to discuss and compose a preliminary agreement. The IBRD staff wrote an official draft of the agreement and consulted with legal representatives of the IBRD's board of directors to finalize the draft and have it approved. The board of directors approved the final draft of the agreement, titled Convention on the Settlement of Investment Disputes between States and Nationals of Other States, and the Bank president disseminated the convention to its member states for signature on 18 March 1965. Twenty states immediately ratified the convention. The convention, establishing the International Centre for Settlement of Investment Disputes, entered into force on 14 October 1966.[1][3][4]

Bilateral investment treaties proliferated during the first decade of the 21st century, reaching more than 2,500 by 2007. Many such treaties contain text that refers present and future investment disputes to the ICSID.[5] From its launch to 30 June 2012, the ICSID has registered 390 investment dispute cases. Of the ICSID's caseload, 88% are convention arbitration cases, 2% are convention conciliation cases, 9% are additional facility arbitration cases, and 1% are additional facility conciliation cases. As of 30 June 2012, the ICSID's registered cases are distributed across economic sectors accordingly: oil, gas, and mining (25%), electricity and other energy (13%), other industries (12%), transportation (11%), construction (7%), financial (7%), information and communication (6%), water, sanitation, and food protection (6%), agriculture, fishing, and forestry (5%), services and trade (4%), and tourism (4%). As of 27 July 2012, 246 of the ICSID's registered cases have been concluded. Of the outcomes for arbitration proceedings as of 30 June 2012, 62% of disputes have been resolved by the ICSID's tribunal, while 38% have been settled or discontinued. Of the conciliation proceedings, conciliation commission reports were issued for 67%, while 33% of proceedings were discontinued. For conciliation proceedings wherein a conciliation commission report was issued, 75% of the reports recorded failure to reach agreement while 25% recorded agreement among parties.[6][7]

Governance[edit]

The ICSID is governed by its Administrative Council which meets annually and elects the center's Secretary-General and Deputy Secretary-General, approves rules and regulations, conducts the center's case proceedings, and approves the center's budget and annual report. The council consists of one representative from each of the center's contracting member states and is chaired by the President of the World Bank Group, although the president may not vote. The ICSID's normal operations are carried out by its Secretariat which comprises 40 employees and is led by the Secretary-General of the ICSID. The Secretariat provides support to the Administrative Council in conducting the center's proceedings. It also manages the center's Panel of Conciliators and Panel of Arbitrators. Each contracting member state may appoint four persons to each panel.[4]:15 In addition to serving as the center's principal, the Secretary-General is responsible for legally representing the ICSID and serving as the registrar of its proceedings. As of 2012, Meg Kinnear serves as the center's Secretary-General.[2]

Membership[edit]

  ICSID in force
  ICSID signed, ratification pending
  Former members, withdrawn

The ICSID has 158 member states which have signed the center's convention, which includes 157 United Nations member states plus Kosovo. Of these member states, 150 are contracting member states which have deposited instruments of ratification.[8] The ICSID's former members are Bolivia, Ecuador, and Venezuela.[9][10] All ICSID contracting member states, whether or not they are parties to a given dispute, are required by the ICSID Convention to recognize and enforce ICSID arbitral awards.[4]

Non-contracting signatories[edit]

The following member states have signed the ICSID's convention on the dates specified, but have not ratified it by depositing their instruments of ratification.[8]

  •  Belize (1986)
  •  Dominican Republic (2000)
  •  Ethiopia (1965)
  •  Guinea-Bissau (1991)
  •  Kyrgyzstan (1995)
  •  Namibia (1998)
  •  Russia (1992)
  •  Thailand (1985)

Activities[edit]

The ICSID does not conduct arbitration or conciliation proceedings itself, but offers institutional and procedural support to conciliation commissions, tribunals, and other committees which conduct such matters. The center has two sets of rules that determine how cases will be initiated and conducted, either under the ICSID's Convention, Regulations and Rules or the ICSID's Additional Facility Rules. To be processed in accordance with the ICSID Convention, a legal dispute has to exist between one of the center's contracting member states and a national of another contracting member state. It must also be of a legal nature and relate directly to an investment. A case can be processed under the ICSID Additional Facility Rules if one of the parties to the dispute is either not a contracting member state or a national of a contracting member state. However, most cases are arbitrated under the ICSID Convention.[11][12][13] Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the ICSID Convention, neither party can unilaterally withdraw its consent.[14]

The ICSID Secretariat may also administer dispute resolution proceedings under other treaties and regularly assists tribunals or disputing parties in arbitrations among investors and states under the United Nations Commission on International Trade Law's arbitration regulations. The center provides administrative and technical support for a number of international dispute resolution proceedings through alternative facilities such as the Permanent Court of Arbitration in The Hague, Netherlands, the London Court of International Arbitration, and the International Chamber of Commerce in Paris, France.[11]

The ICSID also conducts advisory activities and research and publishes Investment Laws of the World and of Investment Treaties.[15] Since April 1986, the center has published a semi-annual law journal entitled ICSID Review: Foreign Investment Law Journal.[16]

Although the ICSID's proceedings generally take place in Washington, D.C., parties may agree that proceedings be held at one of a number of possible alternative locations, including the Permanent Court of Arbitration, the Regional Arbitration Centres of the Asian-African Legal Consultative Committee in Cairo, in Kuala Lumpur, or in Lagos, the Australian Centre for International Commercial Arbitration in Melbourne, the Australian Commercial Disputes Centre in Sydney, the Singapore International Arbitration Centre, the Gulf Cooperation Council Commercial Arbitration Centre in Bahrain, the German Institution of Arbitration, the Maxwell Chambers in Singapore, the Hong Kong International Arbitration Centre, and the Centre for Arbitration and Conciliation at the Chamber of Commerce of Bogota.[17]

Case studies[edit]

  • The Indonesian government was sued in June 2012 by a London-based mining company Churchill Mining after the local government revoked the concession rights held by a local company in which the firm had invested.[18] The government is countering the Churchill case, claiming that Churchill did not have the correct type of mining licenses.[18]
  • In October 2012, an ICSID tribunal awarded a judgment of $1.8 billion for Occidental Petroleum against the government of Ecuador.[18] Additionally, Ecuador had to pay $589 million in backdated compound interest and half of the costs of the tribunal, making its total penalty around $2.4 billion.[18] The South American country annulled a contract with the oil firm on the grounds that it violated a clause that the company would not sell its rights to another firm without permission. The tribunal agreed the violation took place but judged that the annulment was not fair and equitable treatment to the company.[18]
  • Irish oil firm Tullow Oil took the Ugandan government to court in November 2012 after VAT was placed on goods and services the firm purchased for its operations in the country.[19] The Ugandan government responded that the company had no right to claim tax on such goods prior to commencement of drilling. The case also attracted criticism for Tullow's use of local legal representation, Kampala Associated Advocates (KAA); the Ugandan law firm was founded by Elly Kurahanga, the president of Tullow's operations in Uganda and concerns were raised over his impartiality in the issue.[19]
  • Tobacco major Philip Morris sued Uruguay for alleged breaches to the Uruguay-Swiss BIT for requiring cigarette packs to display graphic health warnings and sued Australia under the Australia-Hong Kong BITS for requiring plain packaging for its cigarettes. The company claims that the packaging requirements in both countries violate its investment.[18]

See also[edit]

References[edit]

  1. ^ a b International Centre for Settlement of Investment Disputes. "About ICSID". World Bank Group. Retrieved 25 July 2012. 
  2. ^ a b International Centre for Settlement of Investment Disputes. "Organizational Structure of ICSID". World Bank Group. Retrieved 25 July 2012. 
  3. ^ Reed, Lucy; Paulsson, Jan; Blackaby, Nigel (2010). Guide to ICSID Arbitration, 2nd Edition. The Hague, Netherlands: Kluwer Law International. ISBN 978-9-04-113401-1. 
  4. ^ a b c International Centre for Settlement of Investment Disputes (2006). ICSID Convention, Regulations and Rules (Report). World Bank Group. http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf. Retrieved 25 July 2012.
  5. ^ Weisbrot, Mark. "ICSID in the crosshairs: Bolivia, Venezuela and Nicaragua slam the door". RISAL. Retrieved 27 July 2012.  (French)
  6. ^ International Centre for Settlement of Investment Disputes (2012). The ICSID Caseload – Statistics (Issue 2012-2) (Report). World Bank Group. http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ShowDocument&CaseLoadStatistics=True&language=English32. Retrieved 25 July 2012.
  7. ^ International Centre for Settlement of Investment Disputes. "List of Concluded Cases". World Bank Group. Retrieved 26 July 2012. 
  8. ^ a b International Centre for Settlement of Investment Disputes (25 July 2012). List of Contracting States and Other Signatories of the Convention (Report). World Bank Group. http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ShowDocument&language=English. Retrieved 25 July 2012.
  9. ^ Eljuri, Elisabeth. "Venezuela denounces the ICSID Convention". Norton Rose. Retrieved 19 February 2012. 
  10. ^ Tawil, Guido Santiago (2011). "On the Internationalization of Administrative Contracts, Arbitration and the Calvo Doctrine". In Jan Berg, Albert. Arbitration Advocay in Changing Times 15. Kluwer Law International. pp. 345–346. "Ecuador notified its withdrawal from the ICSID Convention on 6 July 2009." 
  11. ^ a b International Centre for Settlement of Investment Disputes (2011). ICSID 2011 Annual Report (Report). World Bank Group. http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnualReports&year=2011_Eng. Retrieved 25 July 2012.
  12. ^ International Centre for Settlement of Investment Disputes (2010). ICSID 2010 Annual Report (Report). World Bank Group. http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnualReports&year=2010_Eng. Retrieved 25 July 2012.
  13. ^ Goldman, Michael (2007). "How "Water for All!" policy became hegemonic: The power of the World Bank and its transnational policy networks". Geoforum 38 (5): 786–800. doi:10.1016/j.geoforum.2005.10.008. Retrieved 2 August 2012. 
  14. ^ International Centre for Settlement of Investment Disputes. "ICSID Dispute Settlement Facilities". World Bank Group. Retrieved 27 July 2012. 
  15. ^ International Centre for Settlement of Investment Disputes. "ICSID Publications". World Bank Group. Retrieved 27 July 2012. 
  16. ^ International Centre for Settlement of Investment Disputes. "ICSID Review-Foreign Investment Law Journal". World Bank Group. Retrieved 27 July 2012. 
  17. ^ International Centre for Settlement of Investment Disputes. "Institutional Arrangements". World Bank Group. Retrieved 27 July 2012. 
  18. ^ a b c d e f Martin Khor (2012). "The emerging crisis of investment treaties". South Centre. 
  19. ^ a b Tabu Butagira (17 December 2012). "Tullow Sues Government in New Tax Dispute". Daily Monitor. 

External links[edit]