Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules

The International Institute for Sustainable Development (IISD) critiques the ICSID Secretariat's proposed rule amendments (Working Paper #2), stating they fail to address core concerns of states and stakeholders. The IISD argues that many necessary reforms—such as prohibiting 'double-hatting' of arbitrators, mandating the publication of awards, and expanding the grounds for review of decisions—cannot be achieved through rule changes alone and require amendments to the ICSID Convention itself. The document specifically recommends stricter standards for arbitrator independence, more flexible expedited arbitration rules for developing countries, and the introduction of mechanisms for third-party intervention and joinder to protect the rights of non-party stakeholders.

• The proposed amendments in Working Paper #2 are insufficient for meaningful reform of investor-state dispute settlement (ISDS), and several priority reforms identified by states may require amending the ICSID Convention rather than just the Arbitration Rules.
• The proposed expedited arbitration (EA) process may unfairly constrain developing countries that lack the resources for rapid proceedings; the IISD suggests a rule allowing states to opt out of EA without the investor's consent.
• There is a procedural imbalance regarding time limits: parties face grave consequences for non-compliance, while tribunals only have a 'best-efforts' obligation with no penalties for delays.
• The proposed rule on security for costs (AR 51) should be amended to apply only to investors, as requiring states to provide security for counterclaims creates an unfair hurdle given the permanence of states compared to investors.
• To ensure arbitrator independence and impartiality, the IISD recommends prohibiting 'double-hatting' (the dual role of arbitrator and counsel) and moving away from party-appointed arbitrators toward a roster or lottery system.
• The current system for counterclaims is viewed as virtually impossible to implement in treaty-based arbitration; the IISD proposes that an investor's consent to arbitrate a claim should be deemed consent to arbitrate counterclaims.
• The IISD argues that the proposed transparency measures are minimalistic and should be expanded to match or exceed UNCITRAL Transparency Rules, including the mandatory publication of awards.
• The document advocates for the ability of affected non-parties—such as local communities, Indigenous Peoples, and environmental entities—to join or intervene in arbitrations, as current amicus curiae provisions are insufficient.

APA

International Institute for Sustainable Development (2019). Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules. https://www.iisd.org/system/files/publications/comments-proposals-amendment-icsid-arbitration-rules.pdf

Chicago

International Institute for Sustainable Development. Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules. 2019. https://www.iisd.org/system/files/publications/comments-proposals-amendment-icsid-arbitration-rules.pdf.

Wikipedia

{{cite press release |author=International Institute for Sustainable Development |title=Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules |date=2019 |url=https://www.iisd.org/system/files/publications/comments-proposals-amendment-icsid-arbitration-rules.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{internationalinstituteforsustainabledevelopment2019summary, author = {{International Institute for Sustainable Development}}, title = {{Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules}}, publisher = {International Institute for Sustainable Development}, year = {2019}, url = {https://www.iisd.org/system/files/publications/comments-proposals-amendment-icsid-arbitration-rules.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }