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

This report by the International Institute for Sustainable Development (IISD) provides commentary on the International Centre for Settlement of Investment Disputes (ICSID) Secretariat's second working paper (WP #2) regarding proposed amendments to the ICSID Arbitration Rules. The IISD argues that the proposed changes are insufficient to promote meaningful reform of investor-state dispute settlement (ISDS) and suggests that several priority reforms require amendments to the ICSID Convention itself rather than just the Arbitration Rules.

• The IISD asserts that the proposed amendments in WP #2 do not adequately address the concerns of states and stakeholders regarding treaty-based investor-state arbitration and fail to promote "meaningful reform of investor–state dispute settlement (ISDS)."
• Regarding costs and duration, the IISD suggests that the proposed 'best-efforts' obligation for tribunals to meet time limits is too vague and non-binding. It recommends introducing penalties for tribunal non-compliance, such as a reduction in fees, and maintaining a public record of unjustifiable delays.
• The IISD criticizes proposed AR 51 on security for costs because it applies to counterclaims made by states, which creates additional hurdles for states to assert such claims. The report argues that security for costs should only be provided for the state, noting that investors have different capabilities and enforcement mechanisms than states.
• The report highlights the 'double-hatting' problem, where lawyers serve simultaneously as arbitrators and counsel. The IISD argues that the proposed rules only require disclosure rather than prohibition, and suggests that the ICSID Convention and rules should be amended to explicitly forbid the arbitrator–counsel dual role.
• The IISD recommends moving away from the system of party-appointed arbitrators to reduce the appearance of bias. It suggests implementing a roster system where arbitrators are drawn from a fixed list via lottery or nomination by an independent appointing authority.
• The report argues that current mechanisms for third-party funding (TPF) disclosure are 'minimalistic'. The IISD suggests expanding disclosure to include entire funding agreements and recommends banning certain types of TPF entirely to prevent speculative funders from influencing the process.
• The IISD advocates for the ability of affected non-parties—such as local communities, Indigenous Peoples, and environmental entities—to join or intervene in arbitrations, arguing that current amicus curiae submissions are insufficient for meaningful participation.
• The report calls for higher transparency standards, suggesting that ICSID should adopt or exceed the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. It specifically recommends amending the ICSID Convention to allow for the mandatory publication of awards without requiring party consent.

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 report |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

@techreport{internationalinstituteforsustainabledevelopment2019summary, author = {{International Institute for Sustainable Development}}, title = {{Summary Comments to the Proposals for Amendment of the ICSID Arbitration Rules}}, institution = {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} }