Comments on ICSID Discussion Paper, “Possible Improvements of the Framework for ICSID Arbitration”

The IISD argues that the investor-state arbitration system must transition from a private commercial model to a more judicial approach based on democratic principles of legitimacy, independence, and transparency. The document specifically advocates for the full publication of all awards, the opening of hearings to the public, and the establishment of a fully independent appellate mechanism. A central concern is the conflict of interest inherent in the current system, where practicing lawyers serve as arbitrators and the ICSID remains structurally dependent on the World Bank Group.

• The current arbitration model is outdated because investor-state cases frequently involve "key issues of public policy and the balancing of private and public welfare issues" rather than traditional private commercial disputes.
• Transparency is currently insufficient in the broader investor-state system; IISD notes that while ICSID claims most cases are under its processes, UNCTAD data suggests as many as one third of known arbitrations occur outside this system, with many remaining "shrouded in secrecy".
• To meet basic transparency principles, ICSID should ensure the "prompt, complete and accessible publication of all awards, interim and final", as well as the publication of key litigation documents in Web-accessible versions.
• The practice of allowing practicing lawyers or partners of lawyers to serve as arbitrators creates a conflict of interest and is the "antithesis" of a mature legal system; IISD proposes using rosters of arbitrators who have no actual or perceived conflict of interest.
• ICSID's independence is "undeniably compromised" because it is financially and structurally dependent on the World Bank Group, with the World Bank President chairing its Administrative Council and the Bank's Legal Vice President serving as ICSID Secretary General.
• A prerequisite for ICSID to operate an appellate facility is its "divestiture by the World Bank" and its re-establishment as a single, independent body with governmental control outside the World Bank voting system.
• Regarding the proposed appellate body, IISD supports a model similar to the WTO Appellate Body, where positions are essentially full-time and members do not hold practicing legal positions.

APA

Mann, H., Cosbey, A., Peterson, L., & von Moltke, K. (2004). Comments on ICSID Discussion Paper, “Possible Improvements of the Framework for ICSID Arbitration”. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/investment_icsid_response.pdf

Chicago

Mann, Howard, Aaron Cosbey, Luke Peterson, and Konrad von Moltke. Comments on ICSID Discussion Paper, “Possible Improvements of the Framework for ICSID Arbitration”. International Institute for Sustainable Development, 2004. https://www.iisd.org/system/files/publications/investment_icsid_response.pdf.

Wikipedia

{{cite press release |last1=Mann |first1=Howard |last2=Cosbey |first2=Aaron |last3=Peterson |first3=Luke |last4=von Moltke |first4=Konrad |title=Comments on ICSID Discussion Paper, “Possible Improvements of the Framework for ICSID Arbitration” |publisher=International Institute for Sustainable Development |date=December 2004 |url=https://www.iisd.org/system/files/publications/investment_icsid_response.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@misc{mann2004comments, author = {Mann, Howard and Cosbey, Aaron and Peterson, Luke and von Moltke, Konrad}, title = {{Comments on ICSID Discussion Paper, “Possible Improvements of the Framework for ICSID Arbitration”}}, publisher = {International Institute for Sustainable Development}, year = {2004}, month = dec, url = {https://www.iisd.org/system/files/publications/investment_icsid_response.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }