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noviembre 14, 2018

Por: Diana Carolina Bernal, miembro de la Academia Colombiana de Derecho Internacional. 

Abogada de la Universidad Externado de Colombia, Visitor Fellow Lauterpacht Centre for International Law
de la Universidad de Cambridge, docente del Departamento de Derecho Minero Energético de la Universidad Externado de Colombia

On august 3, 2018, the International Centre for Settlement of Investment Disputes (ICSID) of the World Bank Group, has published the Working Paper “Proposals for amendment of the ICSID rules.” The Convention was established in 1966. This is the third time ICSID Convention is amended. The Working Paper seeks to address topics of especial concern for the international investment procedural regimen. The proposal was builds upon ICSID Secretariat per review of relevant cases and Members States and public suggestions for the purpose of carrying four objectives: (i) Continue modernization of ICSID procedure (ii) Simplification (iii) Reducing time and cost (iv) Go green.


Putting forward it change proposed throughout the ICSID rules, the secretariat call on the State Members on the proceedings under the ICSID Convention to: (i) the Administrative and Financial Regulations, (ii) arbitration, and conciliation rules, and (iii) the Additional Facility Proceedings: the Administrative and Financial Regulations, arbitration, and conciliation rules, fact-finding rules and mediation rules. Regarding changes proposed to ICSID Arbitration rules, it refers to obligation to disclose Third-Party Funding, enhanced transparency, initial procedures, new rule on security for costs, disqualification of arbitrators, timing of awards, expedited proceedings.


Achieve transparency, was one of the most important request in the field of investment dispute actors, as the Secretary General of the ICSID, Meg Kinnear,[1] has been mentioning. Coherence and predictability are the following ones. Transparency is clearly now an area deserving mots attention by states, investors and public and questions around whether they can be found as a duty and how they should enforce at the ICISD proceedings remains an open area for thought and discussion. The working paper on amendments is referrer to arbitration rule 44 to 49 and additional facility rule 54 to 58.


Thus, in ICSID cases have been asking: principally, ICSID is an administering institution. Secondly, the ICSID apply rules to tribunals and ad hoc committees –deliberations are in private and confidential-. Third, rules directed to the arbitration tribunals in self and of the publication of award decisions and orders. Arbitrations awards should in to the ICSID Convention address differently to arbitral awards addressed into the ICSID facility rules, as article 48.5 of the ICSID Convention state: the Centre shall not make public the award whit out the consent of the party.


On answer so, it observed that Proposed Rule 44 of the ICSID Convention stated: Publication of Awards and Decisions on Annulment (1) With consent of the parties, the Centre shall publish every Award, supplementary decision on an Award, rectification, interpretation, and revision of an Award, and decision on annulment. (2) Consent to publish the documents referred to in paragraph (1) shall be deemed to have been given if no party objects in writing to such publication within 60 days after the date of dispatch of the document. (3) Absent consent of the parties referred to in paragraphs (1) or (2), the Centre shall publish excerpts of the legal reasoning in such documents (“excerpts”).


The Proposed Rule 46 to arbitration and Proposed Rule 55 to Additional Facility high threshold for dismissal, parties will be able to publish other documents with agreed redaction on the ICSID website procedural details section for each case. Given this, parties will be able to publish other documents with agreed redaction on the ICSID website procedural details section for each case (AR 46; (AF)AR 55). In practice to that, the rule allows to the tribunal to open hearings unless a party objects. However, as described above, open hearings will be subject to logistical arrangements to preserve confidential information. Rue AR 47; and AF(AR) 56) also allow to the Centre to publish recordings and transcripts of the hearings unless the party objects.


Arbitration Rule AR 48 and (AF) AR 57) address the process for participation of non-disputing parties (NDP) by adding two criteria for consideration as to whether to allow an NDP written submission: first it must meet the test in AR 48(2) identify a kind of affiliation whit the party and would know whether it brings a new insight and secondly, should the NDP advise of any assistance to file up the submission. As was suggested, tribunal would address contribution on cost to NDP. Thus, NDP, should apply on the NDP Rule for permission to make a submission on any question beyond the interpretation or application of the treaty.


In any individual case, transparency should see as access to documents, hearings and non-disputing party participation.


According to Article 6(1) of the ICSID amendments to rules under the Convention should be adopted by two-thirds of the Member States of the Administrative Council and amendments to the Additional Facility rules require majority approval. As has been pointed out, the delivery will be in 2019 or 2020.


Arbitrator Intelligence (AI) as an academically affiliated non-governmental organization aims to promote transparency, diversity, and responsibility in arbitrator appointments. AI has developed an AI Questionnaire (AIQ). This survey precisely is aimed to provide particular reports on transparency in international arbitration, which parties, counsel, arbitrators, and arbitral institutions can use to select arbitrators, research appointed arbitrators, and monitor trends in the practice.

[1] Meg Kinnear, Moving with the times: amending the ICSID rules, Columbia FDI Perspectives, No. 233, August 27, 2018.

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