ICSID – International Arbitration

June 13, 2024 by Paul-Raphael Shehadeh

Disclosure in international arbitration: text messages, WhatsApp messages, Skype calls and audio recordings

The arbitral tribunal in Amerra Capital Management LLC and others v. United Mexican States (ICSID Case No. UNCT/23/1) recently issued a procedural order in relation to document production.

The case is a pending legacy NAFTA claim in which the investors assert that Mexico breached the fair and equitable treatment provisions of NAFTA and expropriated their investments, taking the form of two mortgages on real estate in the State of Sinaloa.

In its Procedural Order No. 5 (made public on 11 June 2024), the arbitral tribunal, consisting of Professor Albert Jan van den Berg (presiding arbitrator), Mr Eduardo Siqueiros T. and Professor Jorge Viñuales indicated that the production of relevant documents extended to the production of relevant text messages and audio recordings. Continue reading “Disclosure in international arbitration: text messages, WhatsApp messages, Skype calls and audio recordings”

April 12, 2024 by Paul-Raphael Shehadeh

The first ever summary dismissal of ICSID annulment grounds for being “manifestly without legal merit”

On 2 February 2024, the ICSID ad hoc Annulment Committee in Nachingwea and others v. Tanzania, ICSID Case No. ARB/20/38 (the “Nachingwea Committee”) issued a Decision dismissing much of Tanzania’s annulment application, having found those parts to be “manifestly without legal merit”.

Issued ten years after the first consideration by an ad hoc Annulment Committee of Rule 41(5) objections to an annulment application,[1] the Nachingwea Committee’s Decision is the first to grant a Rule 41(5) preliminary objection.[2]

Rule 41(5) provides an expedited procedure for the disposal of claims which are manifestly without legal merit at an early stage of proceedings.[3] It is available in ICSID arbitration proceedings, as well as mutatis mutandis in Chapter VII proceedings,[4] including annulment proceedings.[5] Continue reading “The first ever summary dismissal of ICSID annulment grounds for being “manifestly without legal merit””

August 11, 2023August 11, 2023 by Paul-Raphael Shehadeh

ICSID Caseload Statistics (2023 Fiscal Year)

The ICSID Caseload Statistics have now been updated with new data for the fiscal year 2023 (“FY2023”) to capture statistics drawn from cases registered under the ICSID Convention, the Additional Facility Rules and other ICSID-administered cases between 1 July 2022 and 30 June 2023.

The International Centre for Settlement of Investment Disputes (“ICSID”) was established in 1966 by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) as a means of furthering the World Bank’s objective of promoting international investment through the provision of a neutral and reliable forum for the resolution of disputes between foreign investors and States. To date, the ICSID Convention counts 158 Contracting States and seven signatory States, bringing the total number of ICSID Member States to 165. Continue reading “ICSID Caseload Statistics (2023 Fiscal Year)”

August 11, 2023 by Mark Handley

New Code of Conduct for arbitrators in investment arbitration

The UN Commission on International Trade Law (UNCITRAL) has approved a Code of Conduct for arbitrators in international investment arbitration (available here). The Code is intended to apply to members of an ICSID arbitral tribunal or ad hoc committee, and to candidates for such roles, and also to apply to other investor-state arbitrations. The precise mechanics by which this will be achieved is unclear, and the commentary to the Code suggests that it may come to be incorporated into the UNCITRAL Arbitral Rules. Parties are free to agree that the Code should apply in their arbitrations and it is likely that this will become common.

The Code of Conduct is a mixture of codifying existing best practice, such as a prohibition on ex parte communications outside the remit of an initial appointment, and a requirement for independence and impartiality.

The Code also, however, contains a number of far-reaching new rules, in relation to so-called “double-hatting” where the same person acts as both arbitrator and party-appointed counsel in relation to the same actions by particular states or the same treaty provisions; in relation to the a requirement to maintain an arbitration’s confidentiality; and requirements for arbitrator disclosure.

Continue reading “New Code of Conduct for arbitrators in investment arbitration”

February 23, 2023March 1, 2023 by Charlyn Cruz

The Glass Ceiling Looms Large – Gender Diversity in Arbitration

In a previous blog, we looked at diversity, specifically in relation to gender parity, in the context of adjudication.[1] Although we have come a long way in this arena, the issue of gender diversity still casts a long shadow. It should therefore be no surprise that the world of arbitration suffers much of the same problem. Continue reading “The Glass Ceiling Looms Large – Gender Diversity in Arbitration”