Written by: Ana Ubilava (PhD in Law candidate) and Prof Luke Nottage
[This is a version of a submission to the Attorney-General’s Department in response to the call by ICSID to comment on its comprehensive draft revisions to its rules governing various types of investor-state dispute settlement (ISDS) procedures.]
In August this year the International Centre for the Settlement of Investment Disputes (ICSID) announced its fourth and most extensive changes to dispute resolution rules, to date. The proposed amendments only concern the rules and not the Convention itself. ICSID Additional Facility (AF) rules will now be applicable to cases where neither respondent nor claimant is the ICSID Contracting State or national of a Contracting State, whereas previously at least one side had to be a (national of a) Contracting State. Thus, these dispute settlement facilities will be more widely available world-wide.
These proposals are important not only due to their scale, but also some unique aspects. ICSID is proposing a new dispute settlement mechanism, the Mediation Rules, deemed to be part of the ICSID AF Rules. These will be the first set of institutional rules for investor-state mediation (ISM) released by the world’s main arbitral institution for investment disputes. The International Bar Association published ISM Rules in 2012 but so far these seem to have had little impact in practice. The new ICSID Rules are likely to have more impact, but States like Australia should do more than just agree to AF Rules in its investment treaties or contracts.
Continue reading “ICSID’s New Mediation Rules: A Small but Positive Step Forward”