Investor-State arbitration is big business. The stakes are always high and the commencement of arbitration by an investor against a State is a huge step (and requires a huge commitment). 

Earlier this month the International Centre for Settlement of Investment Disputes (ICSID) published its updated caseload statistics (https://icsid.worldbank.org/news-and-events/news-releases/icsid-releases-2023-caseload-statistics) (current to 31 December 2023). 

This report updates the profile of the ICSID caseload historically since the first case in 1972. ICSID reports on its statistics twice each year.

As the report notes, there are now 165 signatory and contracting States to the ICSID Convention. Angola and Kyrgyz Republic were the most recent additions (in October and May 2022, respectively). 

As of 31 December 2023 there were 967 arbitration and conciliation cases registered under the ICSID Convention and the 'Additional Facility Rules'. The ICSID Additional Facility 'offers arbitration and conciliation for certain disputes that fall outside of the scope of the ICSID Convention'.1  The ICSID Additional Facility Rules were, prior to 2022, available only to Contracting States and nationals of Contracting States, but in July of that year the Rules were amended to allow disputes involving "Regional Economic Integration Organisations" (REIO). 'This accommodates international investment agreements that are signed by an REIO on behalf of regional entities and allows significantly expanded access to justice for Investors and States'.2

ICSID reports that between 1 January 2023 and 31 December 2023 it registered 53 ICSID Convention arbitration cases, 3 ICSID Additional Facility Arbitration cases and 1 ICSID Convention Conciliation case. This was an increase on 2022 (41 cases), but fell short of 2021's caseload (66 cases). 40% of the cases registered in 2023 arose under bilateral investment treaties, by far the most common source of parties' consent.

ICSID cases cover the globe. In 2023, 23% of cases involved Central America and the Caribbean, 19% involved North America, 16% involved South America, 12% involved Sub-Saharan Africa, 11% involved Eastern Europe and Central Asia and 11% involved Western Europe. The Middle East, North America and the European Union made up the balance. 

Australia is not specifically represented in the report on geographical spread, however there are a number of concluded and pending cases for Australian parties registered with ICSID involving Australian parties, including the case of AVZ International Pty Ltd, Dathcom Mining SA and Green Lithium Holdings Pte Ltd v Democratic Republic of the Congo (ICSID Case No ARB/23/20) commenced in June 2023. The tribunal was constituted in this case in September 2023. 

Most of the ICSID disputes for 2023 arose in the oil, gas, mining, construction and transportation industries with 'electric power and other energy' emerging as a key contender. It is likely that this category will continue to grow in the next few years, as States deal with the challenge of climate change and investors continue to develop alternate and renewable sources of energy.

The outcome of ICSID disputes is also reported. In 2023 69% of ICSID arbitrations were decided by the tribunal (in other words, 69% proceeded to a final merits hearing and the issue of an award). 31% were settled or the proceeding was otherwise discontinued. Of the 69%, in 55% of cases, the tribunal upheld the claims (either partially or fully), in 31% of cases the tribunal dismissed all claims and in 14% of cases the tribunal issued an award declining jurisdiction. 

The publication of the updated caseload statistics follows the publication of ICSID's 2023 Annual Report in late 2023. With ICSID having introduced amended rules at the beginning of 2023, the Secretary-General's opening message reported that:

… priority over the past year has been ensuring that parties and tribunals are well equipped to put [these new] rules into practice. 

A key achievement for ICSID during 2023 was the publication in November of an advance copy of a Code of Conduct for Arbitrators in International Investment Disputes (based on decisions made by the United Nations Commission on International Trade Law (UNCITRAL) at its fifty-sixth session). The Code was the product of a collaboration between the Secretariats of ICSID and UNCITRAL over a number of years and has been the subject of extensive consultation and debate.

Footnotes

1 https://icsid.worldbank.org/rules-regulations/additional-facility (accessed on 9 February 2024)

2 The New ICSID Rules and Regulations – an Overview, Lars Markert, Carlotta Bruessel and Masaki Kawasaki 

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