12 March 2020 Marc Lenzo ArbitrationLinks

Highlights from the ICSID caseload statistics (Issue 2020-1)

In February 2020, ICSID released its latest caseload statistics. The statistics examine trends over the 2019 calendar year as well as the profile of the ICSID caseload historically going back to the first registered case in 1972. Highlights include as follows.

In 2019, ICSID registered 39 new cases and provided services for 18 cases governed by non-ICSID rules.

Arbitration rules

  • In line with past years, the majority of the 39 new cases registered were instituted under the ICSID Convention Arbitration Rules (35 cases), followed by the Additional Facility Rules (three cases) and the ICSID Convention Conciliation Rules (one case).
  • Of the 18 non-ICSID cases, 13 were governed by the UNCITRAL Arbitration Rules.

Jurisdiction

  • Of the new cases registered, jurisdiction was invoked primarily by bilateral investment treaties (62%), followed by the Energy Charter Treaty (12%), and investment contracts between the investor and host-State (10%).
  • Bilateral investment treaty disputes typically account for a majority of ICSID’s historic caseload (representing 60% of all cases). The 2019 statistics indicate an increased reliance on the Energy Charter Treaty to invoke jurisdiction and less reliance on investment contracts between investors and host states than in previous years.

Geographic distribution by state party involved

  • South America accounted for the largest share of cases registered in 2019 (26%), followed by the Middle East & North Africa (18%), Eastern Europe & Central Africa (16%), and Western Europe (10%). Eastern Europe & Central Africa historically accounted for a majority of ICSID’s caseload.
  • Colombia and Spain tied for the State parties involved the highest number of new cases (3 each)

Economic sector

  • The Oil, Gas & Mining sector and the electric power & other energy sectors each accounted for the largest share of cases registered in 2019 (26% each). These sectors also dominate ICSID’s historic caseload, accounting for 24% and 17% of all cases, respectively.
  • These sectors were following by disputes relating to construction (15%), transportation (8%), and finance, transportation and forestry (5% each).

Cases concluded in 2019

  • Of the total cases concluded in 2019, 78% of cases were decided by a tribunal and 22% were settled or otherwise discontinued.
  • Of the cases decided by a tribunal, claims were upheld in part or in full in 55% of cases, dismissed in 31% of cases, declined for lack of jurisdiction in 10% of cases, and dismissed for manifest lack of legal merit in 4% of cases.
  • ICSID’s historic caseload indicates that previously more cases have been typically dismissed for lack of jurisdiction each year (27%). The 10% dismissal rate in 2019 is the lowest rate recorded for the preceding 10 years.
  • Of the cases settled or discontinued, cases were settled at the request of both parties in 62.5% of cases. The remaining cases were equally discontinued at the request of one party, for lack of payment of advances, or had a settlement agreement embodied in an award at a party’s request (12.5% each).

Arbitrators, conciliators and ad hoc committee members appointed in 2019

  • Most appointments continue to be from Western Europe (44%), both in terms of appointments by ICSID and by the parties. This is followed by North America (22%), South America (14%), and South & East Asia & the Pacific (9%). The 2019 distribution is reflective and in line with the distribution in ICSID’s historic caseload.

The full caseload statistics can be viewed here and ICSID’s accompanying press release can be viewed here.