On March 21, 2022, Member States of the International Center for Settlement of Investment Disputes (ICSID) approved amendments to ICSID&#8217;s rules for resolving disputes between foreign investors and host States. The amended rules come into effect on July 1, 2022.
The goal of the amendment was to draw on the lessons learnt from the over 700 ICSID proceedings conducted to date and to modernize, simplify and streamline the proceedings. Some important amendments to the ICSID Arbitration Rules address concerns relating to efficiency, costs of proceedings, greater transparency and security for costs.
The amended arbitration rules provide for greater transparency in the conduct and outcome of the proceedings through new provisions on the publication of documents and the presence of observers at the hearing. As per the amended rules, absent a clear objection within 60 days, parties will be deemed to have consented to the publication of the award. Likewise, tribunals may permit third parties, including the non-disputing treaty party, to make submissions in the proceedings. An additional feature addressing transparency includes disclosure obligations concerning third party funders that apply throughout the proceedings. Parties must now disclose the names and addresses of entities and persons from whom they are receiving funding, and if the funder is a judicial person, then the parties must also disclose who controls the funder.
The amendment also aims at reducing the environmental footprint of ICSID proceedings through the greater use of technology and less paper-intensive procedures. Under the new rules, all filings will be electronic, unless there are special reasons to maintain paper filings.
In order to streamline proceedings and make them more efficient, the amendment has introduced specific timelines for different phases of the proceedings, the most noteworthy being that awards will henceforth have to be rendered no later than 240 days after the last submission. Special procedures have also been introduced for applications to dismiss claims for a manifest lack of legal merit, bifurcation, preliminary objections and provisional measures. New provisions on expedited procedures provide that the parties to an arbitration can, at any time, consent to an expedited arbitration procedure, unless they have opted out. In the case of expedited proceedings, the award must be rendered 120 days after the hearing. The amendment also introduces a requirement that tribunals convene case management conferences at the outset to narrow the issues in dispute.
The amended rules also purport to change the current ICSID practice of requiring each party to bear their own costs by specifically stating the factors that the tribunal must take into consideration when making cost decisions. These include (a) the outcome of the proceeding or any part of it; (b) the conduct of the parties during the proceeding; (c) the complexity of the issues; and (d) the reasonableness of the costs claimed. A new provision on security for costs lays down the procedure and the factors that tribunals must consider when deciding on whether to award security for costs.
Furthermore, access to ICSID arbitration and conciliation has been broadened by granting access to the ICSID Additional Facility Rules in cases where both the claimant and the respondent state are not ICSID Contracting States or nationals of a Contracting State. Under the amended Additional Facility Rules, Regional Economic Integration Organizations, such as the European Union, may also be party to the proceedings.
New rules on mediation and fact-finding have also been added, which may be used as stand-alone procedures or in combination with arbitration proceedings.

ICSID adopts new rules and regulations

Receptive to widespread criticism, the President of India passed a further ordinance in November 2020, amending the Act once again. The 2020 Ordinance now provides that «[t]he qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by the regulations». On February 12, 2021, these changes were incorporated into the Arbitration and Conciliation (Amendment) Bill, 2021 passed by the Lok Sabha, the lower house of the Indian Parliament.
One of the reasons cited by the legislator to delete such qualifications was «to promote India as a hub of international commercial arbitration by attracting eminent arbitrators to the country». It thus appears that the Indian legislator has paid heed to voice of the international arbitration community and backtracked on its previous decision to limit the role of arbitrators in Indian seated arbitrations to only Indian qualified advocates.
It is now for the Arbitration Council of India (ACI), the newly created body set up by the 2019 Amendment, to frame these regulations. The ACI will be composed of members of the central government or persons nominated by the same. It remains to be seen whether the future rules will effectively open international arbitration in India to foreign practitioners – or whether they ultimately contain restrictions similar to those previously suggested. As of now, it is also open when these new regulations will come into force. Only time will tell.

Arbitration in India: one more amendment in the Indian legislator's cap

Schiedsgerichtsbarkeit

Gesellschaftsrecht / M&A

Immobilien

Alpiq_bw

Alpiq and Bouygues Construction initiated <a href="https://www.alpiq.com/alpiq-group/media-relations/media-releases/media-release-detail/bouygues-construction-expands-its-arbitration-claim-against-alpiq" target="_blank" rel="noopener">arbitration proceedings</a> against each other in 2019 to resolve their disputes regarding the post-closing purchase price adjustment and alleged breaches of representations and warranties, with a total amount in dispute of approximately CHF 320 m. The matter was placed before a Swiss arbitral tribunal constituted under the Swiss Rules of International Arbitration comprising Prof. Sébastien Besson (Chairperson), Dr. Roberto Dallafior and Dr. Urs Weber-Stecher. It involved the analysis of complex accounting and valuation issues. On December 22, 2020, Alpiq announced that the parties had reached a <a href="https://www.alpiq.com/alpiq-group/media-relations/media-releases/media-release-detail/arbitration-proceedings-settled" target="_blank" rel="noopener">settlement</a> under which Alpiq agreed to refund CHF 54.5 m to Bouygues Construction.
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Homburger&#8217;s arbitration team was led by partner Mariella Orelli and included counsel Kirstin Dodge, associates Bénédict Thomann, Dilber Devitre, Okan Uzun, Pietro Meineri and junior associate Magdalena Stock (all Arbitration). Homburger&#8217;s arbitration team was assisted by Homburger&#8217;s Corporate M&amp;A partners Hansjürg Appenzeller and Daniel Häusermann and Real Estate partner Stefan Gäumann, as well as expert teams from BDO London led by Nick Andrews and David Mitchell. On the clients&#8217; side the matter was dealt with by Peter Schib, Head Group Legal, and Martin Schindler, Head Corporate M&amp;A and Infrastructure.

Homburger successfully represented Alpiq in arbitration proceedings arising from Alpiq's sale of its Engineering Services Business to Bouygues Construction in 2018

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Homburger successfully represented Alpiq in arbitration proceedings arising from Alpiq's sale of its Engineering Services Business to Bouygues Construction in 2018

ICSID adopts new rules and regulations

Arbitration in India: one more amendment in the Indian legislator's cap

Investment Treaty Arbitration 2022: Switzerland

Investor-State Arbitration 2022

Investor-State Arbitration 2021

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Homburger successfully represented Alpiq in arbitration proceedings arising from Alpiq's sale of its Engineering Services Business to Bouygues Construction in 2018

ICSID adopts new rules and regulations

Arbitration in India: one more amendment in the Indian legislator's cap

Investment Treaty Arbitration 2022: Switzerland

Investor-State Arbitration 2022

Investor-State Arbitration 2021

Join the Team

Dilber Devitre

Karriere

Sprachen

Zulassung

Teams

Dilber
Devitre