Originally from: Review of International Arbitral Awards

Preview Page

Two observations can be made concerning ICSID arbitration.

First, it appears that ICSID awards and ad hoc committee decisions lack consistency. This not only is a source of uncertainty, in particular with respect to the weight carried by these awards and decisions, but also has a negative impact on the authority that the ICSID system should command. Such inconsistency is particularly evident when it comes to the interpretation of the various grounds for annulment.

Second, over and above the confusion regarding the role of the ad hoc committees themselves, further confusion is generated by the fact that a given person can, often simultaneously, be a member of an ad hoc committee or arbitral tribunal, counsel to a party engaged in an ICSID arbitration, expert witness before an arbitral tribunal or ad hoc committee or even commentator of ICSID awards and decisions.

Of course there may be disagreement as to the pertinence of these observations. Some may consider this too hasty and negative a judgment. They might say that an objective appraisal of the entire population of disputes brought before ICSID shows that most cases are resolved successfully and accordingly, there is no reason to panic or call for extensive reform.  A number of arbitration practitioners with vast experience in ICSID arbitration and arbitration in general have taken such a stance.