Brief Analysis of ICSID 2022 Fiscal Year Caseload

ArentFox Schiff

On October 14th, 2022, the International Centre for Settlement of Investment Disputes (ICSID) published its Annual Report for Fiscal Year (FY) 2022 covering the period from 1 July 2021 to 30 June 2022, including statistics on cases administered by the Centre during that period.

Similar figures had been published in the latest edition of ICSID Caseload Statistics. The Annual Report can be viewed here, and ICSID’s accompanying press release can be viewed here.

Decrease in Number of Registered Cases

According to ICSID (one of the five organizations of the World Bank Group), a total of 50 news cases were registered in FY 2022, marking a decrease as compared to the 66 total cases registered in FY 2021.

Treaty-Based Cases Dominate

The vast majority of cases registered in FY 2022 were brought under Bilateral Investment Treaties (BITs). These cases account for 56% of all new cases registered between July 2021 and the end of June 2022, followed by contract-based cases between investors and host States (13%), cases arising under the Energy Charter Treaty (11%), and cases brought on the basis of domestic investment laws (4%).

In addition, FY 2022 saw a variety of regional trade investment agreements invoked by investors, such as the North American Free Trade Agreement (NAFTA), now replaced by the United States–Mexico–Canada Agreement (USMCA), as well as the Dominican Republic-United States-Central America Free Trade Agreement (DR-CAFTA).

Balanced Case Outcomes Between States and Investors

Following the historical trend at ICSID, FY 2022 revealed a relatively balanced outcome of cases between States and foreign investors. Among cases adjudicated, 48% of awards upheld the investor’s claims in full or in part, and 28% of the cases concluded with the dismissal of the case. The remaining 24% were discontinued for various reasons.

Some Slow Progress Towards Geographical Diversity and Gender Equality

As in previous years, ICSID tribunals were populated heavily by arbitrators from Western Europe (41%), followed by arbitrators from North America (21%) and South America (17%). These figures reflect a modest improvement in tribunal diversity in comparison to the figures for 1966-2021, during which period over two thirds of appointments were of nationals from Western Europe or North America.

The distribution of appointments by gender has also remained similarly unbalanced. In FY 2022, 24% of the appointed arbitrators, conciliators, and ad hoc committee members were women, a slight decrease compared to the 27% appointed in 2021 but still more than the 23% appointed in 2020.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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