ICSID publishes statistics on caseload since its creation and during 2012, by José Ángel Rueda

ICSID has published a new set of statistics about its caseload during 2012 and the aggregate since it was created by the Washington Convention in 1965.

The ICSID Caseload – Statistics (Issue 2013-1)[1] indicates first that a record 50 new cases[2] were registered under the ICSID Convention and Additional Facility (AF) Rules in 2012 (40 ICSID Convention arbitration cases, 8 AF arbitration cases and 2 AF conciliation cases).[3] In addition, ICSID Secretariat administered 6 non-ICSID cases during the same period (4 Investor-State UNCITRAL arbitrations and 2 other cases).[4]

It is interesting to note that, despite certain arguments that ICSID only affects developing countries, during 2012 a number of cases were filed against undoubtedly developed countries such as Belgium, Canada, Germany, Hungary, the Republic of Korea, Spain and the United States of America.[5] Notwithstanding this, it is true that the vast majority of cases were filed against developing countries such as Algeria, Argentina, Egypt, Equatorial Guinea (three), Guinea (two), Indonesia, Laos, Pakistan, Peru (two, one involving a state agency), South Sudan, Tunisia, Uganda and Venezuela (nine).[6]

In addition, the year 2012 witnessed the consolidation of investment treaties as the main basis for claims against States by foreign investors.[7] 75% of cases had such treaties as the “basis of consent invoked to establish ICSID jurisdiction,” according to ICSID’s own nomenclature (BITs, 67%; ECT, 4%, NAFTA, 4%). 13% of cases were based on an investment contract between the investor and the host State and 12% were based on an investment law of the host State.[8]

Economic sectors involved in the investment disputes were varied during 2012. Oil, gas & mining accounted for 28% of cases, followed by 22% for “other industries” and finance and information & communication (10% each).[9]

68% of cases concluded in 2012 were decided by the arbitral tribunals appointed by ICSID or the parties,[10] of which 63% were awards upholding claims in part or in full, 26% were awards declining jurisdiction and 11% were awards dismissing all claims.[11] It means that it is not automatic that an investor obtains an award against the host State.[12]

Finally, the vast majority of arbitrators, conciliators and ad hoc Committee members appointed in 2012 came from developed countries: Western Europe (42%) and North America (24%).[13]

This Issue 2013-1 also indicates that since its inception in 1965 ICSID has registered 419 cases under the ICSID Convention and AF Rules.[14] In addition, it has administered a further 72 cases (most of them, investor-State UNCITRAL arbitration cases).[15]

As indicated above, investment treaties have so far been the main basis of consent to establish ICSID jurisdiction: BITs, 63%; ECT, 4%; NAFTA, 4%; ASEAN APPI, 1%; DR-CAFTA, 1%; Oman-U.S. FTA, 1%. 20% of cases were based on investment contracts and just 6% thereof were based on investment laws.[16]

State parties involved have so far come from South America (30%), Eastern Europe and Central Asia (23%), Sub-Saharan Africa (16%) and the Middle East & North Africa (10%).[17] Sectors involved have included 25% in oil, gas & mining, 13% in “other industries”, 12% in electric power & other energy and 11% in transportation.[18]

So far, the outcome of ICSID cases has not been as negative for host States as many could believe. Just 62% of cases have been decided by the arbitral tribunals while 38% have been settled or proceedings have been discontinued by some reason.[19] Of the cases resolved by the tribunals, 48% of awards upheld claims in full or in part, 28% were awards dismissing all claims, 23% were award declining jurisdiction and 1% were awards deciding that the claim were manifestly without legal merit.[20]

Finally, the vast majority of arbitrators, conciliators and ad hoc Committee members appointed since 1972 came from developed countries: 46% from Western Europe and 22% from North America.[21]

[2] See Part I, Chart 1 at p. 7.

[3] See Part II, Chart 1 at p. 22.

[4] See Part II, Chart 2 at p. 22.

[5] See Part II, Chart 5 at p. 25.

[6] Ibidem.

[7] See Part II, Chart 3 at p. 23.

[8] Ibidem.

[9] See Part II, Chart 6 at p. 26.

[10] See Part II, Chart 7 at p. 27.

[11] See Part II, Chart 7a at p. 28.

[12] See the text of the denunciation of the ICSID Convention by Venezuela, communiqué by the Ministry of Popular Power for Foreign Relations of Venezuela, 25 January 2012, available at: http://www.mre.gov.ve/index.php?option=com_content&view=article&id=18939:mppre&catid=3:comunicados&Itemid=108.

[13] See Part II, Chart 8 at p. 30, Chart 9 at p. 31 and Chart 10 at p. 32.

[14] See Part I, Chart 1 at p. 7 and Chart 2 at p. 8.

[15] See Part I, Chart 4 at p. 9.

[16] See Part I, Chart 5 at p. 10.

[17] See Part I, Char 6 at p. 11.

[18] See Part I, Chart 7 at p. 12.

[19] See Part I, Chart 8 at p. 13.

[20] See Part I, Chart 8a at p. 14.

[21] See Part I, Chart 12 at p. 18, Chart 13 at p. 19 and Chart 14 at p. 20.