Overview of Arbitration under the ICSID Additional Facility (2006 Rules)

An ICSID Additional Facility arbitration proceeding is governed by:

  • the ICSID Additional Facility Rules;
  • the ICSID Arbitration (Additional Facility) Rules; and
  • the Administrative and Financial Regulations. 

The main steps in an Additional Facility arbitration are depicted in the following flow chart.

Conduct of an Additional Facility Arbitration

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The ICSID Additional Facility Rules

The ICSID Additional Facility Rules define the scope of the Facility. Disputes between a State and a national of another State are eligible for arbitration under the Facility if:

  • they are investment disputes between parties, one of which is not an ICSID Member State or a national of an ICSID Member State; or
  • they do not directly arise out of an investment between parties, at least one of which is an ICSID Member State or a national of an ICSID Member State.

Because such disputes are not covered by the ICSID Convention (see Article 25(1) of the ICSID Convention), none of the provisions of the ICSID Convention is applicable to Additional Facility proceedings (Article 3 of the Additional Facility Rules).

An agreement to arbitrate under the Additional Facility Rules is subject to approval by the Secretary-General under the Additional Facility Rules (Article 3) before proceedings can commence.

The Arbitration (Additional Facility) Rules

The Arbitration (Additional Facility) Rules govern the arbitration process from the filing of the request for arbitration onward. Approval of access to the Additional Facility Rules must be granted before the request for arbitration can be registered under the Arbitration (Additional Facility) Rules.

In addition to the provisions of the Arbitration (Additional Facility) Rules, the laws of the place of arbitration apply to the proceeding (Article 20 of the Arbitration (Additional Facility) Rules). If a provision of the Arbitration (Additional Facility) Rules conflicts with a mandatory provision of the applicable law, that law prevails (Article 1 of the Arbitration (Additional Facility) Rules).

The Administrative and Financial Regulations

The Administrative and Financial Regulations contain provisions concerning:

These provisions apply mutatis mutandis to arbitration proceedings under the Additional Facility Rules (Article 5 of the Additional Facility Rules).

  • the ICSID Additional Facility Rules;
  • the ICSID Arbitration (Additional Facility) Rules; and
  • the Administrative and Financial Regulations.
    • they are investment disputes between parties, one of which is not an ICSID Member State or a national of an ICSID Member State; or
    • they do not directly arise out of an investment between parties, at least one of which is an ICSID Member State or a national of an ICSID Member State.

For further information, see:

  • Lucy Reed, Jan Paulsson and Nigel Blackaby, Guide to ICSID Arbitration (2nd ed.), Kluwer Law International (2010)
  • Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, The ICSID Convention: A Commentary (2nd ed.), Cambridge University Press (2009)
  • Aron Broches, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 1965: Explanatory Notes and Survey of its Application, Yearbook of Commercial Arbitration, Vol. 18, p. 627 (1993)
  • Aron Broches, A Guide for Users of the ICSID Convention, News from ICSID, Vol. 8, No. 1, p. 5 (1991)
  • Building International Investment Law: The First 50 Years of ICSID, Meg Kinnear, Geraldine Fischer, Jara Minguez Almeida, Luisa Fernanda Torres and Mairée Uran Bidegain (eds.), Wolters Kluwer (2015)