The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules

Law and Practice of International Courts and Tribunals, Vol. 10, 2011

Sydney Law School Research Paper No. 11/33

34 Pages Posted: 9 Jun 2011

See all articles by Chester W. Brown

Chester W. Brown

The University of Sydney Law School

Sergio Puig

University of Arizona - James E. Rogers College of Law

Date Written: April 7, 2011

Abstract

Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the consti- tution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.

Keywords: ICSID Arbitration Rules, Rule 41(5), summary dismissal, manifestly without legal merit, ICSID arbitration, international arbitration, arbitral procedure

Suggested Citation

Brown, Chester W. and Puig, Sergio, The Power of ICSID Tribunals to Dismiss Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules (April 7, 2011). Law and Practice of International Courts and Tribunals, Vol. 10, 2011; Sydney Law School Research Paper No. 11/33. Available at SSRN: https://ssrn.com/abstract=1859446

Chester W. Brown (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Sergio Puig

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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