The Secretary-General's Power to Refuse to Register a Request for Arbitration Under the ICSID Convention
ICSID Review—Foreign Investment Law Journal, Forthcoming
29 Pages Posted: 24 Apr 2012
Date Written: March 21, 2012
The main purpose of this article is to assess the practice of ICSID in the process of registration of arbitration requests and to provide a practical review of the main case-related function of the Secretary-General. Until recently, Article 36(3) of the ICSID Convention had been relatively uncontroversial. However, some critics have argued that it is becoming more difficult to persuade the Secretary-General to register a request for arbitration than it is to persuade an arbitral tribunal to exercise jurisdiction over a claim, and have noted that this is “troubling, given that there is no appeal open to a putative claimant should the Secretary-General refuse to register a request for arbitration.” Others have harshly criticized the Centre for declining to refuse the registration of certain claims. In light of this debate, the Centre’s renewed emphasis on timeliness in the registration process and the adoption of the new Rule 41(5), it is appropriate to consider the purpose and operation of the Secretary-General’s screening power. This evaluative process is complex, given that the Centre publishes only limited information about its decisions to refuse to register requests for arbitration. However, in this article we have considered all the examples reported by ICSID staff where claims were found to be “manifestly outside the jurisdiction of the Centre”. Of the 13 occasions on which the Secretary-General has refused to register a request for arbitration, this article covers eight such instances, while excluding (at least) two known instances where the requesting parties apparently expected the refusal, so that they could set in motion another procedure for the settlement of the dispute.
Keywords: ICSID, Registration Powers, Arbitration, International Arbitration, Investor-State Dispute Settlement, International Dispute Settlement, International Investment Law
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