Please tell us about your background and experience with investment disputes and arbitration.
In September 2023, I will celebrate my 20 th year at ICSID – time flies. As a Senior Counsel at ICSID I am the secretary for tribunals, conciliation committees, ad hoc commitees, and mediators. These proceedings involve disputes spanning a wide range of economic sectors and legal tools.
I lead a team consisting of ICSID lawyers and paralegals who handle ICSID disputes settlement proceedings. I also lead ICSID’s investor-state mediator activities, which includes the drafting the recently released ICSID Mediation Rules as well as amended conciliation frames. In this role, I have also conducted trainings on investment mediation for government officials and mediators. I have also supported our World Bank colleagues with various capacity-building initiatives.
In addition to my work in the mediation sphere I have also worked with ICSID’s institutional team on ICSID’s data analysis and statistical program. Before joining ICSID I worked in the World Bank Legal Vice-Presidency and Inspection Panel.
What are the main issues that face investor-state disputes (ISDS) and what role does ICSID play in addressing these issues?
Let me begin by stating that the international investment dispute resolution has been a dynamic field for many decades. This dynamism continues to this day, as states and stakeholders continue to work on evolving both the substantive and procedural elements of ISDS. I will highlight a few cases where ICSID played a key role.
The Code of Conduct for arbitrators in International Investment Disputes, which was recently completed. The Code was developed by ICSID, the UN and other organizations since 2017. It was then adopted by UNCITRAL (the United Nations Commission on International Trade Law) in July 2023. The Code, as its name suggests, is geared towards investment arbitration. The Code reinforces the arbitrators’ duty to be independent and impartial. It also provides guidance on issues such as double-hatting and disclosure requirements, among others.
ICSID played a major role in ensuring a cost-effective and time-efficient dispute resolution process, which is another reform priority of ISDS stakeholders. In ICSID arbitrations there are many factors that can influence the length of time to resolve a case. One of these is the procedural frame work that guides the arbitration. ICSID has recently modernised its procedural rules with the aim of maximizing efficiency in arbitration. This was achieved by a number of methods, including stipulating specific timelines for different steps and outcomes (such as the rendering of awards and decisions).
I’d like to start off by pointing out that the international investment dispute resolution area has been a very dynamic one for many decades.
The ICSID Mediation Rules came into force last year. The ICSID Mediation Rules are the first institution-wide mediation rules for an international organisation that is specifically designed to resolve investment disputes. These rules are timely, given the growing interest in a peaceful resolution of disputes or problems between investors and states. The ICSID Mediation Rules continue a trend that we’ve seen over the last decade, including in the drafting of investment treaties, the work done by the Energy Charter Community, ICSID data on settlement, and the 30+ investment mediations already conducted.
Many other topics fall under the umbrella of ISDS Reform, but this should give a flavour of ICSID’s contribution to this agenda.
What can be done to help?
The Singapore Convention marked a significant milestone in international dispute resolution and was instrumental to the development of investment mediation. The ICSID Mediation Rules, developed during the drafting of Singapore Convention by the international community, were closely aligned to the Singapore Convention requirements. We worked with our colleagues from UNCITRAL in order to ensure that the ICSID Mediation and Conciliation Frameworks are in line with the Singapore Convention’s requirements.
The Singapore Convention had an even more widespread halo-effect on mediation, and the acceptance of it as a viable process for dispute resolution. The Singapore Convention Week is an annual event that features panels and workshops about international dispute resolution including investment mediation. It plays a key role in promoting and sharing knowledge and understanding on mediation within the investor-state framework.
What are the priorities of ICSID and your views on the amicable settlement of investment disputes?
I believe I am speaking for my colleagues when i say that our first priority is to deliver world-class service to parties, commissions mediators, and tribunals involved in ICSID proceedings. This is a continuous process which involves assessing, refining and investing in best practices. We also update our procedures on the basis of experience. This is a very team-oriented effort.
In terms of procedures, ICSID introduced new rules and amended rules last year for both arbitration and conciliation, as well entirely new rules for the investment mediation. It is important to communicate lessons learned, as we have many cases that are under the new rules. We recently published a report
ICSID continues to play an important role for the future of amicable disputes settlement. UNCITRAL recently adopted the Guidelines on Investment Mediation as well as the Mediation Provisions to be used in Investment Treaties in July 2023. Other examples include the ICCA Panel of Experts to Develop a Paris Agreement Conciliation Annex, or the
International Centre for Settlement of Investment Disputes
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Frauke Nitzke is the Team Leader and Legal Advisor for ICSID’s Case Management Teams. Frauke Nitschke is a Team Leader and Legal Counsel for one of ICSID’s case management teams. She has worked in Washington, D.C. at the World Bank Inspection Panel.
ICSIDis a international arbitration institution founded in 1966 to resolve legal disputes and conciliations between international investors and state. ICSID has been the leading institution in the world for the settlement of international investments disputes. It has handled the majority of these cases. In most international investment agreements and numerous investment laws, states have designated ICSID to be the forum for the settlement of investor-state disputes.