ICSID Releases Caseload Statistics for Record Year 2021
New Record of Registered Cases
According to ICSID (one of the five organizations of the World Bank Group), a total of 66 new cases were registered in 2021, higher than the previous record of 58 in 2020, and significantly higher than the 39 cases registered in 2019.
The high number of administered cases continues a trend of an increasing caseload at the institution since the late 1990s. This trend highlights investors' growing interest in the arbitration mechanism provided by the ICSID Arbitration Rules, which remains the preferred procedure for resolving investor-State disputes.
Treaty-Based Cases Dominate
As has been the trend, the vast majority of cases registered in fiscal year 2021 were brought under Bilateral Investment Treaties (BITs). These cases account for 58% of all new cases registered in 2021, followed by contract-based cases between investors and host States (10%), cases arising under the Energy Charter Treaty (8%), and cases brought on the basis of domestic investment laws (3%).
In addition, 2021 saw a variety of regional trade investment agreements invoked by investors, such as the North American Free Trade Agreement (NAFTA), now replaced by the United States–Mexico–Canada Agreement (USMCA). One such case, First Majestic Silver Corp. v. The United Mexican States was initiated in 2021 as a legacy claim under the NAFTA, with Arent Fox acting as counsel for the claimant.
2021 also saw the first arbitration brought under the ASEAN-China Investment Agreement, Qiong Ye and Jianping Yang v. The Kingdom of Cambodia. The case involves a telecom dispute in which Arent Fox serves as co-counsel to the claimants, along with the Hui Zhong Law Firm.
Balanced Case Outcomes Between States and Investors
Following a historical trend at ICSID, 2021 revealed a balanced outcome of cases between States and foreign investors. Among cases decided by tribunals in 2021, 31% of awards upheld the investors' claims in part or in full, and 33% of the cases concluded with the dismissal of the case. The remaining 36% were discontinued for various reasons.
Some Slow Progress towards Geographical Diversity and Gender Equality
As in previous years, ICSID tribunals were populated heavily by arbitrators from Western Europe (43%), followed by North America (18%) and South America (14%). These figures reflect a modest improvement in tribunal diversity in comparison to the figures for 1966-2020, which show that in that period, over two thirds of appointments were of nationals from Western Europe or North America.
The distribution of appointments by gender has also remained similarly unbalanced, although some progress has been made. In 2021, 27% of the appointed arbitrators, conciliators, and ad hoc committee members were women, a slight increase compared to the 23% appointed in 2020, and significant progress as compared to the 1966-2020 average, a period in which only 13% of adjudicators were women.
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