One of the innovative features of the new ICSID Arbitration Rules, in force as of 1 July 2022 (the “2022 ICSID Arbitration Rules”), figures in Chapter XII, which allows parties to opt into ICSID expedited arbitration. The principal purpose of the ICSID expedited procedure is to reduce the length of ICSID arbitration proceedings and, thus, their costs, regarding “three main phrases in an arbitration with long durations […] (i) the establishment of the Tribunal; (ii) written procedures, especially interlocutory applications; and (iii) rendering the Award.”
As explained on the ICSID’s website, when ICSID expedited arbitration is chosen by parties, “all matters before the Tribunal [are joined] in one proceeding. A party may raise preliminary objections but cannot request bifurcation of the objections. The Tribunal deals with all questions in its Award. The parties may request production of documents and make other procedural applications. These applications run in parallel with the main schedule”.
Consent to ICSID Expedited Arbitration
To initiate expedited arbitration, parties to an investment-related dispute need to consent to it first. Pursuant to Rule 75 of the 2022 ICSID Arbitration Rules, consent can be made “[a]t any time” by a joint notification to the Secretary-General.
The emphasis on the initiation of expedited arbitration by express mutual consent differentiates it from the regime of initiation of expedited arbitration under the arbitration rules of other arbitral institutions.
For instance, some institutions provide in their arbitration rules that the expedited procedure applies automatically for cases where the amount in dispute does not exceed a certain monetary threshold. This is the case of the ICC Arbitration Rules. Under Article 30(2) and Article 1(2) of Appendix VI of the 2021 ICC Arbitration Rules, the expedited procedure shall apply if the amount of dispute does not exceed (a) USD 2,000,000.00 if the arbitration agreement under the ICC Arbitration Rules was concluded on or after 1 March 2017 and before 1 January 2021, or (b) USD 3,000,000.00 if the arbitration agreement under the ICC Arbitration Rules was concluded on or after 1 January 2021.
Consent to ICSID expedited arbitration must be made in addition to the agreement to arbitrate under the ICSID Convention. As suggested in Working Paper No. 1, the consent to ICSID expedited arbitration may be formulated as follows:
The [Government]/[name of constituent subdivision or agency] of [name of Contracting State] and [name of investor] hereby consent to submit to the International Centre for Settlement of Investment Disputes (hereinafter the “Centre”) any dispute arising out of this agreement for settlement by arbitration pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter the “Convention”). The Parties agree to apply Chapter XII of the  Arbitration Rules of the Centre (Expedited Arbitration) to the arbitration proceeding.
The 2022 ICSID Arbitration Rules also provide in Rule 86(1) that the parties “may opt out of an expedited arbitration at any time by jointly notifying the Tribunal and Secretary-General in writing of their agreement.” In turn, Rule 86(2) stipulates that the arbitral tribunal may also decide that the proceeding shall no longer be expedited but only “[u]pon request of a party”. When assessing such a request, the arbitral tribunal “shall consider the complexity of the issues, the stage of the proceeding and all other relevant circumstances.”
Appointment of Arbitrators in ICSID Expedited Arbitration
According to Rule 76(1) of the 2022 ICSID Arbitration Rules, ICSID expedited arbitration should be handled, at the choice of the parties, by a sole arbitrator or by a three-member arbitral tribunal. The parties’ choice in this respect shall be notified to the Secretary-General within 30 days of the notice of their consent to ICSID expedited arbitration. If the parties do not notify their choice to the Secretary-General, Rule 76(3) provides that, by default, the tribunal shall consist of a sole arbitrator (which will also necessarily reduce arbitration costs).
Although the parties can agree on the method of appointment of the sole arbitrator or the arbitral tribunal (Rule 76(4)), in the absence of their agreement, Rules 77 and 78 prescribe an appointment method which has been visually summarized on the ICSID website as follows:
The Procedural Timeline of ICSID Expedited Arbitration
The procedural timeline has been significantly shortened for ICSID expedited arbitration as compared to ordinary ICSID Arbitration.
First Session – According to Rule 80, “The Tribunal shall hold a first session pursuant to Rule 29 within 30 days as of the constitution of the Tribunal”. This is half the time allocated to hold the first session in regular ICSID arbitration, which is 60 days as of the constitution of the tribunal as per Rule 29. Absent an agreement by the parties and the tribunal to the contrary, the first session shall be held remotely.
Parties’ Memorials – Rule 81 contains specific deadlines and limits regarding the length of the written memorials as follows:
- The claimant’s memorial is to be filed within 60 days of the first session (Rule 81(1)(a)) and shall not exceed 200 pages (Rule 81(1)(c));
- The respondent’s counter-memorial is to be filed within 60 days of the filing of the memorial (Rule 81(1)(b)) and, again, shall not exceed 200 pages (Rule 81(1)(v));
- The claimant’s reply is to be filed within 40 days of the filing of the counter-memorial (Rule 81(1)(d)) and shall not exceed 100 pages (Rule 81(1)(f));
- The respondent’s rejoinder is to be filed within 40 days of the filing of the reply (Rule 81(1)(e)) and shall also not exceed 100 pages (Rule 81(1)(f)).
In ordinary ICSID arbitration, the procedural deadlines for memorials are typically discussed during the first session. The deadlines for written submissions, either agreed upon by the parties or determined by the arbitral tribunal, are then recorded in a Procedural Order No. 1. Their duration usually exceeds the deadlines provided for expedited arbitration in Rule 81 of the ICSID Arbitration Rules.
Hearing – Pursuant to Rule 81(1)(g), the hearing shall be held “within 60 days after the last written submission is filed.” The 2022 ICSID Arbitration Rules do not provide for the submission of post-hearing briefs in ICSID expedited arbitration, another time-saver.
Statements and Submissions on Costs – Pursuant to Rule 81(1)(h), the parties are to file their statement of costs and written submissions on costs within 10 days of the last day of the hearing.
Award – According to Rule 81(1)(i), in ICSID expedited arbitration the tribunal must render the award as soon as possible but no later than “120 days after the hearing”. To compare, under ordinary ICSID arbitration, pursuant to Rule 58(1), in a case where the tribunal is to rule on both jurisdiction and merits of the case, the final award shall be rendered as soon as possible, but no later than “240 days after the last submission”.
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While the option to choose expedited arbitration is a welcome innovation as it aims at reducing the length of the ICSID investment arbitration to “470-530 days after the day of registration in a single proceeding without bifurcation”, it will be interesting to see whether parties to ICSID arbitration in fact opt for its expedited version in the future. In the absence of current data, it would be premature to draw any conclusions as to its success, but its opt-in nature will surely restrain its regular use.
 Proposals for Amendment of the ICSID Rules – Working Paper, para. 657.
 ICSID Arbitration Rules, Rule 75 “Consent of Parties to Expedited Arbitration”.
 Proposals for Amendment of the ICSID Rules – Working Paper, para. 668.
 Proposals for Amendment of the ICSID Rules – Working Paper, 2 August 2018, para. 669.
 ICSID Arbitration Rules, Rule 86 “Opting out of Expedited Arbitration”.
 Expedited Arbitration – ICSID Convention Arbitration (2022 Rules), ICSID website.