On 1 February 2024, the International Centre for Settlement of Investment Disputes (ICSID) released its caseload statistics for the 2023 calendar year, available here. This blogpost examines the latest trends seen in the 2023 calendar year, as compared to previous years.

New cases registered: ISDS has rebounded

57 new cases were registered under ICSID’s rules, which is an increase of 16 new cases compared to 2022. This marks a strong rebound for investor-state arbitration, after some commentators speculated that the dip in 2022 indicated the start of a steady decline in investor-state arbitrations. In addition to this rise under ICSID rules, an additional 20 cases were registered under non-ICSID rules, with the United Nations Commission on International Trade Law (UNCITRAL) administering 14 of the new cases.

40% of the 2023 ICSID cases were initiated under a Bilateral Investment Treaty (BIT). This marks a slight decrease when compared to the totality of ICSID cases since records began, 58% of which have relied on BITs as the basis for jurisdiction. The remaining 60% of the new cases in 2023 were initiated under a variety of multilateral treaties, including the North American Free Trade Agreement (NAFTA), the United States – Mexico – Canada Agreement (USMCA) as well as the Energy Charter Treaty.

Oil & Gas and Mining remain key sectors for ISDS

The oil and gas and mining sectors represented 23% of the new cases. This is consistent with overall statistics, as 25% of all ICSID cases ever registered have been in those sectors. It is likely that this trend will continue, given the impact of geopolitical change on foreign investor relations, particularly given the significance of sovereign resources, the energy transition and environmental considerations.

The construction (18%) and transportation (18%) sectors were next in size, overtaking electric power & other energy (12%) compared to 2022 (where they were 10%, 9% and 17% respectively).

Regional diversity: a sunset on NAFTA?

2023 saw an increase in the use of multilateral treaties as the basis of jurisdiction, with NAFTA and the USMCA comprising 15% each of the new cases, compared to a total of 4% of cases in 2022.

States in Central America and the Caribbean accounted for the largest share (23%) of the new cases, an increase from 10% in 2022. The significant share of North American cases may have been influenced by the NAFTA sunset clause, following its replacement by the USMCA. As NAFTA cases could be brought up until end June 2023, investors may have decided to commence their cases before the expiry of that deadline.

In addition, there were a number of other cases which invoked treaties involving Central and Latin American states, for example, the Mexico-Peru Free Trade Agreement; the Mexico, Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua Free Trade Agreement; and the Central America-Panama Free Trade Agreement. This is a new development which may reflect geopolitical and related regulatory changes in the region in recent years.

Eastern European and Central Asian states saw a marked decline in new cases (27% in 2022 to 11% in 2023). While the number of cases in Sub-Saharan Africa increased by 7% from 2022, cases in Western Europe remained stable.

Following the amendments to ICSID’s Additional Facility rules in 2022, ICSID registered its first case involving a regional economic integration organisation. More on this amendment can be found here.

Case outcome: an ongoing trend

Decisions

69% of the cases concluded in 2023 were decided by a tribunal. Historically, outcomes in favour of states and investors respectively have been fairly balanced. 2023 skewed slightly more in favour of investors, with investor claims being upheld in most instances (55%). Tribunals found 31% of cases in favour of states on the merits and 14% of tribunals declined jurisdiction.

Settlement

Compared with 2022, in which 51% of all cases were either settled or discontinued, 2023 saw 31% of cases settle or be discontinued.

Diversity of arbitrator appointments

Nationality

In 2023, ICSID saw 44 different nationalities represented as arbitrators on ICSID cases. Notably, 50% of first-time appointees were nationals from low- or middle-income economies. The United States had 13 nationals appointed in 2023, with France (11) and Argentina (8) having the second and third highest number of appointees, respectively.

Gender

Gender diversity in arbitrator appointments improved this year, with 68% of arbitrators appointed being men and 32% being women. This compares with 77% men and 23% women in 2022, and 85% men and 15% women since records began.

While initiatives to raise awareness and increase diversity are gaining traction, far fewer women were appointed by the parties when done individually (as opposed to a joint appointment or appointment by ICSID itself), with Claimants appointing only around 5% of female arbitrators in 2023 compared to 10% in 2022. Encouragingly, ICSID, consistent with trends seen from other international institutions, has clearly embraced the need for gender diversity, with 51% of ICSID-appointed arbitrators in 2023 being female compared with 37% in 2022.

For more information, please contact Andrew Cannon, Partner, Liz Kantor, Professional Support Lawyer, Kyle Melville, Associate Designate, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Elizabeth Kantor
Elizabeth Kantor
Professional Support Lawyer
+44 20 7466 2406
Kyle Melville
Kyle Melville
Associate Designate
+27 10 500 2680

The authors would like to thank Lauren Viney for their contribution to this blog post.