The Secretary-General's Power to Refuse to Register a Request for Arbitration under the ICSID Convention
Year: 2012
Type: article
Abstract: Under Article 36(3) of the ICSID Convention, the ICSID Secretary-General may refuse to register a request for arbitration if he or she finds, ‘on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre’.3 Often referred to as the ‘screening power’ of the Secretary-General,4 Article 36(3) of the ICSID Convention is limited to the issue of the jurisdiction of the Centre. This means that in deciding whether to register a request for arbitration, the Secretary-General is not entitled to consider the merits of the dispute. In 2006, the ICSID Administrative Council approved amendments to Rule 41(5) of the ICSID Arbitration Rules and Article 45(6) of the Additional Facility Rules (‘Rule 41(5)’), which now provide a textual basis for ICSID tribunals to dismiss summarily claims that are ‘manifestly without legal merit’.5 In contrast to the screening procedure under Article 36(3) of the ICSID Convention, Rule 41(5) of the ICSID Arbitration Rules permits ICSID tribunals to consider the merits of the claim in deciding whether it should be dismissed summarily. At a level of generality, Article 36(3) and Rule 41(5) serve complementary functions, namely, the efficient filtering of manifestly unworthy claims from other claims that are potentially meritorious. However, the two provisions operate in different ways.
Institutions: University of Arizona, The University of Sydney
Language: English
Subfield: Strategy and Management
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2078736636