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A Critical Examination of Rule 41(5) of the ICSID Arbitration Rules, 2006

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image of The Journal of World Investment & Trade

What is an investment under the International Convention on Settlement of Investment Dispute between States and Nationals of Other States, 1965 (the ICSID Convention) has, since its inception, provoked controversy; indeed in most of the matters referred to ICSID tribunals, Respondents contested the jurisdiction of ICSID tribunals primarily on the grounds that the subject matters of the disputes did not satisfy the criteria of an investment dispute under Article 25, paragraph 1 of the Convention.In 2006, paragraphs (5) and (6) of Rule 41 of ICSID Arbitration Rules were amended with a view to establishing what may be described as a “screening process” to ensure that unmeritorious claims are not forwarded to tribunals. However, the amended rules also present certain legal problems; it is the purpose of this Article to examine those problems.

Affiliations: 1: Professor, LL.M (Cambridge), LL.M, PhD (London), Barrister Senior Associate Fellow, University of Warwick, School of Law, England; Associate Fellow, Institute of Advanced Legal Studies, University of London, ;, Email:, URL:


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