Investment arbitration of energy and natural resources disputes: To ICSID or not to ICSID

The choice for investment arbitration cannot be made without consideration of some relevant factors. The options are usually between the International Centre for Settlement of Investment Disputes (“ICSID”), other institutions or ad-hoc arbitration under the Rules of the United Nations Commission on Trade and International Law (“UNCITRAL Rules”). The other institutions and ad-hoc arbitration are conveniently referred to as ‘Non-ICSID’. This essay interrogates the question of whether to use ICSID or not, for the resolution of energy and natural resources disputes and it makes reference to some factors which may influence the choice.

The essay adopts a comparative approach in the analysis of the relevant factors, with regards to ICSID and Non-ICSID. The essay comprises 8 short sections. Following this section 1 on introduction is section 2, which considers the significance of the choice between ICSID and Non-ICSID. The relevant factors are discussed in sections 3 – 6, pointing out the relative weaknesses and strength of each system. Section 7 presents the challenges of ICSID while section 8 contains a brief conclusion.