The Challenge of Establishing a Multilateral Tribunal at ICSID

This article proceeds from the premise, explained herein, that the EU’s new system of ISDS is not compatible with the ICSID Convention and asks whether, nevertheless, a new multilateral system based broadly on that model can be designed to work at the Centre without amending the Convention. Is it possible, for example, for ICSID to serve as a forum for the negotiation of an instrument that would create a new multilateral ISDS mechanism outside of the ICSID Convention? Or, considered differently, in the event that negotiations for a new mechanism occur in some other forum, can ICSID and its secretariat nevertheless serve as the international organization onto which the new mechanism might be docked? These questions are of existential importance to ICSID as an institution. For if states agree to establish a multilateral investment court to replace ICSID Convention arbitration, the question must be asked as to what will be left for ICSID as an institution to do, at least with respect to disputes arising under investment treaties.