Introduction

A large number of bilateral investment treaties and some domestic laws on foreign investments provide for arbitration under the ICC Rules of Arbitration (the ‘ICC Rules’) as an option available to investors wishing to initiate proceedings against the host state for alleged breaches of the treaty or the law.1 To date, there have been 33 such cases since the first investment treaty arbitration under the ICC Rules was initiated in 1996.2

In addition, a smaller number of treaties provide for specified ICC organs or officials to act as appointing authority in cases not subject to the ICC Rules. Pursuant to such provisions, ICC organs or officials have acted in this capacity in a number of treaty cases conducted under arbitration rules other than those of ICC, either because the underlying treaty authorised it to do so, or because the Secretary General of the Permanent Court of Arbitration designated it as appointing authority under the UNCITRAL Arbitration Rules.

Although treaty-based cases still account for a relatively small proportion of ICC arbitrations, the number is on the increase.3 As the cases touch upon matters of international law and sovereign rights and tend to involve sensitive matters of public interest, the attention these cases attracts is greater than their number would suggest. Although the ICC Rules apply to contractual arbitrations and treaty-based arbitrations alike, a number of changes introduced in the 2012 revision were intended to apply to investor-state arbitrations only, or to facilitate administration of such cases by the ICC Court.4 At the same time as the 2012 revision of the ICC Rules, ICC also set up a Task Force on Arbitration Involving States or State Entities within its Commission on International Arbitration and ADR. Although the Task Force’s mandate encompassed all cases involving states and state entities, the report that was ultimately produced deals with several aspects of the Court’s practice that concern the administration of investor-state cases and will thus be relevant to the discussion that follows.5 Our analysis will cover jurisdictional and procedural aspects of treaty-based cases filed with the ICC Court both before and after the 2012 revision of the Rules.

Place of arbitration in treaty cases

The vast majority of investment treaties offer investors at least two different fora in which to bring investor-state disputes. When ICSID arbitration is the chosen dispute settlement mechanism, there is no need to choose a place of arbitration, on account of the self-contained and autonomous nature of such arbitration. When other types of arbitration are chosen, it is rare for investment treaties to expressly mention the place of arbitration.6 The choice is instead left to the parties or, ultimately, to the tribunal and/or the administering institution. It is a choice that carries with it important <page_26> consequences, as the state courts at the place of arbitration will be competent to hear any challenges brought against the award.7

Many investment treaties referring to ICC arbitration include a reference to Paris in the clause, without expressly designating Paris as the place of arbitration (e.g. ‘arbitration at the ICC Court of Arbitration of Paris’ or ‘under the Rules of the Paris International Court of Arbitration’). In such cases, it is the Court’s practice to invite the parties’ comments on whether this reference was intended to designate Paris as the place of arbitration and, failing their express agreement thereon (in investment treaty arbitration it is relatively common for the respondent state not to participate), to fix Paris as the place of arbitration.8

If there is no mention of a seat in the treaty clause – or the parties propose different seats – the Court makes an independent determination of the suitability of the potential seats (taking into account, among other things, their reliability as arbitration-friendly places, their neutrality and geographical location in relation to the parties and their infrastructure).9 In so doing, the Court has discretion to designate a seat that was not proposed by either party. In Case No. 21603, in which the respondent state did not participate, the claimant proposed the capital city of its home state. In line with its general practice of trying to select a neutral venue, the Court decided that Paris would instead be the place of arbitration. Other institutions seldom enjoy such broad discretion as their rules typically provide for a default place of arbitration where the parties do not agree.10

Although there is no presumption that an ICC arbitration should be seated in Paris, in the vast majority of treaty-based cases conducted under the ICC Rules, Paris was selected as the place of arbitration, by agreement of the parties (expressed in the arbitration clause or subsequently) or pursuant to a decision of the ICC Court. In most cases where the parties participated in the proceedings, that choice appears to have been accepted without much discussion. An exception, however, is ICC Case No. 19459, in which the claimant proposed a place of arbitration in country outside the EU, while the respondent suggested a seat within the EU (although not Paris). Following an exchange of views, the parties ultimately agreed on Paris as the place of arbitration.

In several cases, the place of arbitration was a city other than Paris. For example, in ICC Case No. 20662, involving an EU state as respondent and an investor incorporated in another EU state, the parties agreed early in the proceedings that the arbitration would be seated in the capital city of the respondent state. This agreement was reached by the parties relatively early in the proceedings and the matter therefore never came before the ICC Court.

In two unrelated cases, in which the respondent state did not participate, the ICC Court designated Geneva as the place of arbitration. In ICC Case No. 21371, the Court had regard to the existence of a pending, parallel contractual arbitration seated in Switzerland, and in ICC Case No. 21845 it found Geneva (which was the claimant’s suggestion) to be a suitable neutral place in light of the circumstances of the case.

Although the legal seat of the arbitration is usually the place where the hearings take place, this does not have to be so: hearings can be held anywhere.11 In Case No. 19255, which was brought under a bilateral investment treaty, a commercial contract and the domestic investment statute of the respondent state, the ICC Court fixed Paris as the place of arbitration, upon the claimant’s suggestion, to which the respondent state did not respond. However, for logistical reasons, the jurisdictional hearing was held in the capital city of the claimant’s country (which was another EU state).

Jurisdictional issues

Treaty-based arbitrations often raise a number of jurisdictional issues peculiar to such disputes, which distinguish them from disputes based on contracts. They pertain to jurisdiction ratione personae (e.g. whether the claimant qualifies as an investor in the meaning of the applicable treaty), ratione materiae (e.g. whether the investor has made a protected investment or whether it can invoke the dispute settlement clause contained in another treaty on the basis of the most favoured nation clause contained in the prime treaty), ratione temporis (e.g. whether the investment treaty was in force at the relevant time), and the parties’ consent to arbitrate under the relevant rules (e.g. the effect of cooling-off periods and fork-in-the-road clauses). These issues arise in similar terms in treaty-based arbitrations regardless of the applicable rules.

Who makes the jurisdictional decision?

Under most institutional arbitration rules, the institution is empowered to make a preliminary administrative decision on its own competence to administer the proceedings. The purpose of this power is to avoid the cost and effort of setting the proceedings in motion and constituting the arbitral tribunal in cases where the arbitral tribunal will almost certainly find that it does not have jurisdiction. If there are objections over some of the parties or some of the claims, the institution’s screening power spares those parties the inconvenience <page_27> of having to participate in the proceedings when they have manifestly not consented to arbitrate under the relevant rules and to exclude claims which manifestly exceed the scope of the expressed consent. If the institution considers that it is competent to administer the case, any jurisdictional objections that are subsequently raised or maintained will be referred to the arbitral tribunal. Only arbitral tribunals are empowered to rule on their own jurisdiction (unless an arbitral tribunal’s decision on jurisdiction is challenged, in which case a court at the place of arbitration will rule on the question). Therefore, it is only in cases of manifest lack of jurisdiction that an institution would decide that an arbitration cannot proceed (or cannot proceed with respect to all parties or all claims). Whenever the decision requires a factual or legal analysis that institutions are not empowered to make, the matter will be submitted to the arbitral tribunal.

Under the ICC Rules, this preliminary screening power is shared between the Court and the Secretary General: jurisdictional objections are referred directly to the arbitral tribunal ‘unless the Secretary General refers the matter to the Court for its decision under Article 6(4)’.12 The matter is referred to the Court whenever the jurisdictional issue appears so serious that it might lead to a negative decision.

Given the complexity of most of the jurisdictional issues that arise in treaty-based disputes, the matter is generally referred directly to the arbitral tribunal.13 There have been two exceptions to this practice, in cases which presented rather unusual circumstances.

In Case No. 21927, the claimant initiated arbitration against what was undisputedly a private company, relying on a bilateral investment treaty between the claimant’s and the respondent’s respective countries of origin. The investments at issue were four turnkey contracts allegedly won through a public procurement process. They contained a dispute resolution clause referring potential disputes to named court in the capital city of the respondent’s home state. The claimant argued that the respondent had ‘serious dominance’ in its home state and that the ICC clause in the bilateral investment treaty should prevail over the choice-of-court provision in the contracts ‘in order for the impartiality of the courts and judiciary not to be overshadowed’.

The respondent raised a number of jurisdictional objections, emphasising inter alia that (i) it was a private company whose ultimate owners were established outside the state that was a party to the bilateral investment treaty invoked by the claimant; (ii) the turnkey contracts were negotiated directly by the parties and not won by tender; and (iii) the contracts were not investments protected by the treaty and in any event contained a clear choice-of-court clause.

These objections were referred to the ICC Court under Article 6(3) of the ICC Rules. The Court attached particular importance to the first objection, concerning the respondent’s identity and consent to arbitration under the ICC Rules. Given that the respondent was a private entity and could not be considered a signatory to the bilateral investment treaty in question, the Court decided that the case would not proceed.

In Case No. 20291, the respondent, a Caribbean state, contended that the arbitration clause in the bilateral investment treaty relied upon by the claimant (which was incorporated in another Caribbean state) was misrepresented in the claimant’s submission. Specifically, the respondent state claimed that a sentence was missing in the text of the bilateral investment treaty as submitted by the claimant and that this sentence required both disputing parties to agree to ICC arbitration. The state also furnished diplomatic notes between the two states confirming the existence of the sentence in question and another version of the treaty in which it appeared. In addition, the state also argued that the claimant was not an investor and that the economic transaction in question did not qualify as a protected investment.

The Secretary General of the ICC Court decided to refer the matter to the Court under Article 6(3). Given the factual analysis required by the respondent’s allegation (i.e. ascertaining which of the two versions of the treaty was the authentic one), the Court decided to refer the matter to the tribunal. The analysis of the second and third objections led to the same conclusion, as they too would require legal and factual analysis.

ICC Court scrutiny of awards on jurisdiction

Arbitral tribunals’ decisions on their own jurisdiction are examined by the Court as part of the scrutiny process under Article 34 of the Rules, and may give rise to comments by the Court.

In the first ICC treaty case to reach the merits stage, the partial award on jurisdiction was scrutinised by the Court. The Court invited the tribunal to develop its analysis with respect to the nationality of the claimants and their right to invoke the bilateral investment treaty in question. The tribunal did so in the award eventually notified to the parties.

In another case, the respondent’s jurisdictional objections were referred to the arbitral tribunal under Article 6(3). When scrutinising the draft partial award on jurisdiction, rendered by a majority, the Court <page_28> invited the majority to expand upon its finding that a loan agreement constituted a protected investment under the relevant investment treaty. Specifically, the tribunal’s attention was drawn to the lack of reasoning on whether or not a loan agreement could result in a ‘contribution’ to the host state economy, as required by numerous precedents, and whether the claimant could be considered as an investor within the meaning of the treaty. The Court also invited the arbitral tribunal to examine certain aspects of its own jurisdiction that had not been raised by the parties, including the six-month waiting period provided by the treaty and whether or not the claimant had established a prima facie case sufficient for the tribunal to uphold its own jurisdiction.

In yet another case, the claimant relied on several instruments in support of the tribunal’s jurisdiction. It referred firstly to the contract and then, as alternatives, to a bilateral investment treaty and a national investment statute. The Court invited the arbitral tribunal to expand on its reasoning as to whether the alternatives were excluded from the analysis of the tribunal’s jurisdiction, as both investment protection instruments provided that they could be used only ‘in the absence of an agreed procedure’ and the contract clearly stipulated ICC arbitration.

Constitution of the arbitral tribunal: number and selection of arbitrators

Arbitration clauses in investment treaties tend to be imprecise on procedural matters. Consequently, the disputing parties, the arbitral tribunal or the administering institution are often required to fill the gaps. The ICC Rules give the ICC Court a significant role in constituting the arbitral tribunal in the absence of party agreement, particularly with respect to the number of arbitrators, their selection and the challenge or replacement of any member of the arbitral tribunal.14

In a relatively large number of ICC treaty-based cases, the disputing parties agreed directly on the number of arbitrators. When required to decide on this issue, the ICC Court is empowered to fix the number at either one or three arbitrators. The Court must take into account that Article 12(2) creates a presumption in favour of a sole arbitrator. Many cases, however, justify departing from this presumption. A review of the ICC Court’s decisions in treaty-based cases reveals a tendency to submit such cases to a tribunal of three arbitrators.15 The reasons for such a decision might differ from case to case but the choice of three arbitrators has in most cases been dictated by the fact that sensitive matters of public interest are generally at stake in such disputes. Other factors, such as the amount in dispute, the legal complexity of the case, and whether or not the state is participating in the arbitration, have also led to a similar decision.

In one case, in which the respondent state initially did not participate, the claimant proposed that the ICC Court should fix the number of arbitrators at three. The Court did so given that it was an investor-state dispute involving matters of public interest, that the amount in dispute was high (€ 184 million) and that the respondent was not participating in the proceedings. The respondent state subsequently started participating in the proceedings and contributed to the constitution of the arbitral tribunal by nominating an arbitrator.

In another case, the ICC Court decided to appoint a three-member tribunal despite the relatively low amount in dispute (below US$ 5 million). The Court considered several previous cases, including another treaty case pre-dating the 2012 ICC Rules, in which the Court had decided to submit the case to three arbitrators despite the modest amount in dispute (US$ 500,000) and the claimant’s request that a sole arbitrator be appointed. As in the subsequent case, the Court considered that the case involved both ‘contract claims’ and ‘treaty claims’, and therefore raised complex issues of both contract and treaty interpretation.

The only exception to the practice of appointing three-member tribunals in treaty-based cases under the ICC Rules is ICC Case No. 19320, which to date is therefore the only ICC treaty case to have been heard by a sole arbitrator.16 The case, which is in the public domain due to a successful challenge in the Paris Court of Appeal, was brought by claimants incorporated in three different jurisdictions and was based on Madagascar’s alleged violations of the bilateral investment treaty between Belgium/Luxembourg and Madagascar. The main reasons for the Court’s decision to submit the case to a sole arbitrator were the relatively low amount in dispute (approximately US$ 7.6 million) and the relatively straightforward nature of the dispute, which was handled in a short time (less than 18 months between the request for arbitration and the final award).

One of the innovations introduced in the 2012 ICC Rules concerns the appointment of arbitrators in cases involving states and state entities. Article 13(4)(a) of the Rules, as amended in 2017, provides that where ‘one or more of the parties is a state or may be considered to be a state entity’,17 the Court may ‘appoint directly’ to act as arbitrator any person whom it regards as suitable. The expression ‘appoint directly’ refers to the situation where the Court does not follow its usual practice of making the appointment upon the <page_29> proposal of an ICC National Committee or Group, but directly selects the individual to be appointed on the basis of a recommendation made by the Secretariat.18 This provision was intended to respond to concerns expressed by states over the role played by ICC National Committees and Groups, which are often business organisations in their respective countries, and, as such, may be considered as lacking the neutrality required in the appointment process.

Although not mandatory (‘The Court may also appoint directly...’), it has been the Court’s regular practice since the adoption of this provision to make direct appointments in cases involving states and state entities. This is particularly true in investor-state cases, where the underlying public interests involved makes this approach all the more justified. Whenever it has to appoint an arbitrator in a treaty-based case (a sole arbitrator, a presiding arbitrator, or an arbitrator to be appointed on behalf of a party that has failed to nominate one), the Court will take into account the particularities of such disputes and will appoint arbitrators having the required expertise and experience.

Emergency arbitration

Emergency arbitration was introduced in the 2012 ICC Rules to allow a party to obtain the appointment of an emergency arbitrator to hear an application for urgent measures (‘measures that cannot await the constitution of an arbitral tribunal’19) prior to the transmission of the file to the arbitral tribunal.

As a requirement for the application of the emergency arbitration proceedings, Article 29(5) states that:

Articles 29(1)–29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the "Emergency Arbitrator Provisions") shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories.

According to commentators20 and the Commission Report,21 Article 29(5) has the purpose and effect of excluding investment arbitration from the scope of the emergency arbitration provisions, as the investor and the host state may not be considered as signatories of the arbitration agreement. However, such exclusion is not expressed in clear terms by the language of the provision.22 It could be argued that the signature by the host state of the bilateral investment treaty or other instrument containing the offer to protected investors to arbitrate disputes under the ICC Rules, and the signature by the investor of the request for arbitration or other document containing its acceptance of this offer, may be sufficient to satisfy the signatory requirement of Article 29(5).23

Another issue potentially affecting the applicability of the emergency arbitration provisions to investor-state cases is the timing of the parties’ consent in light of Article 29(6) of the Rules, which, as amended in 2017, provides that the emergency arbitration provisions shall not apply if ‘the arbitration agreement under the Rules was concluded before 1 January 2012’. Most bilateral investment treaties currently in force predate the entry into force of the 2012 Rules, but investors accept the state’s offer of arbitration only upon filing an application for emergency measures, as is common practice in investor-state arbitration. On the one hand, it may be argued that the parties’ consent to arbitrate under the ICC Rules (equivalent to the ‘arbitration agreement’ to which Article 29(6)(a) refers) is formed only when the investor accepts the host state’s offer. On the other hand, it may be considered that when the host state offered ICC arbitration to investors of the other state prior to 2012, it could not have anticipated the introduction of the emergency arbitration provisions in the ICC Rules.

These issues arose in one of the ICC emergency arbitration cases filed in 2014, where an investor applied for the immediate suspension of a decree ordering the sale of the investor’s assets in a bank, invoking a bilateral investment treaty concluded in 2001 that entered into force in 2003. The President of the ICC Court decided that the emergency arbitration provisions would not apply. It may be noted that, in this case, the arbitral tribunal was then constituted and rendered a partial award on the claimant’s application in a short time frame and that, to further speed up the process, the draft partial award was examined and approved at the first available committee meeting of the Court, and not at a plenary session, as is common practice for cases involving states and state entities. This demonstrates that, despite the unavailability of emergency arbitration, both the Court and the arbitral tribunals can find practical solutions to deal with cases in a swift manner and respond to the parties’ need for urgent relief.

By way of comparison, the rules of the Arbitration Institute at the Stockholm Chamber of Commerce (‘SCC’) – which introduced emergency arbitration in its 2010 rules and regularly administers investment arbitrations – make clear that the SCC rules applicable at the date of the request for arbitration apply, including emergency arbitration.24 This has led to a number of emergency proceedings based on state <page_30> consent that has been expressed in an investment treaty.25 None of the other three sets of arbitration rules known to have been applied to treaty-based disputes allows for emergency arbitration.26

ICC as appointing authority in investor-state cases

As mentioned earlier, in addition to administering cases under its own Rules, the Court or other ICC organ or body has on several occasions been requested to act in cases not administered under the ICC Rules.

In the vast majority of these cases its role has consisted in acting as appointing authority,27 which includes deciding on challenges against arbitrators. However, ICC has sometimes been asked to carry out other functions, such as administering advances on the costs of the arbitration. Most such cases were governed by the UNCITRAL Arbitration Rules.

At the time of writing (March 2017), the Court had acted in 15 such cases, pursuant either to a provision in the relevant treaty28 or to a designation by the Secretary-General of the Permanent Court of Arbitration acting under the UNCITRAL Arbitration Rules.

ICC’s activity in this capacity is regulated by the Rules of ICC as Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings (‘Appointing Authority Rules’). These rules, which came into force on 1 January 2004, are currently being revised in order to clarify the range of services offered by ICC and to allow for services to be provided in arbitrations conducted under the rules of other arbitral institutions. The Appointing Authority Rules clarify that where ICC, or an authority within ICC, is empowered or requested to act as appointing authority, that function shall be carried out by the Court, and that, to fulfil this function, the Court shall constitute a ‘Special Committee’ of three members. If the Special Committee cannot reach a unanimous decision, the matter may be referred to a Plenary Session sitting as a ‘Special Plenary Session’. Decisions on challenges pursuant to the Appointing Authority Rules are systematically made at a Special Plenary Session. In practice, decisions are made by the Court at one of its weekly Committee meetings or, in the case of challenges, at one of its monthly Plenary Sessions.29

Concluding remarks

In recent years, the variety of fora available for resolving investor-state disputes has increased. The ICC Arbitration Rules are sufficiently flexible to respond to the specific needs of commercial arbitrations and investment arbitrations alike, and the adoption of a separate set of rules to administer the latter appears unnecessary. Nonetheless, the Court has developed specific practices to administer investment cases and to deal with the specific circumstances that typically arise in them, particularly in the areas covered in this article, such as fixing the place of arbitration, the preliminary screening of jurisdictional objections, the availability of emergency arbitration, and the constitution of arbitral tribunals.

Although not comparable to ICC’s commercial arbitration caseload, the number of investor-state cases administered by the ICC Court, or in which the Court acts as appointing authority, is substantial and growing. The core characteristics of the ICC Arbitration Rules, the Court’s longstanding experience in administering the most diverse kinds of disputes, and the specific practices developed by it in dealing with investment cases make ICC arbitration an increasingly attractive method for the resolution of investor-state disputes at a time when the future of investment arbitration appears uncertain.

1
An extensive study by the OECD showed that between 10% and 20% of bilateral investment treaties concluded between 1988 and 2010 allowed for ICC arbitration, making ICC the third most common forum after ICSID and UNCITRAL. See J. Pohl, K. Mashigo & A. Nohen, ‘Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey’, OECD Working Papers on International Investment, 2012/02, OECD Publishing, p. 21, available at http://www.oecd-ilibrary.org/finance-and-investment/dispute-settlement-provisions-in-international-investment-agreements_5k8xb71nf628-en (last accessed 15 Mar. 2017).

2
This figure includes not only cases in which an award was rendered, but also cases that were discontinued for various reasons or are still pending at the time of publication.

3
Of the 32 treaty cases under the ICC Rules, 24 were initiated in 2012 or later.

4
See e.g. Article 1(2), which refers to the Court’s function of administering the resolution of disputes in accordance with its Rules. Unlike Article 1(1) of the 1998 ICC Rules, this provision does not limit the scope of the Court’s powers to ‘business’ disputes, which allows them to encompass investor-state disputes, too. See also Article 21(2), where the words ‘if any’ have been added after ‘contract’ to cover situations in which there is no contract underlying the dispute, as is typically the case in investor-state cases. Other relevant changes introduced in the 2012 revision, particularly with respect to the appointment of arbitrators and emergency arbitration, are discussed later in this article.

5
ICC Commission Report, States, State Entities and ICC Arbitration, 2012 (‘Commission Report’). Available at http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Arbitration-Commission-Report-on-Arbitration-Involving-States-and-State-Entities-under-the-ICC-Rules-of-Arbitration/.

6
A reference to the place of arbitration is contained in the trilateral North American Free Trade Agreement (NAFTA), which provides that the place of arbitration must be in a treaty state that is a party to the New York Convention.

7
There are two known examples of challenge proceedings against treaty-based ICC awards, both of which were brought in the Paris Court of Appeal due to Paris being the place of arbitration: Kaliningrad Region v Lithuania, Paris Cour d’appel, 09/19535 (award upheld by the court); Peter and Kristof de Sutter and others v Madagascar, Paris Cour d’appel, 14/19164 (award set aside by the court).

8
As in Case No. 20815 and Case No. 19255, for example. It is general Court practice to designate the city mentioned in the clause if at least one party asserts that it should be the place of arbitration; see J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration: A Practical Commentary on the 2012 ICC Rules of Arbitration from the Secretariat of the ICC International Court of Arbitration, §§ 3-681–3-683.

9
Ibid., para 3-686.

10
See e.g. Article 16(2) of the LCIA Rules and Article 2(1) of the VIAC Rules, providing for London and Vienna respectively as the default seat absent party agreement.

11
See Article 18(2) of the ICC Rules: ‘The arbitral tribunal may, after consultation with the parties, conduct hearings and meetings at any location it considers appropriate, unless otherwise agreed by the parties.’

12
See Article 6(3) of the ICC Rules. Under Article 6(2) of the 1998 ICC Rules, any jurisdictional objection triggered the preliminary screening by the Court.

13
E.g. Case No. 20815 and Case No. 21537. The observation, in the Commission Report that ‘the Secretary General would be more likely to exercise his/her discretion and refer this matter to the Court’ with respect to states or state entities does not seem to apply to investor-state cases.

14
See Article 12(2) of the ICC Rules.

15
The Commission Report indicates that it is the Court’s practice to submit disputes involving states and state entities (not only investor-state cases) to three arbitrators, and that an exception to this practice may occur when the state or state entity itself specifically requests that the dispute be submitted to a sole arbitrator (§§ 62 and 64).

16
In Case No. 21927, discussed above, the parties agreed on a sole arbitrator, who was never appointed as the Court decided that the case could not proceed.

17
The previous wording referred to cases in which at least one of the parties ‘is a state or claims to be a state entity’. The amendment is intended to cover situations in which the party’s status is not invoked by the party itself, but is established independently by the ICC Court.

18
Article 13(3) of the ICC Rules.

19
Article 29(1) of the ICC Rules.

20
P. Mayer & E. Silva Romero, ‘Le nouveau Règlement d’arbitrage de la Chambre de Commerce Internationale (CCI)’, Revue de l’arbitrage 2011 at 919; N. Voser & C. Boog, ‘ICC Emergency Arbitrator Proceedings: An Overview’, in Interim, Conservatory and Emergency Measures in ICC Arbitration, ICC International Court of Arbitration Bulletin, 2011 Special Supplement, at 83–84; N. Voser, ‘Overview of the Most Important Changes in the Revised ICC Rules’, ASA Bulletin 2011 at 817; C. Aschauer, ‘Use of the ICC Emergency Arbitrator to Protect the Arbitral Proceedings’ (2012) 23:2 ICC International Court of Arbitration Bulletin at 7.

21
Commission Report, §§ 51 and 52: ‘One of the purposes of Article 29(5) of the 2012 ICC Rules was to exclude investment arbitration from the scope of emergency arbitrator proceedings. … When drafting this provision, the ICC considered that the investor and the host state are not signatories of the arbitration agreement formed by the state’s offer contained in the BIT and the investor’s acceptance contained in its notice of claim or request for arbitration.’

22
A. Carlevaris, ‘Preliminary Matters: Objections, Bi-furcation, Request for Provisional Measures’, in C Giorgetti (ed.), Litigating International Investment Disputes, Leiden, Boston, 2014, at 204.

23
P. Pinsolle, ‘A Call to Open the ICC Emergency Arbitrator Procedure to Investment Treaty Cases’, in A. Carlevaris, L. Lévy, A. Mourre & E.A. Schwartz (eds), International Arbitration under Review, Essays in Honour of John Beechey, Paris, 2005, 307.

24
The preamble to the SCC Rules reads in its entirety: ‘Under any arbitration agreement referring to the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the "Arbitration Rules") the parties shall be deemed to have agreed that the following rules, or such amended rules, in force on the date of the commencement of the arbitration, or the filing of an application for the appointment of an Emergency Arbitrator, shall be applied unless otherwise agreed by the parties.’

25
TSIKInvest LLC v Moldova (SCC EA No 2014/053); Griffin Group v Poland (SCC EA No. 2014/183); JKX Oil & Gas, Poltava Gas, Poltava Petroleum Company v Ukraine; Evrobalt LLC v Moldova (SCC EA No. 2016/82); Kompozit LLC v Moldova (SCC EA No. 2016/95). For a discussion of these cases, see K. Swee Yen, ‘The Use of Emergency Arbitrators in Investment Treaty Arbitration’ (2016) 31:3 ICSID Review 534–548.

26
UNCITRAL Arbitration Rules, ICSID Convention (with its associated arbitration rules) and ICSID Additional Facility Rules.

27
The sole exception is a pending case, where the Court has been requested to administer the advance on the costs of the arbitration.

28
In an ICSID case, currently pending, the treaty provides that the ICC President shall make ‘the required appointments’. In another, ad hoc case, the treaty provides for the President of the Court to make the ‘necessary appointments’.

29
See Article 1(3) of the Appointing Authority Rules.