The ICC International Court of Arbitration has unique experience in dealing with state and investment arbitrations. More than 15% of all ICC arbitrations have a state or state entity as a party. These arbitrations cover investment and commercial disputes, are often large in monetary value, and involve parties from all over the world. Many BITS make express reference to, or allow for, arbitration under the ICC Rules of Arbitration (ICC Rules). Thirty-eight BIT arbitrations have been, or are currently being, conducted under the ICC Rules.

Although foreign investors prefer not to contemplate disputes with their host countries, if such a dispute occurs, international arbitration provides a reliable, independent and efficient means for resolving such disputes. The ICC Rules have proven to be among the most popular international arbitration rules used today, with over 23,000 arbitrations having so far been administered by the ICC. Founded in 1923, the ICC International Court of Arbitration is the world’s leading arbitral institution. What has made ICC arbitration highly attractive to users in the commercial context, equally applies to its use in disputes involving states and state entities, whether commercial or through BITs.

One of the most important benefits of ICC arbitration is the Court’s scrutiny of awards. No ICC award can be notified to the parties if it has not been previously approved by the Court. It is a rigorous and demanding process, whereby the draft award is first controlled by the team in charge of the case, then by the leadership of the Secretariat, before being submitted to the Court. Awards involving states are always submitted to the Plenary Session of the Court, and they are always the subject of a detailed report by an experienced Court member. The Court may impose changes as to the form of the award and draw the tribunal’s attention to questions of substance. Very rarely is an award approved without any comment made as to its form or substance. If the award does not receive the Court’s approval, it is sent back to the arbitral tribunal, and scrutinised at a further session of the Court. In the vast majority of cases where the award is approved, the comments made by the Court are incorporated into the tribunal’s award. This quality control process allows not only for the Tribunal’s correction of errors of fact or law, but also for spotting decisions that go beyond the parties’ claims or that fail to address all claims. This process also draws the arbitrators’ attention to parts of the reasoning that may be unclear, contradictory, that deal with issues that the parties did not properly address, or on the contrary fail to address arguments raised by the parties. It is a process that greatly contributes to the quality of the award and to reducing the likelihood that the award be annulled or denied recognition. This signature service of the Court is of immense value in investor-state cases and it greatly increases confidence in the ICC arbitral process.

The Court also places special emphasis on the need for all participants in the arbitration process to abide by the highest standards of ethics. New guidance has recently been approved by the Court to ensure that the disclosure of conflicts of interest by arbitrators is made in a transparent and forthcoming manner. The Court has also endorsed the IBA Guidelines on Party Representation in International Arbitration, which parties and arbitrators are encouraged to adopt.

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The Court has also adopted policies to increase the level of transparency of ICC arbitrations. Since 2016, the composition of each ICC arbitral tribunal is made public and published on the Court’s website. The Court also provides, upon the request of any party, reasons for its decisions, not only on challenges, but also on other important decisions, such as its jurisdictional decisions and consolidations. In this regard, it is noteworthy that the ICC Rules are flexible enough to allow for the adoption by the parties and arbitral tribunals of transparency rules, such as those of the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration and the Mauritius Convention on Transparency. In particular, parties and arbitrators may agree on the publication of submissions and awards, as well as the publication of any decision made by the institution, the opening of any hearing to the public, and the hearing of non- parties.