MJIEL Vol 9 Issue 1 2012 - Article 2

ABSTRACT: International investment arbitration has grown substantially, but has also increasingly been the subject of criticism, inter alia because arbitration conducted under the auspices of ICSID did not provide for any mechanism to monitor claims that are manifestly without legal merit. In 2006, ICSID introduced Rule 41(5) in its Arbitration Rules in order to counter the submission of claims which are patently unmeritorious. Although the objective of Rule 41 (5) is not explicitly aimed at targeting claims that constitute an ‘abuse of process’, it is likely that the rule will prevent, or at least offer an adequate procedure to assess the submission of such claims at an early stage. This article analyses the rationale and drafting history of Rule 41(5), the four recent decisions which have applied the new rule, and the role of the rule in preventing abuses of international arbitral procedures.

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