Frivolous Claims in International Adjudication: A Study of ICSID Rule 41(5) and of Procedures of Other Courts and Tribunals to Dismiss Claims Summarily

Abstract

The 2006 amendments to the ICSID Arbitration Rules have introduced a new provision within the ICSID framework—Rule 41(5)—which allows a party to raise, in limine limis, an objection that a claim is ‘manifestly without legal merit’. Such a rule, intended to root out frivolous claims at the outset of the proceedings, knows parallels and antecedents in other dispute settlement fora. This article thus first provides an overview of procedures to summarily dismiss frivolous claims in both individual-state dispute settlement mechanisms other than investment arbitration (such as human rights courts) and state-to-state dispute settlement mechanisms (the ICJ and ITLOS). It turns then to the examination of the investment arbitration context. With regard to the new ICSID Rule 41(5), the article analyses its first 5 years of existence through the lens of the application given by arbitral practice. Four arbitral tribunals has so far tackled some of the legal challenges which Rule 41(5) poses, showing considerable consistency, but also certain differences in approach. The new ICSID Rule is then compared with an alternative procedure for the summary dismissal of frivolous claims contained in the latest investment treaties entered into by the United States, including CAFTA, which has also been recently tested in practice. Finally, the article explores possible prospects of utilizing summary dismissal procedures in investor-state arbitrations conducted under non-ICSID rules.