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Rule 41(5) of the ICSID Arbitration Rules essentially provides that an ICSID tribunal may dismiss a proceeding summarily if the respondent files an objection within 30 days of the constitution of the tribunal that the claim is “manifestly without legal merit”. In the five years since the introduction of the Rule in April 2006, four ICSID tribunals have considered the provision, with two decisions being handed down in December 2010. In this article, the authors describe the cases decided by these tribunals, and examine the way in which they have interpreted and applied Rule 41(5). The authors’ analysis highlights the large measure of consistency in the way that ICSID tribunals are handling objections under this provision, and sets out a useful and timely guide to counsel and arbitrators on the use of this procedure.

International investment law is in a state of evolution. With the advent of investor-State arbitration in the latter part of the twentieth century - and its exponential growth over the last decade - new levels of complexity, uncertainty and substantive expansion are emerging. States continue to enter into investment treaties and the number of investor-State arbitration claims continues to rise. At the same time, the various participants in investment treaty arbitration are faced with increasingly difficult issues concerning the fundamental character of the investment treaty regime, the role of the actors in international investment law, the new significance of procedure in the settlement of disputes and the emergence of cross-cutting issues. Bringing together established scholars and practitioners, as well as members of a new generation of international investment lawyers, this volume examines these developments and provides a balanced assessment of the challenges being faced in the field.

There are at least two ways in which legal scholarship might be approached. One might ask what the law on a particular subject is. This question invites doctrinal inquiry through an examination of authoritative sources internal to a legal system. Alternately, one might ask whether the law on a particular subject matter is desirable or just. This normative inquiry typically begins with a characterisation of what the law on a given subject is, but its primary objective is the evaluation of law by external, normative criteria. Arbitral tribunals charged with interpreting and applying international investment treaties (IITs) continue to grapple with legal concepts such as ‘fair and equitable treatment’ and ‘indirect expropriation’. Different tribunals have interpreted common treaty language in distinct ways; for example, in an earlier work I argue that tribunals have used six, identifiably distinct approaches to distinguish indirect expropriation from legitimate non-compensable regulation. It would be useful to be able to examine which interpretations were more desirable – in a normative sense – and which were inadvisable. This chapter presents a framework for normative evaluation of interpretations of the substantive protections of foreign investment contained in IITs.