Abstract

This article proposes to distinguish between two different types of finality in ICSID arbitration: pre-award finality, or the finality of interlocutory decisions, and post-award finality, or the finality of ICSID awards. Post-award finality is relatively well defined by the ICSID Convention through the principle of finality of awards, embedded in a self-contained system of review and shaped by a narrow definition of the term “award”. To the contrary, the ICSID Convention does not explicitly address pre-award finality. A case can be made for or against pre-award finality in ICSID arbitration. This article argues that, as long as there is no extended finality of interlocutory decisions, both positions lead to the same outcome: the arbitral tribunal has the power to review interlocutory decisions before the final award is rendered, but arbitrators should exercise this power only under limited circumstances. It proposes to apply the criteria for the revision of an international decision developed by the International Court of Justice either directly or by analogy to determine whether or not to reconsider interlocutory decisions.

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