1. UNCITRAL Working Group III on Investor-State Dispute Settlement Reform
High Level Event on the Reform of Investment Protection Brussels, 22 November 2018
UNCITRAL Working Group III on Investor-State Dispute Settlement Reform
Anna Joubin-Bret
Director of International Trade Law Division
Secretary of UNCITRAL

2. UNCITRAL Dispute Settlement Instruments
1958
Convention on the Recognition and Enforcement of Foreign Arbitral Awards the "New York" Convention
1976
UNCITRAL Arbitration Rules (revised in 2010)
1980
UNCITRAL Conciliation Rules
1985
UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)
1996
UNCITRAL Notes on Organizing Arbitral Proceedings (updated 2016)
2002
UNCITRAL Model Law on International Commercial Conciliation
2012
Recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under the UNCITRAL Arbitration Rules (as revised in 2010)
2013
UNCITRAL Rules on Transparency in Treaty- based investor-State Arbitration
2014
UN Convention on Transparency in Treaty-based Investor-State Arbitration
2018
Finalization of a new instrument on enforcement of intern. commercial settlement agreements resulting from conciliation 2

3. Growing criticism of current ISDS
UNCITRAL work on ISDS Reform: starting point
Growing criticism of current ISDS
Lack of accountability and legitimacy
Lack of reviewing mechanisms
Conduct of arbitration: lack of transparency, lack of uniformity, length and costs of the proceedings
Arbitrators: methods of appointment, impartiality and independence

4. UNCITRAL work on ISDS Reform: terms of reference
“The Commission entrusted Working Group III with a broad mandate to work on the possible reform of investor-State dispute settlement (ISDS). In line with the UNCITRAL process, Working Group III would, in discharging that mandate, ensure that the deliberations, while benefiting from the widest possible breadth of available expertise from all stakeholders, would be government-led with high-level input from all governments, consensus-based and be fully transparent….

5. UNCITRAL work on ISDS Reform: terms of reference
… The Working Group would proceed to : first, identify and consider concerns regarding ISDS; second, consider whether reform was desirable in light of any identified concerns; and third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission”

6. Appointment of Arbitrators
UNCITRAL work on ISDS Reform: matters considered by Working Group III at its 34th and 35th sessions
Costs and duration
Consistency
Appointment of Arbitrators
Ethics

7. Matters considered by Working Group III at its 34th, 35th and 36th sessions: costs and duration
Increase in recent years
Unmeritorious claims
Lack of mechanism for counter-claims
Access by SMEs
No security for costs
Need to be compared to costs and duration of other dispute settlement methods (domestic courts, international comparators – ICJ, WTO, ECHR)
80-90% – legal and experts fees

8. Matters considered by Working Group III at its 34th, 35th and 36th sessions: consistency
Divergent interpretations (substantive standards; jurisdiction; admissibility; procedural inconsistency
Lack of a mechanism to address multiple proceedings
Difficulty to address inconsistency and incorrectness
Existing tools and techniques (non-disputing party submissions, joint interpretative statements)
Different context/object/ purpose of the treaties – different interpretations

9. Matters considered by Working Group III at its 34th, 35th and 36th sessions: appointment of arbitrators
Party appointed (concerns about competence and qualification)
Standards of independence and impartiality
Same individuals repeatedly appointed, double hatting
Inadequate challenge mechanisms
Role of appointing authorities
Nationality and gender diversity
Party appointment as a key feature of ISDS
Administering institutions capable of correcting deficiencies
Diversity should not compromise qualification and expertise

10. … to further-reaching reforms
Matters considered by Working Group III at its 34th, 35th and 36th sessions: alternatives for solutions mentioned by States (A/CN.9/918)
From adjustments ….
… to further-reaching reforms

11. Thank you for your attention!
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