For information only - not an official document
21 October 2019
Successful conclusion of the UNCITRAL meeting in Vienna on the reform of investor-State dispute settlement (ISDS)
Around 100 State delegations and 70 international organizations agreed to a reform agenda for ISDS and started working on the reform phase
VIENNA, 21 October 2019 (UN Information Service) - Working Group III, entrusted by the United Nations Commission on International Trade Law (UNCITRAL) with a broad, three-phase mandate on the possible reform of investor-State dispute settlement (ISDS), met in Vienna last week to discuss those reforms.
Some 400 delegates, including around 100 States and 70 observer organizations, representing diverse stakeholders, participated in this government-led process to agree on a reform agenda based on contributions by States and other stakeholders, and to commence work on the development of multiple relevant solutions for ISDS reform.
At its session last week, in line with its agreed reform agenda, the Working Group commenced its work to provide guidelines for the preparation of instruments for a code of conduct for arbitrators and adjudicators, the regulation of third-party funding of investment disputes and the establishment of an advisory centre for parties involved in ISDS cases.
At its next session in January, the Working Group will work on mechanisms for a stand-alone review or appellate mechanism, a standing multilateral investment court with a standing cadre of judges and the selection and appointment of arbitrators and adjudicators.
Other topics including dispute prevention and mitigation, treaty interpretation by State parties, security for costs, the means to address frivolous claims, multiple proceedings, including reflective loss and shareholders' claims, as well as the preparation of a multilateral instrument for the implementation of reform solutions, are on the agenda of the Working Group at its session in New York in the spring. The Working Group was also asked to work on the calculation of damages in investment arbitration.
A report summarizing the deliberations of the week as well as digital recordings of the proceedings will be available on the UNCITRAL website in the coming days at https://uncitral.un.org/en/working_groups/3/investor-state.
The Working Group looks forward to ongoing and constructive participation as it moves forward with further consideration of ISDS reforms at its next session, in Vienna, in January 2020.
Support for travel of representatives from developing States to sessions of the Working Group
In recognition of the importance of the topic under consideration, and of the significance of inclusive and diverse representation in UNCITRAL sessions, the European Union, the German Federal Ministry for Economic Cooperation and Development (BMZ) and the Swiss Agency for Development and Cooperation (SDC) have provided financial assistance to support the participation of developing States in sessions of the Working Group.
Responding to concerns of a lack of transparency in ISDS, UNCITRAL adopted Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules) in 2013, to provide a procedural framework for making information available to the public on investment arbitration cases arising under relevant investment treaties concluded after 1 April 2014. The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, which came into force in October 2017, provides a mechanism for the application of the Transparency Rules to arbitration cases arising under the nearly 3,000 investment treaties concluded before 1 April 2014. During the 50th annual session of UNCITRAL, in July 2017, the Commission requested its Working Group III to first identify concerns regarding ISDS, second to consider whether reform was desirable in light of identified concerns and, if so, to thirdly develop relevant solutions to be recommended to the Commission.
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The United Nations Commission on International Trade Law (UNCITRAL) is the core legal body of the United Nations system in the field of international trade law. Its mandate is to remove legal obstacles to international trade by progressively modernizing and harmonizing trade law. It prepares legal texts in a number of key areas such as international commercial dispute settlement, electronic commerce, insolvency, international payments, sale of goods, transport law, procurement and infrastructure development. UNCITRAL also provides technical assistance to law reform activities, including assisting Member States to review and assess their law reform needs and to draft the legislation required to implement UNCITRAL texts. The UNCITRAL Secretariat is located in Vienna, Austria, and maintains a website at uncitral.un.org.
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