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Sketching the future procedural reforms of investor-State arbitration

The United Nations Commission on International Trade Law (“UNCITRAL”) and the International Centre for Settlement of Investment Disputes (“ICSID”), international institutions playing a major role in the field of investment arbitration, are currently reviewing possible reforms of the investor-State arbitration regime. The procedural [1] reforms envisaged aim at modernising the investment arbitration system and at responding to the main current criticisms raised by the stakeholders in the field as well as the civil society, such as the fact that proceedings are increasingly costly and lengthy, and effective control of arbitrators’ potential conflict of interest difficult.

Following its initiative regarding enhancing transparency in investor-State arbitration, [2] UNCITRAL decided to further explore potential areas for reform in investment arbitration. In its 50th session held in July 2017, the UNCITRAL Commission mandated its Working Group III to recommend potential reforms of the investor-State dispute settlement regime.  [3] Accordingly, the Working Group III will begin discussions at its 34th session in Vienna at the end of November 2017, which will be Government-led while benefiting from the expertise of all other stakeholders (especially international organizations and experienced NGOs).

In order to assist the Working Group, the UNCITRAL Secretariat issued a note on 18 September 2017 [4] that outlined the current issues of investor-State arbitration as well as current trends. This note gives a glance at the issues that would probably be considered by the Working Group in November, notably increasingly lengthy and costly proceedings, as well as inconsistent outcomes of multiple proceedings when such proceedings are all initiated against the same State and arise out of the same measure that has had an impact on several investors. The Secretariat invited the Working Group “to consider whether the limited corrective mechanisms […] currently available are sufficient to ensure coherence and consistency of awards”. [5] The Secretariat also pointed out the possibility of establishing alternative methods for appointment of, and introducing a code of conduct for, arbitrators.

In the same vein, ICSID is currently considering the review of the ICSID Arbitration Rules. The ICSID Secretariat launched consultations with member States and the public in October 2016 and January 2017 that identified 16 potential areas for amendment.[6] These include, most importantly, a code of conduct for arbitrators, stricter time frames for issuance of awards, an express rule on security for costs and clarification of the cost-allocation mechanism.

The International Arbitration Law blog will be following the relevant developments closely!

Author : V. K. and A.F.P., LLB

[1]    Substantive reforms, i.e. reforms regarding the standards of protection of foreign investors and investments, necessitate modifications of the applicable bilateral or multilateral investment protection treaties, which are the result of specific – and often lengthy – negotiations between States.

[2]   The 2013 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration provide for the publicity of information relevant to investment arbitration proceedings, such as decisions and awards and the parties’ pleadings, and grant, under certain conditions, public access to hearings. The UNCITRAL Rules on Transparency will apply to BITs concluded after 1 April 2014. The Mauritius Convention, another UNCITRAL initiative, is an instrument by which States consent to the application of the UNCITRAL Transparency rules to investment treaties concluded before 1 April 2014. 17 states have signed the Mauritius Convention already, but only three, Mauritius, Canada and Switzerland, have ratified it. The Convention entered into force on 18 October 2017.

[3] Official Records of the General Assembly, Seventy-second Session, Supplement No 17, A/72/17, ¶ 264, available at http://www.uncitral.org/pdf/english/commissionsessions/unc-50/A-72-17-E.pdf

[4]  “Possible reform of investor-State dispute settlement (ISDS)”, note by the Secretariat of the United Nations Commission on International Trade Law, 18 September 2017, A/CN.9/WG.III/WP.142, available at http://www.uncitral.org/pdf/english/workinggroups/wg_3/142-e.pdf

[5]     “Possible reform of investor-State dispute settlement (ISDS)”, note by the Secretariat of the United Nations Commission on International Trade Law, 18 September 2017, A/CN.9/WG.III/WP.142, ¶ 38.

[6]  “The ICSID Rules Amendment Process”, ICSID 2017, available at https://icsid.worldbank.org/en/Documents/about/ICSID Rules Amendment Process-ENG.pdf