WORKING GROUP III: INVESTOR-STATE DISPUTE SETTLEMENT REFORM
Working Group III has been entrusted working on the possible reform of investor-State dispute settlement (ISDS) since July 2017. The Working Group is tasked with identifying concerns regarding ISDS, considering whether reform is desirable and, if so, developing recommendations.
The three topics have been identified as "phases" of Working Group III's mandate and process. Working Group III concluded its sessions in respect of the first two "phases" in November 2018. It is now focused on the development of new ISDS mechanisms and approaches.
It has recently been agreed that Working Group III will hold four one-week sessions per year from 2022 to 2024, which will entail two additional sessions per year compared to the usual pattern. There will also be increased use of informal meetings during the inter-sessional periods, such as inter-sessional meetings, drafting groups, joint work with other organisations, as well as supporting webinars.
UNCCA representatives have attended some of the recent Working Group sessions on these topics, either in New York, Vienna or online.
The reform options being considered by the Working Group include:
dispute prevention and mitigation and means of alternative dispute resolution, including mediation;
the selection and appointment of ISDS tribunal members;
a code of conduct for adjudicators;
procedural rules reform, including strengthening of dispute settlement mechanisms other than arbitration, exhaustion of local remedies, procedure to address frivolous claims, and procedures for multiple proceedings, reflective loss and counterclaims by respondent States;
the establishment of a multilateral advisory centre;
an appellate mechanism;
a multilateral permanent investment court; and
a multilateral instrument to implement reforms.
The UNCITRAL tabular overview of the reform options is available here.
The current work plan for Working Group III is set out in annexure A of the report located here. It sets out a plan for work on the above reform 'streams' until 2026.
The status of work for WG III, including a list of forthcoming draft frameworks for certain reform options, is set out here.
Upcoming meetings and milestones
An overview of the key upcoming dates for Working Group III is set out below:
27 – 31 March 2023 – 45th session of Working Group III, New York. It is expected that Working Group III will continue to deliberate articles in the draft code of conduct for arbitrators, including on the topics of mediation and dispute prevention and mitigation.
3 – 21 July 2023 – 56th Commission Session, Vienna. As per the provisional agenda for the 45th session of Working Group III, it is expected that Working Group III will present a guidance text on early dismissal and preliminary determination to the Commission, which may include an update on the work programme of the Commission, in particular possible future work in dispute settlement.
As above, the next meeting of the Working Group will be the 45th session in March 2023. An advance copy of the provisional agenda is available here.
At the most recent Working Group III session, the 44th session hosed in Vienna from 23 – 27 January 2023, the Working Group continued its consideration of the codes of conduct for arbitrators and judges. A copy of the report of the work of the most recent Working Group III session, the 44th session, is available here.
UNCCA - Expert Advisory Committee
The activities of WG III are monitored by the WG III Expert Advisory Committee of UNCCA. The Committee Chair or other members of the committee can be contacted through UNCCA.
The WGIII Expert Advisory Committee of UNCCA is comprised of these experienced Australian lawyers and academics:
Daniel Allman, Senior Associate, Norton Rose Fulbright Australia
Gitanjali Bajaj, Partner and Co-Head for International Arbitration Asia-Pacific, DLA Piper
Chester Brown, Professor of International Law and International Arbitration, Sydney Law School and Barrister, UK and NSW Bar
Nathan Eastwood, Counsel, Clifford Chance
Jo Feldman, Special Counsel, Norton Rose Fulbright Australia
Danielle Forrester (Chair), Barrister, Banco Chambers, NSW Bar
William Ho, Senior Associate, Allens
Imogen Kenny, Solicitor, Herbert Smith Freehills
Judith Levine, Independent arbitrator, Levine Arbitration
Sam Luttrell, Partner, International Arbitration Group, Clifford Chance
Lucy Martinez, Independent arbitrator and counsel, Martinez Arbitration
Caitlin Moustaka, Associate, Boies Schiller Flexner
Joshua Paffey, Partner and Head of Arbitration, Corrs Chambers Westgarth
William Stone, Associate, Allens
Matyas Szuk, Lawyer, Ashurst
Boxun Yin, Barrister, Banco Chambers, NSW Bar
UNCCA and Allens hosted a seminar on Australia’s engagement in the ISDS reform process in November 2022 as part of the Australian Arbitration Week. One of the distinguished panellists, Professor Luke Nottage, drew on his presentation to panel and published an article titled Australia’s (Dis)Engagement with Investor-State Arbitration: A Sequel.
The official UNCITRAL reports from recent sessions are available here.
Reports of meetings
UNCCA has been closely involved in reporting on Working Group III's deliberations and progress in the past years, and has had the privilege of sending delegates to be part of the 37th and 38th sessions in 2019 and 2020 respectively.
Reports produced by UNCCA members are accessible below, and may be more reader-friendly than the official UNCITRAL reports, for example. Click the buttons to download the files:
As with other Working Groups, UNCITRAL WG III maintains an online record of its latest work and agendas for forthcoming meetings. The relevant information is available at Working Group III: Investor-State Dispute Settlement Reform.
This page was last updated in February 2023.