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WORKING GROUP III: INVESTOR-STATE DISPUTE SETTLEMENT REFORM

The Mandate

Mandate

 

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. 

Meeting Frequency

 

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 Mandate

Current projects

Reform options

The reform options being considered by the Working Group include:

  • dispute prevention and mitigation and means of alternative dispute resolution;

  • 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.

Work plan

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:

  • 15 May 2022 - Comments due on initial draft Appellate mechanism

  • 27 June – 15 July 2022 - 55th Commission Session, New York, which may include  an update on the work programme of the Commission, in particular possible future work in dispute settlement

  • 30 June 2022 - Comments due on initial draft on Pertinent elements of selected permanent international courts and tribunals

  • 5 – 16 Sept 2022 - 43rd Session of Working Group III, Vienna

The next meeting of the Working Group will be the 43rd session in September 2022. At this session, the Working Group is expected to consider topics on ISDS reform, which include:

 

  • consideration of a multilateral mechanism for the selection and appointment of ISDS tribunal members; and

  • a revised version of the draft Code of Conduct for adjudicators, with a view to submitting the Code and commentary to the Commission for its consideration at the fifty-sixth session in 2023.

Current projects

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

  • Nick Gallus, Special Counsel, LK Law

  • 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, Allens

  • 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

Expert Advisory Committee
Reports of meetings

Reports of meetings

UNCITRAL reports

The official UNCITRAL reports from recent sessions are available here.

UNCCA resources

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:

Further information

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 May 2022.
 

Further information
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