top of page

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, 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.

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:

  • 3 – 21 July 2023 – 56th Commission Session, Vienna. As per the provisional agenda, it is expected that the Commission will consider the draft codes of conduct for arbitrators and judges in international investment dispute resolution and commentary, together with the draft provisions on mediation, and the draft guidelines on investment mediation.

  • 9 – 13 October 2023 – 46th session of Working Group III, Vienna. Based on the provisional agenda for the 56th Commission Session, it is expected that the next Working Group III session will further consider the draft provisions on mediation, the draft guidelines on investment mediation, a draft legislative guide on investment dispute prevention and mitigation, and possible reform to investor-State dispute settlement to include early dismissal and preliminary determination.

As above, the next meeting of the Commission will be the 56th Commission Session in July 2023. An advance copy of the provisional agenda which contains links to the draft texts being considered by the Commission is available here.


At the most Working Group III session, the 45th session hosted in New York from 27-31 March 2023, the Working Group completed its work on the draft codes of conduct for arbitrators and judges in investment dispute resolution, and considered draft provisions on mediation, draft guidelines on investment mediation, a draft legislative guide on investment dispute prevention and mitigation, and possible reform to investor-State dispute settlement to include early dismissal and preliminary determination. A copy of the report for this session is available here.

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

  • 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

Expert Advisory Committee
Reports of meetings

Resources

UNCCA resources

UNCCA is due to host a seminar on recent developments and future directions for investor-State dispute settlement reform in Australia and abroad on 11 October 2023, as part of the Australian Arbitration Week. More information is available here.

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.

 

UNCITRAL reports

The official UNCITRAL reports from recent sessions are available here.

Further information

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 July 2023.
 

bottom of page