Paper presented at the AfAA 2nd Annual International Arbitration Conference, 15th – 16th April 2021

I.                 Executive Summary

The United Nations Commission on International Trade Law (“UNCITRAL” or “Commission”) Working Group III is currently working on a comprehensive reform of the system for investor-State dispute settlement (“ISDS”). Delegations have begun by identifying concerns related to the lack of consistency, coherence, predictability and correctness of arbitral decisions, arbitrators and decision makers, and cost and duration of ISDS and assessed that these problems and shortfalls warrant reform. The Working Group is now in the phase of developing concrete reform solutions to address these concerns. Ideally, these reform solutions should be applicable to the more than 3,000 existing international investment agreements (“IIAs”) through a multilateral instrument and be presented in a flexible manner to ensure that States can adopt them in accordance with their priorities.[2] The African perspective plays a vital role in this reform process. For many African countries the current ISDS system raises important questions and their contributions to the UNCITRAL reform deliberations ensure that their interests and experience are taken into account in the development of a reformed ISDS system for the 21st century.[3]  

II.               Background

ISDS provides a forum for foreign investors to bring claims against the host State to international arbitration tribunals. It was created with the aim of enhancing confidence in the stability of the investment environment primarily in developing countries.[4] More than 3,000 IIAs are in force today.[5] In parallel to the increase in the global web of treaties, the number of ISDS cases brought by foreign investors against States under these IIAs increased and passed the 1,000 mark in 2020.[6]

The UNCITRAL reform process was initiated in 2017 in order to address strong and growing criticism by its stakeholders but also the general public of the ISDS system as it has been set up and operating in the last 60 years. Given the increase in the number of ISDS cases, the fact that they are brought against public measures and involve compensation to foreign investors with public funds, the ISDS system has come under broader public scrutiny. Criticism has emerged in particular relating to the methods of appointing arbitrators, and the impact of such methods on arbitrators’ independence and impartiality, the lack of coherence of a system based on decisions made by tribunals constituted to hear a specific case (also referred to as “ad hoc” tribunals), and the lack of corrective mechanisms (i.e., the lack of appropriate control or appellate mechanisms), the length and costs of the proceedings and the lack of transparency.[7] A first wave of criticism against ISDS had emerged in Latin America based on the perception of bias against States and gave rise to measures by Venezuela, Bolivia and Ecuador to distance themselves from the ISDS system.[8] Criticism in Europe crystallized around the negotiation of the Transatlantic Trade and Investment Partnership Agreement (TTIP). High profile cases such as Phillip Morris v. Australia[9] and Phillip Morris v. Uruguay[10] have also put the topic on a political level in other regions. Reforming ISDS has become in the last decade a recurrent topic in international conferences and academic work,[11] further highlighting the fact that stakeholders in the system had long discarded criticism as factually incorrect but had underestimated the role of perception.

III.             Mandate

In July 2017, UNCITRAL entrusted its Working Group III with the possible reform of the ISDS system against the background of its global reach and its experience with the negotiation of legal instruments in the field of international arbitration. It was the prevailing view that UNCITRAL provides an appropriate multilateral forum to discuss relevant issues in an inclusive and transparent manner, where the interests of not only States but also of other stakeholders could be considered. It was recalled that UNCITRAL has successfully undertaken a first step towards reform of ISDS with the preparation of standards on transparency.[12]

In 2014, the Rules on Transparency in Treaty-based Investor-State Arbitration (2014) (Rules on Transparency), UNCITRAL’s first instrument applicable specifically to ISDS, came into effect.[13] These rules address the need “to take account of the public interest involved in such [ISDS] arbitrations”.[14] The rules apply to ISDS proceedings initiated under the UNCITRAL Arbitration Rules pursuant to an IIA concluded on or after 1 April 2014 unless the parties to the agreement have agreed otherwise. The rules also apply if the IIA was concluded before 1 April 2014 if its parties have agreed to their application.

UNCITRAL further prepared a convention designed to facilitate the application of the Transparency Rules to the 3,000 or more investment treaties concluded before its entry into force, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the "Mauritius Convention on Transparency") . In essence, the Mauritius Convention on Transparency introduces the substantive transparency standards embodied in the Transparency Rules into the fragmented treaty-by-treaty regime by way of a single multilateral instrument.

After the adoption of these texts, the question was raised whether the Mauritius Convention on Transparency could provide a useful model for possible further reforms in the field of ISDS. It was noted that the then current circumstances posed a number of challenges to ISDS and proposals for reforms had been formulated by a number of organizations.[15] In 2016, a research paper elaborated by the Geneva Center for International Dispute Settlement (CIDS) presented to UNCITRAL formed the basis for further consultations on whether to undertake work on ISDS reform.[16] The report proposed to follow an approach similar to the one pursued in respect of the Transparency Rules and the Mauritius Convention on Transparency, that would allow reform of a complex and atomized system by way of a single multilateral instrument.

The Commission entrusted Working Group III with a broad mandate to work on the possible reform of ISDS. It was emphasized that the Working Group would, in line with the UNCITRAL process, ensure that the deliberations would be Government-led, include the widest possible breadth of available expertise from all stakeholders, with high-level input from all Governments, be consensus-based and fully transparent.[17]

IV.            Process

1.      A government-led process

The Commission had noted that ISDS involves a number of policy issues and highlighted that Governments should have a leading role in the reform process. They should be represented by officials with adequate expertise and experience in negotiating investment treaties or investment chapters in free trade agreements and with exposure to claims related to ISDS.[18] The reform deliberations in Working Group III have benefitted from high level input from government representatives in the working group sessions as well as in the form of over 50 written submissions contributing to the Working Group’s deliberations.[19]

2.      And inclusive process

The Working Group sessions have benefitted from significant and increasing participation by States, including developing and least developed countries. The Working Group session in January 2020 in Vienna, for example, was attended by more than 400 delegates representing 106 States, and 66 international organizations and non-governmental organizations.[20]

Considerable efforts are being made by the UNCITRAL Secretariat to reach out to all regions and countries to raise awareness and build capacity within delegations to effectively participate in the ISDS reform process. Three inter-sessional regional meetings were organized with the support of the Secretariat and hosted by the Governments of the Republic of Korea, the Dominican Republic and Guinea.[21]  Moreover, Hong Kong SAR, China hosted a virtual pre-intersessional meeting.[22]

Prior to Working Group sessions, the Columbia Centre for Sustainable Investment (CCSI) and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), with the assistance of the UNCITRAL Secretariat, regularly conduct training and briefing sessions on ISDS topics being discussed in the Working Group sessions in order to allow delegations to participate fully and effectively in the deliberations. The European Union, Switzerland, Germany and France have provided financial support to facilitate participation by delegations from developing and least developed countries.

3.      Broad inputs from all stakeholders

The deliberations of the Working Group are based on a broad range of available expertise from different stakeholders. More than 66 international inter-governmental organizations and non-governmental organizations with a variety of industry and policy expertise have participated in the Working Group sessions as observers and have organized numerous side events during as well as in-between the Working Group sessions.[23] An Academic Forum on ISDS and a Practitioners Group have been set up early in the process as informal groups aimed at making constructive contributions to the ongoing discussions by providing information from their research and experience.[24]

The UNCITRAL Secretariat has prepared working papers on identified issues and reform options in preparation of the Working Group sessions with reference to a broad range of published information on the topics.[25] Further, the Secretariat has organized a series of informal webinars, in which state representatives and leading experts shed light on reform topics with the aim to brainstorm on the reform options on the agenda and to advance the discussions.[26]

4.      Consensus-based process

Legislative work by UNCITRAL and its working groups is generally based on consensus.[27] In accordance with UNCITRAL practice, consensus does not require unanimity, but is instead based on a widely prevailing majority and the absence of a formal objection that would trigger a request for a vote. While the adoption of an instrument or a text by consensus does not give it any binding nature and States remain free to decide whether they want to adopt or apply it, it was stated that efforts should be made to consider all possible options so as to achieve the broadest consensus.[28]

5.      Transparency

The reform process is being conducted in a fully transparent manner. Each step of the deliberations is documented in the Working Group and Commission reports. The reports as well as the notes by the Secretariat and submissions by States are publicly available on the UNCITRAL web page in all six UN languages.[29] Moreover, audio recordings of the sessions are available on the UNCITRAL web page.[30]

6.      Coordination with parallel ISDS reform developments

Besides the UNCITRAL ISDS reform process, reform developments are also taking place in other fora. ICSID is updating its rules through the Rules and Regulations Amendment process particularly addressing concerns relating to cost and duration of ISDS processes.[31] As the reform topics partially overlap, as does their respective membership, the Secretariats of UNCITRAL and ICSID are cooperating closely in order to work towards harmonized solutions and avoid a further fragmentation of the legal framework for ISDS. Reform items such as third-party funding and the establishment of an appeal mechanism will require close cooperation with the ICSID Secretariat in order to develop an effective and coherent reform package. The UNCITRAL reform process generally takes into account the implications of the ISDS reform for the application of existing arbitration rules and administering institutions.

The OECD is hosting a forum that also touches upon certain ISDS related topics – the Freedom of Investment process. The UNCITRAL Secretariat particularly took into consideration the OECD’s work on the topics of shareholder claims and reflective loss in its preparatory work.[32]

Other reform developments are taking place on the level of IIAs. Most of the IIAs signed in recent years contain reform elements including the approaches of no ISDS, a standing ISDS tribunal, limited ISDS and improved ISDS procedure.[33] These developments are monitored and supported by the  United Nations Conference on Trade and Development (UNCTAD), which assists policymakers, government officials and other IIA stakeholders to reform IIAs with a view to making them more conducive to sustainable development and inclusive growth.[34]

The Secretariat also monitors developments such as the negotiation of the investment protocol of the African Continental Free Trade Area (AfCFTA) and the related provisions on dispute settlement. Participation by the African Union Secretariat in Working Group III and outreach efforts are underway to avoid a further fragmentation of the system and a coherent delivery on ISDS reform.

Lastly, while it is the objective to develop reform options in a coherent and consistent manner, an additional layer of consistency needs also be addressed. It was noted that a reform of ISDS needs to ensure that ISDS does not undermine the obligations of States to take action under the Sustainable Development Goals and against climate change under the Paris Agreement.[35]

7.      Progress during COVID-19 pandemic

In order to maintain the momentum of the reform discussion and to ensure that the process remains inclusive and transparent during COVID-19 pandemic which brought about all sorts of restrictions and challenges, the Secretariat has put together a programme of virtual events and other inter-sessional activities open to all delegations and stakeholders. This programme included informal briefings for delegations, a series of webinars on the reform options on the agenda and the Virtual Panel Series “UNCITRAL Texts and COVID-19 Response and Recovery”.

In October 2020 and February 2021 Working Group III held hybrid sessions on a video-conferencing platform, with interpretation into all six UN languages and the possibility of physical participation in Vienna. While this format is not necessarily conducive to substantive negotiations and to consensus, it provides a useful tool for exchanges of views among delegations and give instructions to the Secretariat.

V.              Reform Solutions

The Working Group completed the first two phases of the reform agenda based on a broad consensus on identified concerns with regard to the current ISDS system and the desirability of reform and has started with the preliminary consideration of a number of reform solutions as part of phase three of its mandate.[36]

1.      Development of reform solutions

In its session in October 2019, the Working Group has started with the preliminary consideration of the identified reform options.[37] These discussions were based on the States’ submissions and the working papers prepared by the UNCITRAL Secretariat; they also take into consideration input from relevant observers. The Working Group has given concrete feedback and directions, based on the working papers and usually requested that the Secretariat proceeds with the development of draft provisions.

At this stage, and without prejudice to the decisions of the Working Group, it is possible to categorize the reform options into two broad categories or streams. A first category, that we could call, procedural reform options would include those reform options that typically feature in the investment chapters of the more modern free trade agreements and address the ISDS procedure with a view to correct lack of clarity, shortcomings in the procedure that have over the years shown to need addressing by the States. Most of these reform options have already been addressed in one way or the other in existing treaties but would benefit from being consistently generalized for all ISDS disputes.

Under this category or stream, the Working Group has identified the following reform options:

·        Strengthening ADR mechanisms, including recourse to investor-State mediation

·        Developing structures and policies to strengthen and operationalize dispute prevention

·        Develop new methods for selection and appointment of ISDS arbitrators

·        Develop a code of conduct for adjudicators in ISDS

·        ISDS procedural rules reforms (including procedure to address frivolous claims; multiple proceedings; reflective loss; counterclaims; security for costs; third party funding; treaty interpretation, calculation of damages)

A second category regroups reform options of more structural or institutional nature. There reform options consist on setting-up new mechanisms and new institutions such as:

·        The establishment of a multilateral advisory centre patterned on the WTO-ACWL to assist States in ISDS procedures

·        Establishment of an appellate mechanism or a second instance appellate court to hear appeals against arbitral awards or first instance court judgements.

·        The establishment of a permanent investment court comprising a first and a second instance standing body.

The Working Group has also started discussing the delivery mechanism for the entire reform of ISDS, through a Multilateral instrument to host and implement the reforms.[38]

2.      Implementation of the reform: a multilateral framework based on the Mauritius Convention on Transparency model?

Implementation is a key question and has been addressed in numerous submissions by States.[39] As discussed early in the process, a potential model is the Mauritius Convention on Transparency. Such mechanism for ISDS reform implementation could consist of a convention designed to facilitate the application of a reform to the roughly 3,000 investment treaties concluded before the entry into force of such reform. It could introduce changes into the fragmented treaty-by-treaty regime by way of a single multilateral instrument and would constitute the vehicle by which the various reform options are proposed to States for implementation.[40]

Submissions by States further suggest the OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) as a model.[41] It is suggested that “blocks” of options could be considered as minimum standard and other blocks that States could opt-in or opt-out of.[42] A submission foresees the development of an instrument establishing a standing multilateral first instance and appellate court and an open approach to implement the reform option, allowing States to either use the standing mechanism as such, or limit its use, for instance, by applying it to State-to-State dispute settlement only, or by utilizing only the appellate mechanism.[43] Yet another submission proposes the elaboration of a “suite” approach, aimed at developing a menu of relevant solutions, of which States would incorporate one or more into their investment treaties, taking into account their own political and policy concerns and interests.[44]

It was also noted in the Working Group that a set of core provisions to which all States would sign on and a number of additional optional elements that could be opted in or out by any participating State would be a possible way forward but it still needs to find a way to balance flexibility for States with further fragmentation and inconsistency in the ISDS system.[45]

 

VI.            Spotlight on Role of and contributions by African States and experts

In accordance with its geographic representation, the 60 member States of UNCITRAL include 14 African States. Membership is currently held by Algeria, Burundi, Cameroon, Côte d’Ivoire, Ghana, Kenya, Lesotho, Libya, Mali, Mauritius, Nigeria, South Africa, Uganda and Zimbabwe. However, many more African States and observer organizations have actively participated in the Working Group III deliberations.

The Secretariat has received numerous written submissions from African States and experts on the reform solutions discussed in the Working Group.[46] Also, an inter-sessional regional meeting was hosted by the government of Guinea in Conakry in September 2019 to discuss issues related to ISDS reform and African experiences and priorities. This meeting was attended by government officials from 33 States.[47]

The Secretariat is in close contact with the Organization for the Harmonization of Business Law in Africa (OHADA) to coordinate work related to arbitration and mediation. Moreover, the Secretariat is making efforts to coordinate its work with the AfCFTA Secretariat, building on the close working relationship and collaboration, in particular with regard to transparency in ISDS, the operation of the UNCITRAL transparency registry as well as the work of Working Group III on ISDS reform. The Secretariat has organized webinars in French on the reform topics of a code of conduct, the selection and appointment of judges and the costs and financing of an advisory centre facilitating the participation by francophone African States. Moreover, the Organisation internationale de la Francophonie hosts pre-session consultations in French to discuss the work and progress of Working Group III, which were also attended by many francophone African States.

VII.          Conclusion

The Working Group has completed a first round of preliminary considerations of reform options, tasked the Secretariat with further extensive preparatory work and engaged actively in discussion on the structure and resources for future work. For several of the reform options on the agenda, draft provisions have been developed by the Secretariat to provide the Working Group with a solid basis for further deliberations. A work plan has been prepared aiming for a delivery of a complete reform of the ISDS system by 2024 and a final adoption by the Commission in 2025.

The Working Group continues to simultaneously discuss, elaborate and develop multiple reform solutions. It finds itself now at the juncture where it needs to allocate working group time to the development of streams of reform options, grouping them for more coherence into a first set of provisions to reform the dispute settlement provisions of existing and future IIAs or relevant rules and a second batch or stream on a reformed dispute system design with the establishment of standing bodies such as a first instance court, an appellate court or mechanism and an advisory centre on ISDS for developing countries. It will also start deliberating on the delivery mechanism for the overall reform process, through a multilateral convention that will host the entire reform.

Now that the development of reform options is well underway, it is even more important for States and stakeholders from the African region to be fully involved and to make their voices and priorities heard. While negotiating an investment chapter to the AfCFTA, it is also essential that the reform options being developed in UNCITRAL are reflected or further taken on-board, that coordination mechanisms are established to ensure that the first investment chapter to be developed after the reform of ISDS has begun completely reflects the current state of play and builds on it.

* Anna Joubin-Bret is the Secretary of the United Nations Commission of International Trade Law (UNCITRAL) and Director of the International Trade Law Division of the Office of Legal Affairs of the United Nations; Ms Joubin-Bret was assisted by David Probst, an Associate Expert in International Trade law at the UNCITRAL Secretariat; The views expressed in this article are those of the authors and do not necessarily represent those of the Organization.

[2] This contribution reports on an ongoing reform process, which continues to make progress. For the latest updates on UNCITRAL’s activities and the current status of the reform discussion, please visit the UNCITRAL Working Group III web page (https://uncitral.un.org/en/working_groups/3/investor-state) and follow our posts on twitter (@annajoubinbret) and LinkedIn (https://www.linkedin.com/company/uncitral/).

[3] The UNCTAD World Investment Report 2020 states that in 2019 “[a]s in previous years, the majority of new cases (80 per cent) were brought against developing countries and transition economies.”, available at https://unctad.org/system/files/official-document/wir2020_en.pdf (last accessed 9 April 2021).

[4] See also “Possible reform of investor-State dispute settlement (ISDS), Note by the Secretariat”, UNCITRAL, Working Group III, 34th Sess. (Vienna, 27 November-1 December 2017), UN Doc. A/CN.9/WG.III/WP.142 (18 September 2017) para. 6.

[5] “International Investment Agreements Navigator”, (United Nations Conference on Trade and Development, Investment Policy Hub), <https://investmentpolicy.unctad.org/international-investment-agreements> (last accessed 2 December 2020).

[6] “Investor-State Dispute Settlement Cases pass the 1,000 Mark: Cases and Outcomes in 2019”, UNCTAD IIA issues note, issue 2 (July 2020), <https://unctad.org/en/PublicationsLibrary/diaepcbinf2020d6.pdf> (last accessed 2 December 2020); Many more cases are brought under contracts and investment laws.

[7] See Gabrielle Kaufmann-Kohler and Michele Potestà (CIDS – Geneva Centre for International Dispute Settlement), “Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and roadmap” (3 June 2016), available from <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/cids_research_paper_mauritius.pdf>, para. 18-23; See also Anna Joubin-Bret and Jean E. Kalicki, “Introduction”, in Anna Joubin-Bret and Jean E. Kalicki, eds., Reshaping the Investor-State Dispute Settlement System, (Brill | Nijhoff 2015), pp. 1-17.

[8] Bolivia denounced the ICSID Convention in 2007 (See news release, Denunciation of ICSID Convention (16 May 2007), available from <https://icsid.worldbank.org/news-and-events/news-releases/denunciation-icsid-convention> (last accessed 2 December 2020)); Ecuador denounced the ICSID Convention in 2010 (See news release, Denunciation of the ICSID Convention by Ecuador (9 July 2009), available from <https://icsid.worldbank.org/news-and-events/news-releases/denunciation-icsid-convention-ecuador> (last accessed 2 December 2020)); Venezuela denounced the ICSID Convention in 2012 (See news release, Venezuela Submits a Notice under Article 71 of the ICSID Convention (26 January 2012), available from <https://icsid.worldbank.org/news-and-events/news-releases/venezuela-submits-notice-under-article-71-icsid-convention> (last accessed 2 December 2020)).

[9] Philip Morris Asia Limited v. The Commonwealth of Australia (PCA Case No. 2012-12), see UNCTAD Investment Dispute Settlement Navigator, <https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/421/philip-morris-v-australia> (last accessed 2 December 2020).

[10] Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay (ICSID Case No. ARB/10/7), see UNCTAD Investment Dispute Settlement Navigator, <https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/368/philip-morris-v-uruguay> (last accessed 2 December 2020).

[11] See for example Evolution and Adaption, The Future of International Arbitration, ICCA Congress Series no. 20 (2018); Anna Joubin-Bret and Jean E. Kalicki, eds., Reshaping the Investor-State Dispute Settlement System, (Brill | Nijhoff 2015); See also George A. Bermann, Reshaping the Investor-State Dispute Resolution System, ICSID Review - Foreign Investment Law Journal, Volume 31, Issue 1, Winter 2016, Pages 232–235, https://doi.org/10.1093/icsidreview/siv041 (last accessed 29 January 2021).

[12] “Report of the United Nations Commission on International Trade Law, Fiftieth session (3-21 July 2017)” General Assembly, 72nd Sess., UN Doc. A/72/17, para. 258.

[13] UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (effective date: 1 April 2014), text and additional resources available on the UNCITRAL web page at <https://uncitral.un.org/en/texts/arbitration/contractualtexts/transparency> (last accessed 4 December 2020).

[14] “Report of the United Nations Commission on International Trade Law”, 46th Sess. (8-26 July 2013) General Assembly, 68th Sess., UN Doc. A/68/17, Annex I, at C.

[15] “Report of the United Nations Commission on International Trade Law”, 48th Sess. (29 June-16 July 2015) General Assembly, 70th Sess., UN Doc. A/70/17, para. 268; See also “Settlement of commercial disputes: presentation of a research paper on the Mauritius Convention on Transparency in Treaty-based Investor-State Arbitration as a possible model for further reforms of investor-State dispute settlement, Note by the Secretariat” UNCITRAL, 49th Sess. (New York, 27 June-15 July 2016) UN Doc. A/CVN/9/890 (24 May 2016).

[16] Gabrielle Kaufmann-Kohler and Michele Potestà (CIDS – Geneva Centre for International Dispute Settlement), “Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and roadmap” (3 June 2016), available from <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/cids_research_paper_mauritius.pdf>, p. 93, 94.

[17] See also wording of the mandate in “Report of the United Nations Commission on International Trade Law”, 50th Sess. (3-21 July 2017) General Assembly, 72nd Sess. Supplement No. 17, UN Doc. A/72/17, para. 264.

[18] “Report of the United Nations Commission on International Trade Law”, 50th Sess. (3-21 July 2017) General Assembly, 72nd Sess. Supplement No. 17, UN Doc. A/72/17 (henceforth Commission Report 72), para. 250.

[19] Submissions by States and observer organizations are published on the UNCITRAL Working Group III web page at <https://uncitral.un.org/en/working_groups/3/investor-state> (last accessed 2 December 2020).  

[20] See “Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its resumed thirty-eighth session” (Vienna, 20–24 January 2020) UNCITRAL, 54th Sess., UN Doc. A/CN.9/1004/Add.1 (28 January 2020) (henceforth WGIII Report 1004/Add.1) p. 3; See also “UNCITRAL Working Group on investor-State dispute settlement (ISDS) continues work on reforms”, Press Release, UNIS Vienna, United Nations Information Service, (24 January 2020), available at <https://unis.unvienna.org/unis/en/pressrels/2020/unisl289.html> (last accessed 2 December 2020).

[21] First Inter-sessional Regional Meeting 10-12 September 2018, Incheon, Republic of Korea; Second Inter-sessional Regional Meeting, 13-14 February 2019, Santo Domingo, Dominican Republic; Third Inter-sessional Regional Meeting, 26 September 2019, Conakry, Guinea. 

[22] Virtual Pre-Intersessional Meeting on the Use of Mediation in ISDS, 9 November 2020.

[23] See WGIII Report 1004/Add.1, p. 3; See also “UNCITRAL Working Group on investor-State dispute settlement (ISDS) continues work on reforms”, Press Release, UNIS Vienna, United Nations Information Service, (24 January 2020), available at <https://unis.unvienna.org/unis/en/pressrels/2020/unisl289.html> (last accessed 2 December 2020).

[24] See “Report of the United Nations Commission on International Trade Law, 51st Sess. (25 June–13 July 2018) General Assembly 73rd Sess., UN Doc. A/73/17 (31 July 2018), para. 144; See also “Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-sixth session (Vienna, 29 October–2 November 2018)” UNCITRAL, 52nd Sess., UN Doc. A/CN.9/964 (6 November 2018) (henceforth WGIII Report 964) para. 15; Concept papers of the Academic Forum on ISDS can be accessed on the following dedicated web page: <https://www.jus.uio.no/pluricourts/english/projects/leginvest/academic-forum/>.

[25] Working Papers and additional resources can be accessed on the UNCITRAL Working Group III web page at <https://uncitral.un.org/en/working_groups/3/investor-state>.

[26] See the dedicated web page, Virtual Panel Series: UNCITRAL Texts and COVID-19 Response and Recovery - 8 to 9 and 13 to 16 July 2020 at <https://uncitral.un.org/en/COVID-19-panels>.

[27] Commission Report 72 , para. 259.

[28] Ibid.

[29] See UNCITRAL Working Group III web page at (<https://uncitral.un.org/en/working_groups/3/investor-state>) (last accessed 4 December 2020).

[30] Audio recordings of the Working Group III sessions can be accessed at <https://uncitral.un.org/en/audio>.

[31] For further information on the ICSID Rules and Regulations Amendment project see the ICSID web page at <https://icsid.worldbank.org/resources/rules-and-regulations/icsid-rules-and-regulations-amendment-working-papers> (last accessed 3 December 2020).

[32] See Secretariat Note 170.

[33] See ”Reforming Investment Dispute Settlement: A Stocktaking” UNCTAD (March 2019, Issue 1), available at <https://unctad.org/en/PublicationsLibrary/diaepcbinf2019d3_en.pdf> (last accessed 3 December 2020); In the (signed but not yet ratified) U.S.-Mexico-Canada Agreement (USMCA), Canada withdraws from the ISDS mechanism as it existed under NAFTA; Recently, 23 Member States of the European Union signed an agreement for the termination of intra-EU bilateral investment treaties as such.

[34] ”Reforming Investment Dispute Settlement: A Stocktaking” UNCTAD (March 2019, Issue 1), available at <https://unctad.org/en/PublicationsLibrary/diaepcbinf2019d3_en.pdf> (last accessed 3 December 2020).

[35] WGIII Report 1004, para. 99.

[36] The Working Group had identified a number of concerns related to the following three broad categories: the lack of consistency, coherence, predictability and correctness of arbitral decisions, arbitrators and decision makers, and cost and duration of ISDS. The Working Group had further agreed to discuss, elaborate and develop multiple potential reform solutions simultaneously.

[37] WGIII Report 1004, para. 25.

[38] See WGIII Report 1004, para. 17; WGIII Report 970, para. 39 and 40; This list of reform options was considered non-exhaustive and other concerns were not precluded from being identified and dealt with at a later stage of the deliberations.

[39] The Submissions that refer to the implementation of multiple reform options include the following: Submission by the European Union 159/Add.1; “Possible reform of investor-State dispute settlement (ISDS)

Submission from the Government of Colombia, Note by the Secretariat”, UNCITRAL Working Group III, 38th Sess. (Vienna, 14–18 October 2019) UN Doc. A/CN.9/WG.III/WP.173 (14 June 2019) (henceforth Submission by Colombia 173); and Submission by Ecuador 175; see also “Possible reform of investor-State dispute settlement (ISDS), Submission from the Governments of Chile, Israel, Japan, Mexico and Peru, Note by the Secretariat”, UNCITRAL Working Group III, 38th Sess. (Vienna, 14–18 October 2019) UN Doc. A/CN.9/WG.III/WP.182 (2 October 2019) (henceforth Submission by Chile, Israel, Japan, Mexico and Peru 182), suggesting implementation of reform options through a “suite” approach; See also Secretariat Note 194; WGIII Report 1004, paras. 101 and 104.

[40] Gabrielle Kaufmann-Kohler and Michele Potestà (CIDS – Geneva Centre for International Dispute Settlement), “Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and roadmap” (3 June 2016), available from <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/cids_research_paper_mauritius.pdf>, p. 93, 94.

[41] Submission by Colombia 173.

[42] Submission by Colombia 173, para. 29.

[43] Submission by the European Union 159/Add.1, paras. 35–37, 39.

[44] Submission by Chile, Israel, Japan, Mexico and Peru 182, p. 2 and Annex.

[45] Ibid., para. 108.

[46] See UNCITRAL Working Group III webpage, <https://uncitral.un.org/en/working_groups/3/investor-state> (last accessed 8 April 2021).  

[47] See Summary of the intersessional regional meeting on investor-State dispute settlement (ISDS) reform submitted by the Government of the Republic of Guinea, A/CN.9/WG.III/WP.183, available at <https://undocs.org/en/A/CN.9/WG.III/WP.183> (last accessed 7 April 2021).