A group of 20 civil society organizations and trade unions from the African continent have circulated a letter questioning the EU’s multilateral investment court (MIC) proposal in the context of the UNCITRAL Working Group III talks on multilateral ISDS reform and urging for a set of alternative proposals to advance instead.
The letter, published on the Bilaterals website, was prepared ahead of the January UNCITRAL Working Group III meetings. (Editor’s note: A detailed News in Brief update on the UNCITRAL discussions is available in this edition of ITN.)
The authors of this letter cite among their concerns the procedural focus of the MIC, warning that it could entrench many long-standing problems of ISDS, rather than ameliorating them. Instead, they call for closer consideration of other reform options, such as withdrawal of states’ consent to arbitrate, as well as the termination of the current stock of treaties that provide for ISDS.
They also suggest that the working group push for permitting counterclaims in certain circumstances; supporting “third-party access” in cases, with full rights as other dispute parties; ensuring that the “right (and duty) to regulate in the public interest” is appropriately enshrined in ISDS mechanisms; requiring the exhaustion of local remedies; setting limits to the amount of compensation that may be awarded; prohibiting third-party funding; and blocking investors from using ISDS if they have violated domestic or international law.