Delegates involved in the UNCITRAL Working Group III process on multilateral ISDS reform have until July 15, 2019 to submit to the UNCITRAL Secretariat their reform proposals and the timing for when such items may be considered in an overarching project schedule. That schedule would help guide the working group under Phase 3 of its mandate, which is devoted to crafting solutions to ISDS-related concerns.
The July 15 deadline was one of the agreed outcomes of the April 2019 meetings of the working group, held in New York. The working group agreed that it would “discuss, elaborate and develop multiple potential reform options simultaneously,” using the project schedule as a core component of coordinating work across these parallel tracks. One track would focus on structural reforms, while the other would involve other types of solutions.
The project schedule will be developed during the working group’s Vienna session, currently slated for October 14–18, 2019. That meeting would also serve as an opportunity to examine the reforms proposed in the July submissions, along with developing these ideas further.
The April 2019 meetings also addressed the topic of third-party funding, with the working group agreeing that reforms were needed “to address concerns related to the definition, and to the use or regulation” of this type of financial support in the context of ISDS arbitration.
The working group also examined a set of “other concerns” to see whether any should be added to those previously identified at other sessions.
Among the possible “other concerns” raised in April were alternative options for resolving disputes or preventing them; requirements for investors to exhaust local remedies before resorting to arbitration; the participation of third parties, such as the general public or local communities; the possibility of states or third parties to lodge counterclaims; the potential for regulatory chill from ISDS; and issues with arbitral tribunals’ calculation of damages.
In all instances, the working group decided not to add these to the existing list of concerns that have been identified in Phase 2 of its discussions. The reason for this decision, the working group said, is that these issues involve tools for addressing concerns, rather than serving as concerns themselves, and that some of these issues could fall within the scope of previously identified concerns.