The UNCITRAL Working Group III (WGIII) convened virtually from February 8 to 12 for its 40th session. During this session, the group’s deliberations focused on two main issues related to structural reform of ISDS: the selection and appointment of ISDS tribunal members in the context of a “Standing mechanism” or “Standing body” (A/CN.9/WG.III/WP.203) and an appellate mechanism (A/CN.9/WG.III/WP.202).
Initially included in the agenda, the topics of enforcement and the code of conduct for adjudicators in ISDS (A/CN.9/WG.III/WP.201) were deferred to a future session by the WGIII due to lack of time.
The WGIII also agreed at the beginning of the session to remove the discussion on a draft work and resourcing plan from the agenda, and delegations were asked to submit written comments by March 1, 2021. IISD, CCSI, and IIED made a joint submission on the draft. The submission is the fourth in a series of joint submissions by the three organizations to the WGIII in the context of ISDS reform.
It was clarified during the session that comments and suggestions are made without prejudice to any delegations’ final position on specific reform options; thus, deliberations do not imply any decision on the desirability and feasibility of a standing mechanism or an appellate mechanism.
As observers have noted, the chair of the working group has begun to push delegates toward finalizing a set of proposed reforms. However, for some delegates, it is premature to move to finalize a text, as there is insufficient agreement on the approach for structural reforms. Indeed, some delegations remain opposed to some proposed options, notably the permanent standing body and an appellate mechanism. On the other hand, other delegates appear eager to start developing and reviewing texts, including for a permanent body with a first instance and an appeal mechanism.
The discussions on the reform of ISDS Systems will resume officially in November. In the meantime, a series of intersessional meetings and informal sessions will be held on various topics aiming at preparing and advancing on topics that will be discussed at the next official sessions.
A webinar on the draft Code of Conduct was held on March 3, 4, and 8, 2021.