UNCITRAL WGIII Reconvenes to Discuss Work and Resourcing Plan; Civil society observers raise concerns
The UNCITRAL WGIII convened, with delegates able to attend virtually or in-person, from May 4–5, 2021 for the resumption of its 40th session. On the agenda was consideration of the draft work and resourcing plan.
The workplan, circulated in April, sets out a detailed schedule of meetings and the areas of reform to be discussed. These now include alternative dispute resolution mechanisms and dispute prevention; selection and appointment of arbitrators; arbitrator code of conduct, third-party funding; ISDS procedural rules and reforms; a multilateral advisory centre; an appellate mechanism; the multilateral permanent investment court; and a multilateral instrument to implement reforms.
Draft notes on the establishment of an advisory centre, third-party funding, and the arbitrator code of conduct have all been made available.
Commentary on the work plan notes that adjustments and changes can be made as discussions progress. The commentary further notes that some of the issue areas identified in this plan have been kept purposefully broad, in order to capture “a number of cross-cutting issues” that have been raised in discussions to date.
In total, the workplan proposes 56 days of meetings over the next four years, with these sessions coming to an end in 2025. However, some reform proposals may be subject to “approval in principal [sic]” before that time.
Both the work and resourcing plan have raised concerns of civil society organizations involved in the ISDS reform process.
A recent IISD blog post notes the reality of, and potential for greater, tension between more reform-minded delegations and those that prefer to maintain the status quo. Indeed, there appears to be perhaps less consensus than we may have assumed about the need for reform, as “a few delegations, private lawyers and industry groups indicated that the current system of investor–state arbitration is working well enough for their purposes, and they oppose meaningful reform, even though WGIII had previously agreed that reform was desirable.”
Similarly, in a recently published blog post, the Columbia Center on Sustainable Investment raised the alarm that reform options that would significantly diminish the role of ISDS in the investment protection regime are being sidelined in favour of more technical fixes.
The next session of UNCITRAL WGIII is scheduled for November 15–19, 2021.