The UNCITRAL WGIII on ISDS reform held its 41st session from November 15–19, 2021, with delegates participating both in person and virtually.
As we last reported, in September the UNCITRAL Secretariat released a list of documents on a range of reform-related topics to be discussed throughout the remainder of the year. These topics include assessment of damages and compensation, mediation and alternative dispute resolution, establishment of an advisory centre, selection and appointment of ISDS tribunal members, and third-party funding of ISDS claims. Draft provisions and other documents related to these topics have been open for comment on an ongoing basis. These included the Initial draft on Assessment of Damages and Compensation, on which IISD, the Columbia Center for Sustainable Development and the International Institute for Environment and Development (IIED) submitted comments.The next deadline is December 31 for comments on the Draft Text on Mediation and Other Alternative Forms of Dispute Resolution (FAR).
At the November meeting, discussions focused on the proposed Draft Code of Conduct for Adjudicators in International Investment Disputes and its attendant note on Means of Implementation and Enforcement. Both documents have been jointly proposed by the ICSID and UNCITRAL secretariats (Editor’s note: see our in-depth discussion of the Code of Conduct here).
However, the WGIII was not able to review the entirety of the proposal, nor reach agreement on the content that was reviewed. Important divergences remain on several issues, such as article 4 on arbitrators’ double-hatting.
Consultative meetings from December 6-10 focused on some remaining provisions of the Code of Conduct, financing aspects of a multilateral investment tribunal, a multilateral instrument on ISDS reform, and shareholders’ claims for reflective loss. An OECD paper on the latter topic was submitted to UNCITRAL Working Group III.
The WG will next meet March 28-April , 2022, in New York.