UNCITRAL Working Group III continues its work on ISDS reform at its 42nd session

Draft code of conduct for legal decision-makers remains at the heart of the work

In accordance with the third phase of its mandate, as well as the work planning and resourcing plan adopted at its 40th session, UNCITRAL Working Group III (WGIII) has continued its work on ISDS reform in 2022, with a focus on the draft code of conduct for international investment adjudicators, which was already the sole topic on the agenda of the 41st session and the subject of an informal meeting in December 2021.

WGIII resumed its work in 2022 with a first informal session on January 20, 2022, jointly organized with ICSID. It focused on Article 4 of the code of conduct, one of the more sensitive provisions that was discussed in a previous article on the draft code of conduct.

The 42nd session also considered a draft text on a standing multilateral mechanism

The 42nd formal session of WGIII was held in a hybrid format from February 14–18, 2022. On the agenda was the continuation of the review of the draft code of conduct, a first review of the draft standing multilateral mechanism, and discussions on a possible multilateral advisory centre. However, following a proposal by the Chair of WGIII to the delegations submitted on January 22 and discussed at length at the beginning of the 42nd session, the multilateral advisory centre was removed from the agenda and the time was divided equally between the two remaining topics.

Despite the shortening of the agenda and the stated intention to submit a final draft code of conduct to the UNCITRAL Commission for review in 2022, WGIII was unable to reach a consensus on all provisions of the draft. It was, therefore, requested that a revised version of the draft with comments be resubmitted for consideration at the 43rd session of WGIII in September 2022, with a view to submitting a draft to the Commission at its 56th session in 2023.

WGIII also did not finish its review of the draft standing multilateral mechanism, of which only Articles 1 to 7 were considered. WGIII requested that the Secretariat prepare a revised version of the draft provisions reviewed and agreed to proceed with the review of the remaining provisions at a future session.

Following the 42nd session, informal meetings were held on March 2–3 on an appellate mechanism and on March 23–24 on the draft code of conduct.

55th session of the UNCITRAL Commission on the horizon and new draft texts published for comment

The UNCITRAL Commission will hold its 55th session from June 27 to July 15, 2022, during which it will consider the progress of WGIII’s work on ISDS reform. The Secretariat has also published two new documents: an initial draft of the pertinent elements of selected permanent international courts and tribunals (for comments by delegations no later than June 30, 2022) and an initial draft on the appellate mechanism (for comments by delegations no later than May 15, 2022).

UNCITRAL WGIII will reconvene from September 5 to 16, 2022, at its 43rd formal session.