UNCITRAL Working Group III—Investor–State Dispute Settlement Reform—enters crucial phase

From September 5 to 16, 2022, UNCITRAL Working Group III (WGIII) on ISDS Reform held its 43rd session. This was the first in-person session since the global outbreak of COVID-19. It was also one of the longest WGIII sessions, covering a broad range of topics. Moving away from the hybrid format followed during the pandemic, the delegates that attended the session virtually were not allowed to make interventions.

Ninety-two delegations sent their delegates in person, with 14 attending virtually. Observers from civil society and representatives of the business and arbitration industry were present at the session as well.

The topics discussed during the session were the selection and appointment of ISDS tribunal members in a standing mechanism, advisory centre on ISDS, assessment of compensation and damages, TPF, other procedural and cross-cutting issues to be discussed in future sessions, draft provisions on mediation with the draft guidelines, and a second reading of the draft Code of Conduct for Adjudicators.

IISD joined forces with Columbia Center on Sustainable Investment and South Centre to organize a side event for developing countries´ delegations to support the latter regarding the topic of assessment of compensation and damages. The three partner organizations proposed draft language on the limitation of the use of income-based valuation techniques for the assessment of damages in ISDS. Following the presentation of the proposal, lively discussion among the delegates ensued. WGIII discussed the topic the next day, with various developing countries´ delegations raising the importance of the Working Group continuing to work on the topic of damages and valuation techniques. As a result, the UNCITRAL Secretariat was instructed to propose draft provisions on, among other things, valuation techniques to be proposed for discussion at later Working Group sessions.

According to the Chair of the WGIII, it is envisaged that the 44th session of the Working Group scheduled to be held in Vienna from January 23 to 27, 2023, would be devoted to the Code of Conduct and the accompanying commentary as well as the appellate mechanism. The 45th session scheduled to be held in New York from March 27 to 31, 2023, would then be devoted to the texts in the area of ADR and dispute prevention.