The last years have been marked by the reform of the institutions, treaties, and procedural rules that make-up a large part of investment arbitration. These institutional efforts to reform the ISDS system have continued throughout 2022.
UNCITRAL Working Group III (“WGIII”) has been busy since the 2017 broad mandate entrusted by the Commission to explore ISDS reform. In 2022 the WGIII has continued its work focusing on the draft code of conduct for international investment adjudicators (having UNCITRAL and ICSID issue Draft Version Four on 22 July 2022), a first review of thedraft standing multilateral mechanism, and discussions on a possible multilateral advisory centre. In the 42nd session, held in February 2022, the multilateral advisory centre was removed from the agenda and the time was divided between the two other topics. However, as WGIII was unable to reach a consensus on all provisions of the draft code of conduct, as well as of the draft standing multilateral mechanism, a revised version of both will be resubmitted for consideration at the 43rd session of WGIII in September 2022.
It is worth noting that since 2007, new generations of ISDS provisions negotiated in international investment agreements have come to fruition. In fact, there seem to be numerous single topic conventions that address specific procedural elements of arbitration or mediation such as the Mauritius Convention on Transparency; the Singapore Convention on Mediation. Potentially, this method would be used to adopt WG III amendments. In parallel, there are many new investment treaties, model BITs, and overlapping investment chapters.
With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, a long suspense before the outcome is unavoidable. States are pursuing a wide range of changes to the current system, some of which may be incompatible with one another.
A number of States prefer investment arbitration. Others favor an multilateral investment court. Still others reject international dispute settlement altogether. This panel will address: