The Present and Future of UNCITRAL’s Investor-State Dispute Resolution Reform: A Fireside Chat with UNCITRAL Secretary Anna Joubin-Bret
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On October 1, 2021, Anna Joubin-Bret, the Secretary of UNCITRAL, presented at American University Washington College of Law about the current status of the reform of investor-state dispute resolution in UNCITRAL Working Group III (WG III). This was the first time in more than two years that she addressed a U.S. audience about the progress of the WG III’s work. Anna Joubin-Bret’s presentation was introduced by remarks from Professor Padideh Ala’i, Director of International and Comparative Legal Studies at AUWCL. She was introduced to the audience by AUWCL Professor Susan Franck, who also moderated the Q&A session afterwards.
Anna Joubin-Bret highlighted that in July 2017 the WG III was entrusted with a “broad mandate” to work on the possible reform of investor-state dispute settlement. The WG fulfilled this task by first identifying topics that are of concern to the states and may be reformed in the process. The next step in the WG’s work was to specifically focus on which of those topics could be realistically tackled through multilateral action spearheaded by UNCITRAL. Finally, since 2019, the WG III is engaged in the third step, which is studying the “reform elements” as part of specific plans to reform investment arbitration.
A special feature of WG III is that it is government-led, as opposed to the usual method at UNCITRAL of experts doing the groundwork for drafts of international conventions. This government-led method allows for the participants to have greater decision-making power and impact on the domestic legislatures. In addition, the WG III has an academic forum, which prepares working papers about the issues discussed. A practitioners group allows for the voices of the investment arbitration practitioners to be heard in an informal setting.
The broad array of reform elements include ADR mechanisms and dispute prevention, selection and appointment of arbitrators, code of conduct, the role of a Multilateral Advisory Centre, an appellate mechanism, the establishment of a Multilateral Permanent Investment Court, procedural rules’ reforms, and multilateral instruments to implement the reform.
The ideal end goal or objective envisioned by the WG III is the adoption of a multilateral convention under the UNCITRAL auspices that could be applicable to existing bilateral treaties and to future treaties. This convention will set out some common reform elements, and provide flexibility about others that are of interest only to specific groups of states. Any arrangement will straighten and solidify investment arbitration as we know it, including any provisions on ADR or mediation, and the possibility of appeal against an investment arbitration award. Another advantage of the new architecture will be that the states regain control over the application of their investment protection provisions contained in their investment treaties.
In response to questions, the Secretary clarified that UNCITRAL’s work is complementary to the initiatives at ICSID. Both entities have the same membership, and so their interests are aligned and indeed to a large extend the same.