UNCITRAL Working Group III 38th Session in Vienna in January 2020

5 February, 2020

From 20 to 24 January 2020, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (‘Working Group’) held its thirty-eighth session in Vienna (Austria).

As reported in previous AW report on the Working Group’s thirty-seventh session (https://www.arbitralwomen.org/uncitral-working-group-iii-moves-forward-on-isds-reform/), the Working Group’s mandate includes three steps:

  1. the identification and consideration of concerns regarding investor-state dispute settlement (ISDS);
  2. consideration of whether reform was desirable in light of any identified concerns; and
  3. if the Working Group were to conclude that reform was desirable, developing any relevant solutions to be recommended to the Commission.

From its thirty-fourth to thirty-seventh sessions, the Working Group identified and discussed concerns regarding ISDS. Eventually, the Working Group III reached the conclusion that reform was desirable in light of the identified concerns. The thirty-eighth session was then scheduled to focus on developing ISDS reform proposals.

From 14 October 2019, the Working Group held the first part of its thirty-eighth session in Vienna (See https://undocs.org/en/A/CN.9/1004). During that session, the Working Group considered three reform options regarding the three following items:

  1. A multilateral advisory centre and related capacity-building activities (based on document A/CN.9/WG.III/WP.168);
  2. A code of conduct (based on document A/CN.9/WG.III/WP.167); and
  3. Third-party funding (based on document A/CN.9/WG.III/WP.172).

On 20 January 2020, the Working Group III resumed its thirty-eighth session in Vienna, which continued for four days. The Agenda included three further reform options for consideration:

  1. A stand-alone review or appellate mechanism;
  2. A standing multilateral investment court; and
  3. A selection and appointment of arbitrators and adjudicators.

Other issues with respect to related items were also raised such as, inter alia, the enforcement mechanism of an appellate body’s decisions; the enforcement mechanism of a multilateral investment court’s judgements; the financing of such permanent bodies; means to ensure diversity in the composition of the Secretariat of any appellate body or multilateral investment court, likewise in the appointment of arbitrators and adjudicators.

With respect to the qualifications and requirements on the one hand, and the selection and appointment of ISDS tribunal members on the other hand, the Secretariat was requested to prepare options covering the different aspects identified during the deliberations and to further analyse the different mechanisms considered by the Working Group.

Attendance to the resumed thirty-eight session

In addition to the 56 States Members of the Commission, the thirty-eighth session also was attended by 41 States as observers along with observers representing the European Union, the International Centre for the Settlement of Investment Disputes (ICSID), the United Nations Conference on Trade and Development (UNCTAD), the African Union, the Asian-African Legal Consultative Organisation (AALCO), the Commonwealth Secretariat, the Eurasian Economic Commission, the Gulf Cooperation Council (GCC), the Maritime Organisation of West and Central Africa (MOWCA), the Organization for Economic Cooperation and Development (OECD), the Permanent Court of Arbitration (PCA) and the South Centre.

ArbitralWomen was also represented among the large number of invited non-governmental organizations.

Calendar

The next UNCITRAL Working Group III session will be held in New York from 30 March to April 2020.

Three parallel events of interest were also announced at the end of the session:

  1. the government of the People’s Republic of China proposed to host an inter-sessional meeting on international mediation in Hong Kong Special Administrative Region, China during the first week of June 2020;
  2. A joint workshop with OECD on the topic of reflective loss and shareholder claims, tentatively scheduled for early July; and
  3. the Secretariat was planning to hold a roundtable dialogue in cooperation with the International Chamber of Commerce (ICC) during the first half of 2020 to obtain the views of the investors with regard to the reform options being discussed by the Working Group.

Working Group III’s formal report on the session is available at:

https://uncitral.un.org/sites/uncitral.un.org/files/report_1004-add1_for_submission_rev_002.pdf

Submitted by ArbitralWomen Board Member Affef Ben Mansour, Independent Counsel and Arbitrator, based in Paris. Affef attended the resumed thirty-eighth session of the Working Group III as an observer on behalf of ArbitralWomen.