CCSI and UNCITRAL’s Working Group III on Investor-State Dispute Settlement Reform

UNCITRAL’s WGIII has identified a variety of concerns related to Investor-State Dispute Settlement. CCSI’s work as it relates to each of these concerns is set forth below.

Concerns relating to the lack of consistency, coherence, predictability and ‘correctness’ of arbitral decisions

• Inconsistency’s Many Forms in Investor-State Dispute Settlement and Implications for Reform (Nov. 2018)
• State Control over Interpretation of Investment Treaties (April 2014)
• Ripe for Refinement: The State’s role in interpretation of FET, MFN, and Shareholder Rights (April 2015)
• For more information on CCSI’s work on state control over treaty interpretation, see here.

Concerns relating to arbitrators and decision makers

• N/A

Concerns relating to costs and duration of ISDS cases

• Securing Adequate Legal Defense in Proceedings Under International Investment Agreements: A Scoping Study (Nov. 2019)

Third-Party Funding

• Webinar, A Critical Perspective of Third-Party Funding in ISDS, and related powerpoint presentation
• Powerpoint presentation, Third Party Funding: Advancing or Undermining the Purpose of Investment Treaties?
• CCSI and ICCA, Round Table Discussion Of The ICCA-Queen Mary Task Force On Third-Party Funding In International Arbitration Draft Report For Public Discussion, October 2017
• CCSI, The Policy Implications of Third-Party Funding in Investor State Dispute Settlement, May 2019
• Third Party Funding - https://www.youtube.com/watch?v=k1HkUN6_nSc
• For more information on CCSI’s work on Third-Party Funding in ISDS related to UNCITRAL WCIII click here.

Implications for third parties and the role of third-party participation

• Third Party Rights in Investor-State Dispute Settlement: Options for Reform (July 2019; WGIII Submission) (also available in Spanish) 
• Investment Disputes and Affected Third Parties: Issues and Options for Reform (April 2019; slides available for download)
• Access to Justice and Corporate Accountability for Investment-Related Harms: Opportunities and Limitations of the International Investment Regime (January 2020, CCSI Blog) 
• Outcome Report of Roundtable on International Investment Regime and Access to Justice (Report and Briefing Note, 2017)
• More on CCSI’s work on the impact of ISDS on access to justice for third parties

Means other than arbitration to resolve investment disputes as well as dispute prevention methods

• Investor-State Mediation: An Opportunity to Advance Sustainable Outcomes (Jan. 2020)

Exhaustion of local remedies

• Alternatives to Investor-State Dispute Settlement (2019)

Investor obligations and counterclaims

• CCSI, Reform Option: Counterclaims (2019)
• The Settlement of Investment Disputes: A Discussion of Democratic Accountability and the Public Interest (March 2017)
• IIAs and Investor (Mis) Conduct (January 2020, CCSI Blog) 
• Access to Justice and Corporate Accountability for Investment-Related Harms: Opportunities and Limitations of the International Investment Regime (January 2020, CCSI Blog)
• CCSI Comments to the OECD draft publication on Business Responsibilities and Investment Treaties (February 2020 (p 95-105); Related OECD Consultation Paper)

Regulatory chill

• Environmental Injustice: How treaties undermine human rights related to the environment

Valuation and Damages

• Webinar: Beyond Economics: The DCF Method Applied to ISDS (Video)
• Webinar: Damages in ISDS: Just Compensation or Highway Robbery? 
• Webinar: Compensation for a Just Energy Transition to a Zero-Carbon World: Practices and Principles in International (Investment) Law and Domestic Law
• Webinar: Crippling Compensation in ISDS: Current Practices and New Approaches

Other Relevant Publications:

• Principles that should be guiding reform
  • Commentary on selected Draft Provisions on Procedural and Cross-Cutting Issues (A/CN.9/WG.III/WP.231) (October 2023)
  • Commentary on Procedural Concerns and Adoption  Draft Provisions on Procedural and Cross-Cutting Issues (A/CN.9/WG.III/WP.231) (October 2023)
  • UNCITRAL Working Group III on ISDS Reform: How Cross-Cutting Issues Reshape Reform Solutions (July 2019; WGIII Submission)
  • ISDS Reform at UNCITRAL: Two Guiding Principles (Oct. 2019)
  • Costs and Benefits of Investment Treaties: Practical Considerations for States (March 2018)
  • Aligning Investment Treaties with Sustainable Development (2019)
  • Investment Treaties and Human Rights Law (Nov. 2019)
  • Human Rights Law and the Investment Treaty Regime (June 2019)
• Alternatives to ISDS and termination of Investment Treaties
  • Exploring Alternatives to ISDS (ongoing work)
  • Call for ISDS Moratorium During COVID-19 Crisis and Response (May 2020)
  • Draft Treaty Language: Withdrawal of Consent to Arbitrate and Termination of International Investment Agreements (July 2019; WGIII Submission)
  • Clearing the Path: Withdrawal of Consent and Termination as Next Steps for Reforming International Investment Law (April 2018)

CCSI was commissioned by the Deutsche Gesellschaft für Zusammenarbeit (GIZ) GmbH on behalf of the German Federal Ministry of Economic Cooperation and Development (BMZ) to organize a series of sessions for UNCITRAL Working Group III designed to provide a forum in which developing country delegates from low- and middle-income countries can consider issues that will be discussed at forthcoming Working Group Sessions and prepare for these sessions and intersessional engagements (whether formal or informal, internal or external). 

For the 36th through 38th (resumed) session, CCSI conducted in-person sessions over the two days preceding the Working Group sessions. Prior to the 39th session (which was postponed from April 2020 to October 2020 due to the COVID-19 pandemic), CCSI conducted a series of online preparatory sessions. In advance of the 44th and 45th sessions in 2023, CCSI is conducting a series of 8 preparatory workshops, with four prior to the 44th session and four prior to the 45th.

While organized by CCSI, these preparatory sessions benefit from input by the UNCITRAL Secretariat, as well as from external speakers (typically academics working on the relevant issue). Below are the agendas for these sessions, and to the extent available, links to materials collected and collated by CCSI and provided to delegates at these preparatory sessions.

45th Working Group III Preparatory Sessions (27-31 March 2023, New York)

• Proposed Multilateral Advisory Center (February 9, 2023): At its 38th session, WGIII garnered general support to consider the establishment of an advisory center, requesting preparatory work be undertaken. WGIII provided guidance on how to conduct the preparatory work, suggesting the Advisory Centre on WTO Law as a useful model. This session will allow government officials to consider the structure and scope of the proposed advisory centre, reflecting on how the centre should address the needs of the current international ISDS regime and respond to concerns including the cost of ISDS proceedings, correctness and consistency of decisions, and access to justice.
  • Resources:
    • UNCITRAL, Possible reform of investor-State dispute settlement (ISDS) Advisory Centre (2022)
    • CCSI: Securing Adequate Legal Defense in Proceedings Under International Investment Agreements: A Scoping Study (Nov. 2019)
    • Karl Sauvant, An Advisory Centre on International Investment Law: Key Features, 17 U. ST. THOMAS L.J. 354 (2021)   
    • Oduntan, G. Access to justice in international courts for indigent states, persons and peoples. Indian Journal of International Law 58, 265–325 (2018).
    • Nicolas Angelet, Karl Sauvant, et. al., Note on the Costs andFinancing of an Advisory Centre on International Investment Law       
    • Karl Sauvant and Federico Ortino, Extending International Legal Aid from Trade to Investment: An Advisory Centre on International Investment Law
• Damages, Third-Party Funding, and Costs (February 14, 2023): The WGIII has acknowledged concerns regarding the award of damages in ISDS, Third-Party Funding (TPF) and Costs. In the context of damages, concerns have been raised in relation to the steep increase in the amount awarded to claimants, with an average reaching USD$ 110.9 million. In their note published in September 2021, the WGIII has identified general issues crucial for determining damages that must be addressed in the reform process. These include the valuation methodology, including the controversial Discounted Cash Flow (DCF) method, causation, evidentiary requirements and interest. Additionally, the cost and duration of the proceedings have raised doubts as average costs exceed USD$8 million per part and duration averaging three to four years (A/CN.9/930/Rev.1, para. 36).                 
  
  Relatedly, the WGIII acknowledged concerns on the increased use of TPF and agreed to consider at future sessions whether or not it would be desirable to assess reform options on the subject. So far, reform options include (1) prohibiting the use of TPF in ISDS entirely and (2) regulating TPF through mechanisms that ensure transparency via disclosures, sanctions for failure to disclose, and the creation of rules.
  • Resources:
    • Damages
      • UNCITRAL, Note on the Assessment of damages and compensation
      • CCSI Resources, including webinars on Damages: Valuation and Damages in ISDS
      • CCSI and Partners WGIII Submission, Possible Reform of Investor-State Dispute Settlement (ISDS): The assessment of damages and compensation
      • IISD (Sarah Brewin), Compensation Under Investment Treaties (brief version here)
      • Bonnitcha, J., Langford, M., Alvarez-Zarate, J. M., & Behn, D., Damages and ISDS Reform: Between Procedure and Substance. Journal of International Dispute Settlement (2021)
      • Bonnitcha, J., & Brewin, S. (2019). Compensation Under Investment Treaties. International Institute for Sustainable Development, October.
      • Paparinskis, M, A Case Against Crippling Compensation in International Law of State Responsibility (2020)
      • Aisbett, Emma, and Jonathan Bonnitcha, A Pareto-Improving Compensation Rule for Investment Treaties (2021) 
    • Third-Party Funding
      • UNCITRAL, note on Third Party Funding
      • CCSI’s resources on Third Party Funding:  Third Party Funding in ISDS
    • Guven, B. Johnson, L. and Nikiema S, From transparency to prohibition: UNCITRAL WGIII considers options to regulate third-party funding
• Cross-Cutting Issues (March 1, 2023): At its 36th session, concerns were raised "underlining the importance of improving the global investment environment in a way that encouraged fairness and promoted investment policies in line with the three pillars of sustainable development.” 3 Such discussions on the “concerns and possible reforms of ISDS are of central importance to developing States that adopted such regime.”4 Accordingly, WGIII has identified a series of concerns relating to cross-cutting issues that should be addressed during the reform negotiations. Among these cross-cutting issues, our speakers will be talking about Reflective loss and multiple claims, third parties rights and regulatory chill and counter-claims and investors obligations.
  • Resources:
    • UNCITRAL, note on Multiple proceedings and counterclaims
    • CCSI, Access to Justice
    • UNCITRAL Working Group III on ISDS Reform: How Cross-Cutting Issues Reshape Reform Options
    • UNCITRAL, Shareholder Claims for Reflective Loss in Investment State Dispute Settlement: A “Component-by-Component” Approach to Reform Proposals (with draft model provisions reforming the law on reflective loss and commentary)
    • CCSI, IIED, IISD, “Third Party Rights in Investor-State Dispute Settlement: Options for Reform” (also available in Spanish)
    • Lorenzo Cotula, (Dis)integration in Global Resource Governance: Extractivism, Human Rights, and Investment Treaties
    • Lorenzo Cotula, Investment disputes from below: whose rights matter?
    • Nicolás M. Perrone, The international investment regime and local populations: Are the weakest voices unheard? 
    • Tan David Isidore and Willcocks Andrew, Parallel Proceedings
    • David Gaukrodger, Claims For Reflective Loss Under Investment Treaties
    • UNCITRAL, Possible reform of investor-State dispute settlement (ISDS) Shareholder claims and reflective loss (WP 170)
    • UNCITRAL and OECD, Webinar on Shareholder Claims and Reflective Loss (Agenda En, Fr)
    • Lorenzo Cotula and Nicolas Perrone, Reforming investor-state dispute settlement: what about third-party rights?
• Alternative dispute resolution (ADR) and dispute prevention (March 16, 2023): At its 38th session, WGIII agreed to undertake preparatory work on dispute prevention and means of alternative dispute resolution (ADR), supporting the need for mechanisms that prevent and reduce the frequency of investor-State disputes. This session will consider a number of dispute prevention and mitigation practices that are already in place in national and international mechanisms, their implications for the interests of developing countries, as well as whether and how forms of alternative dispute settlement could be promoted and more widely used.
  • Resources:
    • UNCITRAL, WP.190, Dispute prevention and mitigation - Means of alternative dispute resolution
    • Investor-State Mediation: An Opportunity to Advance Sustainable Outcomes (Jan. 2020)
    • CCSI, Investor-State Dispute Prevention: A Critical Reflection (2021) 
    • CCSI, Alternatives to Investor-State Dispute Settlement
    • Mavluda Sattorova, Jonathan Bonnitcha, Yuliya Chernykh, Josef Ostřanský.‘Preventing, mitigating and managing investor-state disputes’ Academic Forum on ISDS Concept Paper 2021/1, November 2021.

44th Working Group III Preparatory Sessions (23-27 January 2023, Vienna)

• Proposed Code of Conduct for Adjudicators (November 23, 2022): The Secretariats of ICSID and UNCITRAL have been jointly developing a Code of Conduct for adjudicators in international investment dispute proceedings. The most recent draft of the Code of Conduct was published in July 2022 with corresponding draft commentary. The Code and Commentary will be updated on the basis of the discussions at the 43rd session of WGIII and additional comments submitted to the Secretariat, and will be tabled for discussion at the 44th session of the Working Group scheduled for January 2023. This session will familiarize participants with key aspects of the Code of Conduct and highlight aspects of the Code and Commentary that are likely to be discussed in January, as well as supporting delegates to identify issues of importance to them that could be addressed within the context of the Code and Commentary. 
  • Resources:
    • South Centre, Informal Note on the Draft Code of Conduct (2021)
    • IISD The UNCITRAL Code of Conduct: Breakthrough or diversion? (2021)
    • Presentation - IISD, Code of Conduct for Adjudicators in International Investment Disputes
    • Drafting a Twenty-First Century Code of Conduct for International Investment Adjudicators (2021)
• Multilateral Permanent Investment Tribunal, Including Selection/Appointment of Adjudicators (December 2, 2022): In December 2021, ahead of the 42nd session of WGIII in February 2022, the Secretariat published a note containing “draft provisions covering the selection and appointment of ISDS tribunal members as well as interrelated topics on the establishment and functioning of a standing multilateral mechanism.” This session will guide participants through the myriad outstanding questions and issues with respect to a standing multilateral mechanism, including those related to jurisdiction, governance, adjudicators, applicable law, and rules and procedures, among others.
  • Resources:
    • Danish and Daniel Uribe, The Proposed Standing Multilateral Mechanism and Its Potential Relationship with the Existing Universe of Investor – State Dispute Settlement
    • Selection and Appointment of International Adjudicators: Structural Options for ISDS Reform (2019)
    • CCSI, Proposed Standing Multilateral Mechanism for Investor-State Disputes: Navigating the Negotiations 
    • European Commission, Multilateral Investment Court project
• Appellate Mechanism (December 9, 2022): Alongside discussions concerning the creation of a multilateral permanent investment tribunal, WGIII has also focused discussions around a possible appellate mechanism for ISDS disputes. This session will support participants to engage in discussions around a proposed appellate mechanism, including with respect to the institutional framework, criteria for appeals, and the impacts on and intersections with other institutional arrangements and judicial decisions.
  • Resources:
    • IISD, UNCITRAL Working Group III Debate: Enforceability of awards by an appellate mechanism or an investment court under the ICSID and New York Conventions
    • UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Appellate mechanism - advance copy
    • The South Centre, Grace Estrada, Appeal in ISDS: Appealing for the Host State?
• Multilateral Instrument to Implement Reforms (January 17, 2023): The WGIII Secretariat has proposed a multilateral instrument to implement reforms to provide a framework for implementing multiple reform elements. In this session, participants will be supported to think through the elements and structure of such a multilateral instrument, and in particular, will learn from experiences of other multilateral instruments that have reformed elements of international economic governance. 
  • Resources:
    • CCSI, CAROLA, Harriston Institute for Public Law (Georgetown Law), Reforming the International Investment Regime through a Framework Convention on Investment and Sustainable Development (Submission to WG III, 2020)
    • Jane Kelsey and Kinda Mohamadieh, UNCITRAL Fiddles While Countries Burn (September 2021)
    • Wolfgang Alschner, The OECD Multilateral Tax Instrument: A Model for Reforming the International Investment Regime? (January 2019)
    • Anthea Roberts and Taylor St John, Complex Designers and Emergent Design: Reforming the Investment Treaty System (September 2021)
    • UNCITRAL Secretariat, Possible reform of investor-State dispute settlement (ISDS) Multilateral instrument on ISDS reform (A/CN.9/WG.III/WP.221)

39th Working Group III Session Preparatory Session (virtual online series; 11 June 2020 - 29 September 2020 )

• Frivolous claims and security for costs (June 11, 2020)
  • Agenda
• Treaty interpretation by states parties (July 1, 2020) 
  • Agenda
• Reflective loss and shareholder claims (July 23, 2020)
  • Agenda
  • Reference materials
• Multiple proceedings, including counterclaims (August 6, 2020 )
  • Agenda
• Dispute prevention and mitigation as well as other means of dispute resolution (August 26, 2020) 
  • Agenda
• ISDS Reform Multilateral Implementations Options (September 8, 2020)
  • Agenda
  • Reference materials
• Damages (September 29, 2020)
  • Agenda
  • Reference materials

Resumed 38th Working Group III Session Preparatory Session (18-19 January 2020, Vienna) 

Day 1 Agenda: 

• Diving Deeper into the Nature of an investment court - Design elements 
  • Designing a Multilateral Investment Court: Issues and Options, with Rob Howse, New York University School of Law 
  • Diving Deeper into the Nature of an Investment Court - Design Elements, with Theresa Squatrito, London School of Economics 
• Appellate Options 
  • Finding the “sweet - spot” between yesterday's WTO & today's ISDS?, with Joost Pauwelyn, Graduate Institute of International and Development Studies and Georgetown University Law Center.  
    • https://www.dropbox.com/home/Preparatory%20Workshop%20for%2038th%20Session%20(Resumed)%20of%20UNCITRAL%20WGIII/Presentations?preview=Pauwelyn+-+UNCITRAL+Vienna.pdf
  • Gabrielle Marceau, Office of Legal Affairs, WTO 
• Adjudicator Selection and appointment 
  • David Gaukrodger, OECD
  • Selection and Appointment in International Adjudication, with Taylor St John, University of St. Andrews 
    • https://www.dropbox.com/home/Preparatory%20Workshop%20for%2038th%20Session%20(Resumed)%20of%20UNCITRAL%20WGIII/Presentations?preview=St+John_for+CCSI+GIZ%2C+Jan+2020.pdf
  • Michael Waibel, University of Vienna 

Day 2 Agenda: 

• Enforcement issues and combination options 
  • The Challenge of Enforceability: Appellate Mechanisms and Investment Courts, with Jansen Calamita, National University of Singapore 
    • https://www.dropbox.com/home/Preparatory%20Workshop%20for%2038th%20Session%20(Resumed)%20of%20UNCITRAL%20WGIII/Presentations?preview=Jansen+-+UNCITRAL-CCSI+Presentation+on+Enforceability+of+App+Mech+and+Investment+Court+(Jan+2020)+v2+(clean).pdf 
• Panel discussion on structural reform options: focus on issues and concerns relevant to developing countries
  • Structural Reform of ISDS: The Establishment of a Multilateral Investment Court, with Colin Brown, European Commission
    • https://www.dropbox.com/home/Preparatory%20Workshop%20for%2038th%20Session%20(Resumed)%20of%20UNCITRAL%20WGIII/Presentations?preview=Brown+-+UNCITRAL+WGIII+Vienna+Jan+2020+(final).pdf
  • Structural Reforms of the Dispute Settlement System under the OIC Investment Treaty, with Mouhamadou Kane, Organisation of Islamic Cooperation 
    • https://www.dropbox.com/home/Preparatory%20Workshop%20for%2038th%20Session%20(Resumed)%20of%20UNCITRAL%20WGIII/Presentations?preview=Kane+-+CCSI+Side+Event_WGIII_Vienna+Jan+2019.pdf 
  • Kinda Mohamadieh, Third World Network 
  • Theresa Squatrito, London School of Economics 

Relevant Materials

• Adjudicators
  • Andrea Bjorklund, Marc Bungenberg, Manjiao Chi, Catharine Titi, Selection and Appointment of International Adjudicators: Structural Options for ISDS Reform, Academic Forum Concept Paper (2019)
  • David Gaukrodger, Adjudicator Compensation Systems and Investor-State Dispute Settlement, OECD Working Paper (2017)
  • David Gaukrodger, Appointing Authorities and the Selection of Arbitrators in Investor-State Dispute Settlement: An Overview, OECD Consultation Paper (2018)
  • Gabrielle Kaufmann-Kohler and Michele Potestà, The Composition of a Multilateral Investment Court and of an Appeal Mechanism for Investment Awards, CIDS Supplemental Report (2017)
  • Malcolm Langford, Daniel Behn, and Maria Chiara Malaguti, The Quadrilemma: Appointing Adjudicators in Future Investor-State Dispute Settlement, Academic Forum Concept Paper (2019)
  • Olof Larsson, Theresa Squatrito, Øyvind Stiansen, Taylor St. John, Selection and Appointment in International Adjudication: Insights from Political Science, Academic Forum Concept Paper (2019)
  • Michael Waibel, Arbitrator Selection: Towards Greater State Control
  • Michael Waibel and Yanhui Wu, Are Arbitrators Political? Evidence from ICSID Arbitration (2019)
• Enforcement
  • August Reinisch, Will the EU’s Proposal Concerning an Investment Court System for CETA and TTIP Lead to Enforceable Awards? -- The Limits of Modifying the ICSID Convention and the Nature of Investment Arbitration (2016)
  • Albert Jan van den Berg, Appeal Mechanism for ISDS Awards: Interaction with the New York and ICSID Conventions, ICSID Review (2019)
• First Instance Court and Appellate Mechanism
  • The Legitimacy of International Trade Courts and Tribunals, Rob Howse, Hélène Ruiz-Fabri, Geir Ulfstein, Michelle Q. Zang, eds. (2018)
  • Colin M. Brown, A Multilateral Mechanism for the Settlement of Investment Disputes. Some Preliminary Sketches, ICSID Review (2017)
  • Submission of the European Union and its Member States to UNCITRAL Working Group III: Establishing a standing mechanism for the settlement of international investment disputes (WP.159 and Add.1) (2019)
  • Germany in cooperation with the European Commission, The Case for a Multilateral Investment Court: Why it is needed and how it could be structured, 16 Questions and Answers
  • Rob Howse, Designing a Multilateral Investment Court: Issues and Options, Yearbook of European Law (2017)
  • Theresa Squatrito, Resourcing Global Justice: The Resource Management Design  of International Courts, Global Policy (2017)
• Reform Implementation Mechanisms
  • Gabrielle Kaufmann-Kohler and Michele Potestà, Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and roadmap, CIDS (2016)
  • Stephan W. Schill and Geraldo Vidigal, Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis, Law &  Practice of Int’l Courts &  Tribunals (2019)
  • UNCITRAL Secretariat, Multilateral Instrument on ISDS reform (WP.194) (2020)
• Short Reflection Pieces
  • David Gaukrodger, Who chooses the judges (and should they)?: The selection of adjudicators in investor-state dispute settlement, OECD On the level (2018)
  • Nico Krisch, Institutionalizing Subsidiarity in the Reform of Investment Adjudication (2020)
  • Xuechan Ma and Shuai Guo, Are ICJ judges biased? Leiden Law Blog (2018)
  • Gus Van Harten, ISDS in the Revised CETA: Positive Steps, But Is It a “Gold Standard”? CIGI (2016)
  • FDI Perspectives 
    • Herfried Wöss, Legitimacy in WTO law and investment arbitration: the role of the contracting parties (No. 144, 2015)
    • Anna Joubin-Bret, Why we need a global appellate mechanism for international investment law (No. 146, 2015)
    • Joachim Karl, An appellate body for international investment disputes: How appealing is it? (No. 147, 2015)
    • John P. Gaffney, When is investor-state dispute settlement appropriate to resolve investment disputes? An idea for a rule-of-law ratings mechanism (No. 149, 2015)
    • Nicolás M. Perrone and Gustavo Rojas de Cerqueira César, Brazil’s bilateral investment treaties: More than a new investment treaty model? (No. 159, 2015)
    • Anthea Roberts and Richard Braddock, Protecting public welfare regulation through joint treaty party control: a ChAFTA innovation (No. 176, 2016)
    • M. Sornarajah, An International Investment Court: panacea or purgatory? (No. 180, 2016)
    • Gabrielle Kaufmann-Kohler and Michele Potestà, Challenges on the road toward a multilateral investment court (No. 201, 2017)
    • Julien Chaisse and Matteo Vaccaro-Incisa, The EU investment court: challenges on the path ahead (No. 219, 2018)
    • Rishi Gulati and Nikos Lavranos, Guaranteeing the independence of the judges of a Multilateral Investment Court: A must for building the Court’s credibility (No. 262, 2017)
    • Orlando F. Cabrera C., The US-Mexico-Canada Agreement: the new gold standard to enforce investment treaty protection? (No. 269, 2020)

38th Working Group III Session Preparatory Session (12-13 October 2019, Vienna)

Day 1 Agenda:

• Part I: Overview of Developments to Date 
  • UNCITRAL and its method, with Judith Knieper, UNCITRAL Secretariat
  • An overview of Working Group III’s process to date and insights from the Commission sessions and intersessionals, with Lise Johnson and Brooke Guven, Columbia Center on Sustainable Investment
• Part II: Concerns and Potential Reforms: Focus on Issues Identified for Inter-sessional Work 
  • Potential reform solutions: an overview, with Corinne Montineri, UNCITRAL Secretariat
• Investment law advisory center or other assistance mechanisms: 
  • UNCITRAL Secretariat Background Paper, WP.168 on an Advisory Centre, with Judith Knieper, UNCITRAL Secretariat
  • Presentation of Securing Adequate Legal Defense in Proceedings Under International Investment Agreements: A Scoping Study with Lise Johnson
• Third Party Funding: 
  • UNCITRAL Secretariat Background Paper, WP.172 on Third-Party Funding, with David Probst 
  • Presentation of Draft Text Providing for Transparency and Prohibiting Certain Forms of Third-Party Funding in Investor-State Dispute Settlement, with Brooke Guven, Columbia Center on Sustainable Investment 
• Selection and appointment of adjudicators:
  • UNCITRAL Secretariat Background Paper, WP.169 on Selection and appointment of ISDS Tribunal Members, with Corinne Montineri, UNCITRAL Secretariat
  • Presentation of Academic forum paper: Selection and Appointment in International Adjudication: Insights from Political Science, with Taylor St. John, University of St. Andrews
  • Presentation with Marc Bungenberg, Saarsland University 

• Codes of conduct for adjudicators and counsel – standards, rules, and enforcement thereof
  • UNCITRAL Secretariat Background Paper on Background information on a code of conduct (with compilation of information on codes of conduct Part I and Part II) with Jae Sung Lee, UNCITRAL Secretariat 
  • Catherine A. Rogers, Penn State University 
• Parallel claims and reflective loss
  • UNCITRAL Secretariat Background Paper, WP.170 on Shareholder claims and reflective loss, with Jae Sung Le, UNCITRAL Secretariat

Day 2 Agenda:

• Part III: Possible Reforms and Practical Considerations
  • Reform options and their contributions to identified concerns and cross- cutting issues
• Options and practical relating to methods of work: whether/how to prioritize, sequence, delegate, etc
  • A model for reforming IIAs? The example of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS, with Irma Mosquera Valderrama, Leiden University

Relevant Materials: 

• Marc Bungenberg and August Reinisch, From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court: Options Regarding the Institutionalization of Investor-State Dispute Settlement, European Yearbook of International Economic Law (2019)
• Olof Larsson, Theresa Squatrito, Øyvind Stiansen, Taylor St. John, Selection and Appointment in International Adjudication: Insights from Political Science, Academic Forum Concept Paper (2019)
• CCSI, Reform Option: Counterclaims (2019)
• CCSI, Concern: Frivolous Claims (2019)
• CCSI, Reform Option: Greater State Control Over Treaty Interpretation and Application (2019)
• CCSI, Concern: Third-Party Funding (2019)
• UNCITRAL Secretariat Background Paper, WP.170 on Shareholder claims and reflective loss

37th Working Group III Session Preparatory Session (29-30 March 2019, New York): 

Day 1 Agenda:  

• An overview of Working Group III’s process to date and insights from intersessionals 
• The upcoming WGIII meeting – “Third Party Funding” 
  • Third Party Funding in ISDS, with Brooke Guven, CCSI 
• The upcoming WGIII meeting – Are there “other concerns”?

Day 2 Agenda: 

• An overview of UNCITRAL and Working Group III 
• Workplans: An overview and discussion of state workplan submissions 
• Considering Phase III of the Working Group’s ISDS Reform Mandate: Overview of issues, options and proposals for reform – framing, principles, objectives and option
  • Claims for Reflective Loss under Investment Treaties, with David Gaukrodger, OECD
  • Investor Protections: Options and Proposals for Reform, with Manuel F Montes, South Centre
  • Benedict Kingsbury, New York University School of Law
  • Flexible Approaches to ISDS Reform, with Matt Porterfield, Georgetown University
• Looking more closely at certain reform proposals
  • Multilateral Investment Court, with Marc Bungenberg, Saarland University
  • Appellate Body, with Marc Bungenberg, Saarland University
  • Procedural Reforms and Investor rights and obligations, with Lorenzo Cotula, International Institute for Environment and Development
  • Exploring limits on access to ISDS (e.g., exhaustion, restricting claims, filters, pleading standards), with Matthew Porterfield, Georgetown University
  • Termination and withdrawal of consent, with Matthew Porterfield, Georgetown University

36th Working Group III Session Preparatory Session (27-28 October 2018; Vienna)

Day 1 Agenda:

• An overview of UNCITRAL and Working Group III
• An overview of Working Group III’s process to date
• What to expect - the 36th session agenda
• Looking more closely at past discussions 
• Group brainstorm: What has/has not been covered in terms of cataloguing issues? 
• Some concerns regarding ISDS and possible reform options, with Marc Bungenberg, Saarland University

Day 2 Agenda: 

• Overview and discussion of other (non-Secretariat) documents submitted for WGIII’s 36^th Session
• Group discussion on Phase II: Whether reforms are desirable for issues addressed 

CCSI hosted two stakeholder sessions on the UNCITRAL ISDS Reform Process. The general public was invited to present views on ISDS reform at UNCITRAL to government negotiators.

• April 23, 2018, Stakeholder Session on UNCITRAL ISDS Reform Process (New York)
• October 31, 2018, Stakeholder Session on UNCITRAL ISDS Reform Process (Vienna)