During the week of 22 September 2025, States once again met in Vienna under Working Group III (WGIII)...
The global transition to renewable energy systems will be mineral intensive and, under the current linear economy conditions,...
Delegates in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III have concluded that investor-state dispute settlement (ISDS) has several problems serious and systemic enough to merit reform at the multilateral level. One of those issues is that ISDS decisions and awards pronounce inconsistent outcomes on a range of issues. Critics and supporters of ISDS alike have, not surprisingly, highlighted differing decisions as an issue (or symptom of a problem) in the current ISDS system that needs to be addressed. Because of this legal uncertainty, both regulatory conduct by states and investment decisions by private sector actors may be unduly chilled, and disputing parties must spend unnecessary time and money litigating and re-litigating the same legal questions. Indeed, the only “stakeholder” that arguably benefits from this inconsistency is the arbitration industry.
The issues regarding consistency fall into several different, sometimes overlapping, categories: There is the issue of divergent interpretations of the same treaty; the issue of inconsistent interpretations of the same or similar provisions across treaties; the issue of arbitral decisions that are inconsistent with state party intent; and the issue of arbitral decisions that are inconsistent with broader societal objectives and commitments, including the Sustainable Development Goals (SDGs), international treaty commitments, or other areas of domestic or international law. Each of these types of inconsistency merits attention and consideration of appropriate reforms. It may be that some types of reform might reduce one aspect of inconsistency but expand the others.
This briefing note uses a particular example of inconsistency – in which two different tribunals heard claims arising out of the same facts but came to opposite conclusions about whether the state was liable and had to pay – to further explore the nature of the different inconsistency problems, and the promise and peril of different reform solutions.
