UNCITRAL WGIII to consider proposals on various elements of ISDS reform while the outcome of the request for additional funding remains to be seen
As we reported, UNCITRAL WGIII on ISDS reform held its 40th session in May 2021, at which time delegates discussed a draft work and resourcing plan. Following this session, during which the document was adopted via silent procedure, the UNCITRAL Commission discussed the request for additional funding from the UN General Assembly in order to implement the draft working and resourcing plan during its 54th Session, held from June 28 to July 16, 2021.
During the UNCITRAL Commission session, the proposal to request additional funding was supported by a majority of states including most developing countries, the EU, Canada, and Australia. However, the proposal failed to reach the required consensus due to the resistance of other states, such as Russia, Belarus, Iran and Bahrain. The decision on the proposal for a request for additional resources was submitted to the silent procedure. Additionally, several states, particularly developing countries, used the Commission meeting to reiterate concerns regarding the content of the revised work plan, including the need to accord sufficient time to cross-cutting issues and damages.
While the final approval of the request for additional funds to the UN General Assembly has not yet been made official, the WGIII Secretariat continues to advance its work.
This has included an informal webinar organized with the Academic Forum on Damages in ISDS on August 26, 2021, and the Intersessional Meeting on Procedural Rules Reform (virtual) hosted by the Republic of Korea from September 2 to 3, 2021.
Additionally, the WGIII is also advancing with the drafting process on a number of areas of reform highlighted in the last version of the working and resources plan, discussed at the 40th Session. To that end, the UNCITRAL Secretariat has released a set of documents to be discussed in the coming months. These include:
- Assessment of damages and compensation
- Mediation and other forms of alternative dispute resolution
- The establishment of an advisory centre
- The selection and appointment of ISDS tribunal members
- Third-party funding of ISDS claims.
Documents related to these issues are open for comments, with deadlines for submissions between September 15 and December 31, 2021, as presented in the table below
| Title | Content | Deadlines for submissions/comments |
| Initial Draft on the Regulation of Third-Party Funding | Draft provisions reflecting various models of regulation and accompanied by general remarks and specifics comments | September 15, 2021 |
| Initial Draft on the Establishment of an Advisory Centre; and its addendum 1 | Preparatory work on the possible structure, scope of services, beneficiaries, costs, and financing
|
September 15, 2021 |
| Draft Code of Conduct for Adjudicators in International Investment Disputes Version Two (jointly with ICSID) | Full draft text with explanatory of changes in this second version | No date specified |
| Draft Note on the Implementation and Enforcement of the Code of Conduct (jointly with ICSID) | Outlines of various implementation options of the Code as a binding instrument, as well as possible sanctions for noncompliance that could be further developed | No date specified |
| Initial draft on standing multilateral mechanism: the selection and appointment of ISDS tribunal members and related matters | Draft provisions reflecting various options, accompanied by general remarks and specifics comments | November 15, 2021 |
| Initial draft on assessment of damages and compensation | Outlines of key issues, existing legal principles and methodologies on the assessment of damages and the determination of compensation | November 30 |
| Initial draft on mediation and other forms of alternative dispute resolution (ADR); and its addendum 1 | Draft provisions reflecting various options, accompanied by general remarks and specifics comments; as well as guidelines for effective use of mediation | December 31, 2021 |
We discuss the draft on TPF at greater length in an Insight article here.