UNCITRAL Reform Process on ISDS: Comment from Arbitrator’s Perspective

Corinne Montineri provides an excellent account of what has happened in UNCITRAL’s Working Group III since 2017. It is indeed a very difficult task to distil from the work of Working Group III the main issues and this has been perfectly achieved. Before commenting on some specific points highlighted by Ms. Montineri allow me a general comment on one of the underlying difficulties that seem to be encountered by Working Group III when it concluded the second step, its identification of problems, and is now moving towards possible solutions. The closer this third step, the more evident a certain tension becomes: a tension between the flexibility of solutions for all members, as advocated by Working Group III, and the idea of creating a multilateral investment court (MIC) which will effectively function only if it is not flexible like the current arbitration system. Let me now make some specific comments on the identified concerns regarding ISDS, in regard to 1. inconsistent and ‘incorrect’ outcomes, 2. the independence and impartiality of arbitrators, challenge mechanisms and diversity, as well as 3. costs and allocation of costs in ISDS as well as concerns in regard to third-party funding: