Report on the meeting of UNCITRAL WG III in Vienna 22-26 January 2024

UNCITRAL’s Working Group III (“WG III”) on Investor-State Dispute Settlement Reform met in Vienna from 22 to 26 January 2024. WG III had two main items on its agenda: “Draft statute of an advisory centre” and “Draft provisions on procedural and cross-cutting issues”. The deliberations were a continuation of the discussions at the previous session in which the same items were discussed.

Since 2004, CEPANI is represented in UNCITRAL’s Working Group II on Dispute Settlement. As of 2023, CEPANI is represented in UNCITRAL’s Working Group III.

Advisory Centre

The first item on the agenda of WG III related to the proposed establishment of an Advisory Centre on International Investment Law (“Advisory Centre”), and a set of provisions relating to a draft statute. The Advisory Centre would be mandated “to provide technical assistance and capacity-building with regard to international investment law and investor-State dispute settlement (ISDS) and provide legal support and advice with regard to ISDS proceedings, including representation services” (Draft Provision 2).

At the present session, much of the discussion on the establishment of an Advisory Centre had centered around organizational and structural questions such as financing, fee structure, the role and function of the Governing Committee, the appointment, role, function, and mandate of the Executive Director, and the activities of the Advisory Centre more generally. 

Specific points raised included notably the required majority for decision-making by the Governing Committee, the technical assistance to be provided for by the Centre, the question whether the Advisory Centre should also be involved in state-to-state dispute settlement, the precise activities the Centre could or should be involved in (technical assistance and capacity-building), and the access of non-Members (States and regional economic integration organisations) to the Centre and its activities (as a matter of principle, or the conditions under which such access could be granted).

In relation to the question whether non-Member non-States ((M)SMEs) could access the Centre, the proposal made was to remove assistance with regard to ISDS proceedings. However, even the access of (M)SMEs to technical assistance and capacity-building (Draft provision 6 (4)) created disagreement among the States in WGIII. It was in the end agreed that the Executive Director could allow Non-Members to participate in technical assistance and engage in capacity-building activities, and that other persons or entities ((M)SMEs) could also participate in a limited set of the Centre’s activities, such as those relating to the holding seminars and conferences, the functioning as a forum for the exchange of information and sharing of best practices, and functioning as a repository of information and related resources (Draft provision 6 (1) (c)-(e).

Discussions, finally, also addressed the financing of the Centre, the fees to be charged, and the classification of member States.

The Working Group agreed that the remaining articles and the Annexes would be addressed at the next session, including overarching questions such as location of the Centre and its position within the United Nations system.

Draft provisions on procedural and cross-cutting issues

The second item on the agenda of WG III were the “Draft provisions on procedural and cross-cutting issues”. These draft provisions were not discussed, as most of the session revolved around the proposed establishment of an Advisory Centre. It was however decided that the Secretariat should classify the draft provisions into those that could supplement the UNCITRAL Arbitration Rules,  those that could function as model provisions for States to include in their  investment treaties, and those that were truly cross-cutting in nature.

Belgium hosts the 7th Intersessional Meeting of UNCITRAL WG III on 7 and 8 March 2024

Belgium is hosting the 7th Intersessional Meeting of UNCITRAL WG III., on 7 and 8 March 2024 at the Egmont Palace in Brussels. The theme of the Intersessional Meeting is "Improving Access to Justice for All".

The programme is available here, and features (TBC) opening remarks by the Belgian Minister of Foreign Affairs Hadja Lahbib, UNCITRAL Secretary Anna Joubin-Bret, and UNCITRAL WG III Chair Shane Spelliscy. The intersessional will cover various topics, and is divided into four panels. Panel I covers "Access to Justice in the context of ISDS", Panel II addresses the "Standing Mechanism", Panel III focuses on the "Establishment of an Advisory Center", and finally, Panel IV will tackle the "Procedural Rules Reform".