UNCITRAL and ISDS Reform: Visualising a Flexible Framework

11 Pages Posted: 4 Nov 2019

See all articles by Anthea Roberts

Anthea Roberts

School of Regulation & Global Governance (RegNet)

Taylor St John

University of St Andrews

Date Written: October 23, 2019

Abstract

In UNCITRAL, states have broken through the impasse of the incrementalist and systemic reformer camps. They have all agreed that they want to pursue systemic reform, but they have different ideas about what that entails and what to prioritise. In broad terms, agreement seems to be coalescing around three main blocks of reforms: updating some of the procedural rules; enacting some sort of optional structural changes for dispute settlement; and creating a mechanism to support developing states with handling their treaties and disputes. Not every state is supportive of every proposal, but most seem open to pursuing all three in a (somewhat) simultaneous fashion.

That leaves an important question, which is starting to bubble up on the side lines of the negotiations: how might these different reforms fit together? Instead of treating the proposals as oppositional, could a flexible framework be developed that would allow multiple reforms to be developed over time in order to create a more holistic approach? What would this look like? What are the component parts or building blocks and how might they fit together?

Here we provide our initial thoughts on how to visualise a flexible framework for ISDS reform and how these more centralised reforms might operate within the wider more decentralised field. The framework we present is not simply a descriptive synthesis of the discussions to date, but rather a way to look at the various options raised in their entirety — including how they overlap and relate to one another.

Keywords: ISDS reform; investor-state arbitration; investment law; institutional design

Suggested Citation

Roberts, Anthea and St John, Taylor, UNCITRAL and ISDS Reform: Visualising a Flexible Framework (October 23, 2019). Available at SSRN: https://ssrn.com/abstract=3474284 or http://dx.doi.org/10.2139/ssrn.3474284

Anthea Roberts

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200
Australia

Taylor St John (Contact Author)

University of St Andrews ( email )

Arts Building
The Scores
St Andrews, KY169AX
United Kingdom

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