In the meantime, ISDS continues to provide foreign investors with an exclusive mechanism through which they can directly sue host states and challenge governmental action, including non-discriminatory regulations.
This paper analyses the work of UNCITRAL WG III through a development lens, addressing the issues at a macro-level, the WG’s approach at an institutional level, and specific issues of significance that are of particular concern to developing countries. It shows that the failure of WGIII to make effective advances towards urgently needed reforms can be traced back to several factors, notably its narrow interpretation of the UNCITRAL mandate to cover a limited set of procedural issues, the prescriptive agendas that have limited the range of issues being discussed and side-lined a range of concerns raised by developing countries, and the procedures adopted before and during the Covid-19 pandemic. The authors propose that an effective consideration of the developmental implications of ISDS requires freeing the mandate given to WGIII from the narrow interpretation adopted to date and taking a serious look at alternatives to arbitration as means to settle investment disputes.
The launch included presentation of the main messages of the paper by the two authors:
A panel of commentators including developing country delegates, and representatives from civil society and academia, also shared their views.
The event was moderated by Yvonne Bartmann, senior program officer, FES Geneva office.