Van Bael & Bellis assists and represents the Republic of Benin at the 36th session of UNCITRAL's Working Group III on Investor-State Dispute Settlement Reform
Van Bael & Bellis associate Quentin Declève assisted and represented the Republic of Benin during the 36th session of Working Group III (the “Working Group”) of the United Nations Commission on International Trade Law (“UNCITRAL”).
In July 2017, the UNCITRAL Commission granted the Working Group a broad mandate to work on the possible reform of investor-State dispute settlement (“ISDS”). That mandate was divided into three distinctive stages: (i) identify and consider concerns regarding ISDS; (ii) consider whether reform was desirable in light of any identified concerns; and (iii) if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the UNCITRAL Commission.
The first phase of the mandate was initiated in November 2017 (in Vienna) and was completed in April 2018 (in New York City). At the end of that first phase, the Working Group identified a list of procedural and structural concerns with ISDS, relating to: (i) concerns pertaining to consistency, coherence, predictability and correctness of arbitral decisions by ISDS tribunals; (ii) concerns pertaining to arbitrators and decision makers (including their impartiality and independence, the existence of conflicts of interests and issues of “double hatting”); and (iii) concerns pertaining to cost and duration of ISDS cases.
Meeting in Vienna from 29 October 2017 until 2 November 2018, the Working Group initiated and completed the second stage of its mandate and found that these concerns about ISDS were serious enough to merit reform. The Working Group is now expected to start working, in April 2019 in New York, on a work plan that will be followed throughout the third phase of its mandate.
The discussions taking place within the Working Group are crucial for the future of ISDS. Possible options for reform range from soft law to more systemic approaches such as the establishment of a multilateral investment court proposed by the European Union and its Member States.
In a statement made on behalf of the Republic of Benin, Quentin Declève emphasized Benin's willingness to work on a systemic reform of ISDS and to push for the establishment of a multilateral investment court.
The assistance and representation offered by Van Bael & Bellis to the Republic of Benin is part of Van Bael & Bellis' pro bono programme.