Submission by the Corporate Counsel International Arbitration Group (CCIAG) to UNCITRAL Working Group III - Investor-State Dispute Settlement (ISDS) Reform - 18 December 2019
I. Introduction and Executive Summary
1. The Corporate Counsel International Arbitration Group (CCIAG) is an association of corporate counsel from a broad variety of international companies focused on international arbitration and dispute resolution. The CCIAG offers this submission as an observer in UNCITRAL Working Group III. In this submission, we articulate the views of a wide range of investors that have experience using investor-state dispute settlement (ISDS) and that consider the availability of ISDS to be an important consideration in their decisions to invest abroad.
2. This submission is divided into four main parts. In Section I, we establish the importance of foreign investment to global economic growth and public welfare. In order to maintain these benefits, governments need to take proactive steps to cultivate an environment conducive to foreign investment, including ensuring access to neutral, independent dispute settlement procedures. In Section II, we survey the current ISDS landscape and offer our views on the three essential features of the current system: (1) ensuring balance between the investor and the respondent state; (2) ensuring balance between consistency, correctness, and finality; and (3) ensuring that arbitral awards are enforceable. In Section III, we comment on two ISDS reform proposals put forward for discussion at the second stage of the 38 th session of the working group in January 2020: the proposed multilateral investment court and appellate mechanism. In our view, these proposals are fundamentally contrary to the interests of both states and investors. They would significantly undermine investor confidence and reduce global investment flows. Finally, in Section IV, we offer our support for numerous ISDS reforms that governments have proposed in the working group, including a multilateral advisory center, a code of conduct for arbitrators, and regulation of third-party funding.
3. The CCIAG and the investor community fully support ISDS reforms that will improve the fairness and efficiency of the dispute settlement system for all stakeholders. We are grateful for the opportunity to make this submission and to observe these important discussions in the working group regarding ISDS reform.