The Present and Future of Investor-State Dispute Settlement (ISDS) Reform


The system of investor-state dispute settlement (ISDS) has aroused much controversy and backlash in recent years. Efforts for reform have been made by European Union, the United Nations Commission on International Trade Law (UNCITRAL), the International Centre for the Settlement of Investment Disputes (ICSID), and other stakeholders to respond to the public criticism. What are the points of friction that trigger public criticism against ISDS? What is the status of the reform options currently being discussed? What are the prospects of ISDS reform? This panel explored the ongoing efforts of ISDS reform from different institutions (including ICSID, UNCITRAL Working Group III on ISDS Reform) and probes public opinion on ISDS through behavioural experiments.

Ms Meg Kinnear, Secretary General of ICSID, discussed ICSID’s rules amendment project, including including time and costs, increased transparency, third party funding, expedited arbitration and the new mediation rules. Professor Chiara Giorgetti shared the development of the Code of Conduct for Adjudicators, as part of the UNCITRAL Working Group III on ISDS reform. The draft Code of Conduct addresses a number of sensitive issues in the ISDS critique, such as repeat appointment, issue conflict and double hatting. Dr Maria Laura Marceddu explored the roots of the public criticism on investment arbitration through a set of behavior experiments. Dr. Lu Wang moderated the panel discussions. As commentator, Prof. Kun Fan raised a number of issues to the panel, including the potential impact of improvement in substantive law in public opinion, the role of multilateral investment court or appellate body in the reform agenda, whether investor-state mediation could be a partial response to some criticisms of the ISDS, and challenges in implementation and enforcement of the code of conduct for adjudicators. The panel further addressed the impact of current reform initiatives, the direction it is taking, etc. 


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