United Nations Commission for International Trade Law (UNCITRAL)
FIRST DISCUSSIONS ON DAMAGES IN THE INVESTOR-STATE DISPUTE SETTLEMENT SYSTEM AT UNCITRAL WORKING GROUP III
By José Manuel Alvarez Zárate
This paper summarises the history of initial discussions within UNCITRAL Working Group III (WG.III) on the reform of investor-state dispute settlement (ISDS) regarding the lack of correctness, consistency and predictability of compensation awards. It covers the period up to 2022, beginning with the initial concerns expressed by some countries of the Global South regarding the methodologies used to assess damages and the Draft on Damage Assessment and Compensation prepared by the UNCITRAL Secretariat, which served as the basis for subsequent discussions among the members of WG.III. It then describes the comments made by some states and observers on this draft and the discussions that ensued, including the discussion of damages as part of the issues of ISDS reform. A second paper on this topic will describe the period from September 2022 to the publication by the Secretariat of the second draft of procedural and cross-cutting issues on July 8, 2024.
The purpose of this paper is to provide Global South States with a track record of the main concerns expressed by States on various aspects of damages during the discussions in UNCITRAL WG.III, which have often been lost at some point during the long process of discussions on ISDS reform.
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Discussions on Draft Provisions on Damages in the Investor-State Dispute Settlement System in UNCITRAL Working Group III
By José Manuel Alvarez Zárate
This paper summarizes the discussions within the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WG III) on the reform of investor-state dispute settlement (ISDS) regarding the two draft provisions on damages prepared by the UNCITRAL Secretariat as part of the two drafts on procedural and cross-cutting issues. It covers the period from September 2022 to July 8, 2024. It describes the draft provisions on damages and related provisions on procedural and cross-cutting issues of document A/CN.9/WG.III/WP.231, dated 26 July 2023, as well as the comments made on it by some members of WG III and observers. It also describes the changes to the above document contained in the second draft on the procedural and cross-cutting issues, dated July 8, 2024, contained in document A/CN.9/WG.III/WP.244.
The purpose of this paper is to provide an overview of the comments made by some States on the draft provisions on damages, the substantive changes made by the Secretariat to the first draft, mostly based on the comments made by some States, and the exclusion of important aspects highlighted by some Global South States in their interventions. In the light of this review, countries of the Global South may consider commenting on document A/CN.9/WG.III/WP.244 to ensure that their concerns are effectively taken into account.
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Jamaica’s Perspective on Reform of the Global Investment Regime
By Omar Chedda
The Covid-19 pandemic has dealt a severe blow to the world economy, and in particular, Jamaica’s economy, due to supply chain bottlenecks and reduction of tourism, on which Jamaica is heavily dependent. This is the context in which Jamaica is now reviewing its investment regime to ensure that investments contribute to recovery, building resilience and sustainable development, while improving investor rights and obligations in line with global trends.
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Potential Claims related to IP and Public Health in Investment Agreements: COVID-19, the Proposed TRIPS Waiver and Beyond
By Cynthia Ho
An under-examined issue during the COVID-19 crisis is the potential liability of countries under investment agreements for taking steps to mitigate COVID issues. This Policy Brief provides an overview of how countries may be liable to companies for taking domestic action to protect public health, including pre-COVID claims related to Intellectual Property (IP), as well as possible claims because of COVID emergency measures, including claims that could result if the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Waiver was adopted. The current COVID-19 crisis opens the opportunity to consider and reevaluate the unnecessary threat of international agreements that allow for investment claims and potentially consider their termination.
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Last chance for the Global South? Pursuing the South’s interests in reforming the Investor-State Dispute Settlement system in the multilateral arena
By Jose Manuel Alvarez Zarate and Maciej Żenkiewicz
The current Investor-State Dispute Settlement (ISDS) system is mainly criticized for its lack of transparency, unbalanced rights and obligations between State and investors, and the expansive interpretation of arbitrators of the investment protection treaties’ vague rules. Any reform of the ISDS should benefit developing countries that are facing most of the ISDS claims. The decisions taken at the thirty-seventh session of the United Nations Commission for International Trade Law (UNCITRAL) Working Group III (WGIII) on ISDS Reform (New York, 1-5 April 2019) are likely to influence the way in which the discussions about the reform of ISDS at the multilateral level will go. The developing countries should shape their agenda in such a way to facilitate consensus in the context of advancing their collective interests and perspectives. (more…)
