Editors’ Note: We continue the series of posts (see this morning’s introduction here, and first post on costs here), contributed by individual members of the Academic Forum of the UNCITRAL Working Group III (UNCITRAL WG III) on Investor-State Dispute Settlement Reform, which provide summaries of individual concept papers prepared by various Academic Forum working groups jointly authored by members therein. These posts will run simultaneously with the ongoing UNCITRAL WG III sessions in New York this week. This post, authored by Holger Hestermeyer with Anna De Luca, summarizes the concept paper on duration of ISDS proceedings, which was jointly authored by the members of Academic Forum Working Group II (Holger Hestermeyer as chair, Jose Manuel Alvarez Zarate, Crina Baltag, Daniel Behn, Jonathan Bonnitcha, Malcolm Langford, Anna De Luca, Loukas Mistelis, and Gregory Shaffer.) Clara Lopez Rodriguez and Simon Weber provided assistance.
The length of proceedings, and the resulting impact on costs, has long been a topic of considerable importance for arbitration: a lack of speed is widely perceived by users as one of the downsides of international arbitration. In the current debate about ISDS reform, the length of ISDS proceedings, alongside their costs, has been raised as a concern at the thirty-fourth session of UNCITRAL Working Group III. In the following paragraphs we will try to answer the following questions: when are proceedings excessively long? How long are ISDS proceedings? What is the effect of the various reform proposals on the length of ISDS proceedings?
In carrying out this evaluation the authors faced a number of challenges. Firstly, none of the reform scenarios has been intended to specifically address the duration of ISDS proceedings except for some of the improvements suggested by the scenario “Investment Arbitration (IA) improved”. As a result, the impact on the duration of ISDS proceedings is more of a collateral damage or benefit of the reform proposals under discussion and is, accordingly, not always easy to ascertain. Secondly, the length of investment arbitration is so heavily fact-specific that it seems to defy all attempts at generalisation. Thirdly, short proceedings are not automatically better proceedings. Shortening proceedings can affect dispute resolution in complex ways and involves trade-offs. These have to be made clear.