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The Mandate Conundrum: Reflections on the 46th Session of the UNCITRAL Working Group III on ISDS Reform

The UNCITRAL Working Group III convened in Vienna between 9 and 13 October 2023 for its 46th session to discuss the establishment of an advisory centre on international investment law, which would be tasked to provide legal and technical assistance in connection with investor-State disputes. In addition, it would tackle a number of “procedural and cross-cutting” issues (PaCCI) it had identified in earlier sessions. The PaCCI, 25 in total, includes the right to regulate, damages, consultation, denial of benefits, shareholder claims, and counterclaims. On the first day, the WGIII allocated three days to discuss the issue of the advisory centre and two days to commence its debate on the PaCCI (specifically damages). The WGIII began its work by acknowledging that given the number of the identified PaCCI and their extensive content, the discussions on both agenda items would likely continue well beyond the 46th session. The 47th session is scheduled to take place between 22 and 26 January 2024 in Vienna. Parallel to these two…

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Shoehorning Substance into a Procedural Mandate? The Right to Regulate and UNCITRAL Working Group III

This post addresses Draft Provision 12, on ‘Right to Regulate’, in the recent ‘Draft Provisions on Procedural and Cross-Cutting Issues’ that were published by the UNCITRAL Secretariat in late July and will be discussed at UNCITRAL Working Group III’s next session in October 2023 (A/CN.9/WG.III/WP.229 [11]). The Draft Provisions have been ‘prepared…

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