Procedural versus Substantive Reforms: Is the Work of UNCITRAL WGIII Worth the Wait?

Kabir A.N. Duggal, Nicholas J. Diamond, and Sarah Ayreen Mir

June 27, 2021

Calls for investor-State dispute settlement (“ISDS”) reform have persisted for some time (see blog coverage here). Competing calls for retaining the status quo, modifying the system, or abandoning the system altogether have each gained traction. With a drastic increase in the number of investment cases being brought, accompanied by the “mega” awards, the international community has had to respond.

One of the most prominent global initiatives to address these reforms has been the UNCITRAL Working Group III (“WGIII”) process (see blog coverage here). WGIII’s discussions began in 2017 and, as recently announced, WGIII plans to conclude its reform process by 2025. The question that arises is whether this 8-year reform process will meaningfully address the calls for reform. This is a significant question because if, after undertaking such a long and detailed reform process, criticisms on the basic ideas of ISDS persist, the international community has to consider whether the transaction cost was worth it at all.