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UNCITRAL Working Group III And Fragmentation Of ISDS


September 30, 2022
9:00 am to 10:30 am EDT


Moderator: Margie-Lys Jaime (Republic of Panama)
Presenter: Maria Lucia Casas (Xtrategy, Senior Associate)
Panelist: Anna Joubin-Bret (Secretary of the United Nations Commission on Trade Law)
Panelist: Mairée Uran Bidegain (Program for the Defense of the State in Investment Arbitration, Ministry of Foreign Affairs, Chile)
Panelist: Katerina Florou (University of Liverpool, Assistant Professor)
Panelist: Lauren Mandell – WilmerHale

The last years have been marked by the reform of the institutions, treaties, and procedural rules that make-up a large part of investment arbitration. These institutional efforts to reform the ISDS system have continued throughout 2022.

UNCITRAL Working Group III (“WGIII”) has been busy since the 2017 broad mandate entrusted by the Commission to explore ISDS reform. In 2022 the WGIII has continued its work focusing on the draft code of conduct for international investment adjudicators (having UNCITRAL and ICSID issue Draft Version Four on 22 July 2022), a first review of thedraft standing multilateral mechanism, and discussions on a possible multilateral advisory centre. In the 42nd session, held in February 2022, the multilateral advisory centre was removed from the agenda and the time was divided between the two other topics. However, as WGIII was unable to reach a consensus on all provisions of the draft code of conduct, as well as of the draft standing multilateral mechanism, a revised version of both will be resubmitted for consideration at the 43rd session of WGIII in September 2022.

It is worth noting that since 2007, new generations of ISDS provisions negotiated in international investment agreements have come to fruition. In fact, there seem to be numerous single topic conventions that address specific procedural elements of arbitration or mediation such as the Mauritius Convention on Transparency; the Singapore Convention on Mediation. Potentially, this method would be used to adopt WG III amendments. In parallel, there are many new investment treaties, model BITs, and overlapping investment chapters.

With multilateral negotiations to reform investor-state dispute settlement (ISDS) now underway, a long suspense before the outcome is unavoidable. States are pursuing a wide range of changes to the current system, some of which may be incompatible with one another.

A number of States prefer investment arbitration. Others favor an multilateral investment court. Still others reject international dispute settlement altogether. This panel will address:

  • The latest version of the Draft Code of Conduct that will be discussed at the September 2022 UNCITRAL Session.
  • The draft standing multilateral mechanism
  • The most important structural reforms to the ISDS system.
  • How might the geography of international jurisdictions in investment disputes look like, including possibly investment arbitration for some, and a multilateral investment court for others?
  • What may be the specific one-off international instruments and topics that States may have the option to accede or become a Party to?
  • Do the means to pragmatically move forward ISDS reform–by providing the option to support certain international investment instruments and not others—create a problem of fragmentation that will prevent creating a consistent and balanced new ISDS system?

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September 26 - September 30

September 26 - September 30

International Dispute Resolution and the Ukraine-Russia Crisis

World Arbitration Update (“WAU”) invites you to attend a 75-minute webinar discussion by leading practitioners in the international dispute resolution field on the recent developments concerning the intersection of dispute resolution and the Ukraine-Russia crisis. According to the Kyiv School of Economics, Ukraine has so far experienced economic damage amounting up to $600 billion. Over $10 billion in airplane assets have been reportedly stranded in Russia setting off potentially large insurance claims and related disputes. Yale School of Management has collected data showing that almost 1,000 companies have publicly announced they are voluntarily curtailing operations in Russia to some degree beyond the bare minimum legally required by international sanctions. The Russian parliament continues to consider the expropriation of foreign assets. International disputes involving Russia and Ukraine are arising from the crisis and more likely to follow. Our speakers will discuss related topics, including: the impact of sanctions, the proposed formation of an international claims commission for Ukraine, the impact of the crisis on the legal profession, the potential and current international forums in which Ukrainian businesses and investors could submit legal recourse to address the consequences of the war in Ukraine, as well as an update on the ICJ case, Ukraine v. Russian Federation.

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September 26 - September 30

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The Actions of Russia, Countermeasures and Resulting International Disputes, Including Investor-State and Commercial Arbitration

September 26 at 6:00 pm to 7:30 pm GMT



JULY 12, 2022


6:00 pm to 7:30 pm GMT


Moderators: Gene Burd (FisherBroyles) (TBC)

Presenter: Rob Houston (K&L Gates Straits Law LLC)

Panelist: Tatyana Slipachuk (Of Counsel at Chief Legal Department of the Ukrainian Parliament, Special Advisor at Sayenko Kharenko Law Firm) (TBC)

Panelist: Raja Bose (K&L Gates Straits Law LLC) (TBC)

Panelist: Derek Loh (Deputy Director-General (Economic & Social), Attorney-General’s Chambers, Singapore) (TBC)

Panelist: Simon Chesterman (Dean, National University of Singapore School of Law) 

In response to the imposition of international sanctions on Russia for its invasion of Ukraine, Russia has imposed sweeping economic measures on foreign investors from States it considers “unfriendly”, including Singapore, the UK, the US, and EU Member States.  Both international sanctions on Russia and Russia’s own economic measures on foreign investors have had wide-ranging impacts across global market sectors, affecting foreign investors from around the world both directly through compliance mechanisms and indirectly through international commercial contracts.   

However, a number of venues exist for the resolution of the wide range of disputes anticipated to result from the current crisis.  In particular, foreign investors may still seek protection under investment treaties.  Currently, there are 62 BITs in force between Russia and other States, including 27 States that Russia has determined to be “unfriendly” as a result of international sanctions imposed on Russia.  Such treaties generally include substantive obligations to promote and protect foreign investment (e.g., to provide fair and equitable treatment, not to undertake unlawful expropriation of foreign investments, etc.) as well as for access to investment treaty arbitration against the Host State in certain circumstances.  Such public international law obligations under international investment treaties now appear at odds, for example, with recent economic measures imposed by Russia against foreign investors including: 

  • Currency Transfer Restrictions 

  • Transaction Approval Requirements 

  • Prohibition of Foreign Currency Export 

  • Restrictions on Debt Repayment 

  • Prohibition of Certain Exports and Imports 

  • Non-Enforcement of Intellectual Property Rights 

Also, the Russian Duma has considered additional measures (which many anticipate to be expropriatory) to effect the transfer of ownership or operation of certain foreign investments where foreign investors have ceased operating in Russia in the current climate of international sanctions. The resulting international legal climate arising from Russia’s actions in Ukraine breaks new ground in public and private international law. Practitioners are therefore broadly anticipating a wave of disputes both in international commercial arbitration and in investor-State arbitration, including with respect to claims advanced by covered investors in investment treaty arbitration against Russia for economic measures like the above.   

This panel will explore the implications of these developments both from a global perspective and a regional perspective in Southeast Asia, highlighting the following key points of interest: 

  • The Current International Sanctions Climate 

  • Regional Focus on International Sanctions in Southeast Asia 

  • Consideration of Current Venues for Disputes Arising from the Invasion of Ukraine 

  • Potential Mechanisms for Foreign Investors to Pursue Claims Arising from the Conflict in Ukraine in Investment Treaty Arbitration 

  • Anticipated Disputes and Issues in International Commercial Arbitration Prompted by the Conflict in Ukraine 

  • The Current Landscape for Sovereign Immunity and the Potential for Enforcement of Arbitral Awards Against State Assets 

This program will provide a brief summary of recent developments in relation to Russia’s invasion of Ukraine and identify key legal issues, including the interplay between international sanctions and customary international law (e.g., the characterization of countermeasures and the application of the law of State Responsibility (including State Defences) in Public International Law as well as issues arising in Private International Law and International Commercial Arbitration (such as Force Majeure).  The panel discussion will be followed by a Q&A period as well as a networking session.