INVESTMENT ARBITRATION 2021: WHERE ARE WE HEADED?
The past year has seen many developments in the context of investment arbitration and investor state dispute settlement (ISDS). Transparency, accountability and evolution are words that ally this period of development, realising a renewed, revised ICSID-UNCITRAL Code of Conduct of Adjudicators, and motivation allied with activation in the Working Group III Sessions focused on the ISDS Project or ISDS reform. Finally, Canada offers a new model Foreign Investment Promotion and Protection Agreement, incorporating reference to ‘responsible business conduct’ aligned with the rights of protected classes. This article provides an overview, in broad strokes, of these changes, to capture the ripples of redesign.
ICSID/UNCITRAL Code of Conduct version 2.0
In April 2021, the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL) issued a new version of the Code of Conduct for Adjudicators in International Investment Disputes. This new version follows a series of comments received during the public consultation session that opened in May 2020. Several important changes have been incorporated and are reflected in this new version, deferring other issues for future consideration.
Of particular significance, the term ISDS has been replaced by international investment dispute (IID). The commentary makes clear that this change is to operationalise the Code’s application to both investor-state and state-to-state dispute settlement. Article 4(1) provides the overarching goal of the Code in one simple sentence: “Adjudicators shall at all times be independent and impartial.”
Jul-Sep 2021 issue
New York International Arbitration Center