Ms. Rabab Yasseen, Partner at Mentha & Partners, Deputy Judge to the Civil Courts in Geneva and Member of the CRCICA Advisory Committee represented CRCICA at the 54th session of the UNCITRAL, held in Vienna from 28 June to 16 July 2021. The session was conducted in a hybrid format allowing both in-person attendees in Vienna and attendees via UNCITRAL’s virtual platform. Dr. Mohamed Hafez, Counsel and Legal Advisor to the Director of CRCICA, attended virtually as an observer.
The Commission meeting discussed the topics on the agenda, including progress reports of working groups, as well as consideration of texts. The second week of the session (5-9 July 2021), focused on the report of Working Group III on Investor-State dispute settlement (ISDS) reform, as well as the consideration of texts in the area of mediation and expedited arbitration.
For the ISDS reform, the Commission reviewed the reports of WGIII on the work of its 39th, 40th and its resumed 40th sessions, and took note of the progress made by WGIII, which had started to develop concrete reform elements to be recommended to the Commission, in accordance with the third phase of its mandate. The deliberations followed a project schedule prepared by WGIII, aimed at elaborating and developing multiple potential reform solutions simultaneously.
The Commission commended WGIII for its progress on the consideration of a number of reform elements, including: I) at its 39th session: i) dispute prevention and mitigation as well as other means of ADR; ii) treaty interpretation by States parties; iii) security for costs; iv) means to address frivolous claims; v) multiple proceedings including counterclaims; and vi) reflective loss and shareholder claims based on joint work with the OECD; and II) at its 40th session: i) selection and appointment of investor-State dispute settlement tribunal members in a standing mechanism; and ii) draft provisions for an appellate mechanism.
A workplan was prepared by WGIII as a workable roadmap for progress to be made, and is meant to be flexible and notional, the details to be adapted as progress would be made. In regard to this workplan, it was stated that consideration of cross-cutting issues (currently placed under the category of reform of procedural rules for investor-State dispute settlement) would require more conference time and would need to be placed preferably as a separate work stream, given the range of such issues (alternatives to ISDS, dispute prevention methods, exhaustion of local remedies, counterclaims and investor obligations, third party participation, regulatory chill, calculation of damages, etc).
In relation to the reference of “adoption on a rolling basis” in the documents including the workplan, it was clarified that the phrase meant that the Commission could adopt a given reform element, approve it in principle or take other appropriate action, would make it possible for States to adopt it in their investment treaty practice rather than having to wait for the completion of the work on all the reform options.
Following its adoption in 2018 of the Singapore Convention on Mediation and the Model Law on Mediation, the Commission had decided that the secretariat would prepare notes on organizing mediation proceedings, update the UNCITRAL Conciliation Rules in the light of the mediation framework, and prepare a supplement to the “Guide to enactment and use of the UNCITRAL Model Law on International Commercial Conciliation”, which should provide guidance on how sections 2 and 3 of the amended Model Law should each be enacted as a stand-alone legislative text. Following their review by WGII, the Commission adopted the UNCITRAL Mediation Rules, the UNCITRAL Notes on Mediation and the Guide to Enactment and Use of the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) (item 6 of the session’s agenda).
In 2018, the Commission had mandated WGII to take up issues relating to expedited arbitration. WGII first approved draft expedited rules at its March 2021 session. Upon the request by the Commission to consider how the draft expedited rules could be presented in connection with the UNICTRAL Arbitration Rules, WGII agreed to present the draft expedited rules as an appendix to the UNCITRAL Arbitration Rules and to add a paragraph in article 1 of the UNCITRAL Arbitration Rules to incorporate the UNCITRAL Expedited Arbitration Rules. A revised version of the draft expedited rules and its annexes was prepared and presented to the Commission for finalization and adoption. A revised version of the explanatory note to the UNCITRAL Expedited Arbitration Rules was also prepared and presented to the Commission for its consideration. At its 54th session, the Commission adopted the UNCITRAL Expedited Arbitration Rules and the new article 1 § 5 of the UNCITRAL Arbitration Rules. The Commission also approved in principle the Explanatory Note to the UNCITRAL Expedited Arbitration Rules and authorized WGII to finalize the text at its 74th session in 2021.