The ICLRC took part in the 44th session of the UNCITRAL Working Group III
On January 23 – 27, 2023, the International and Comparative Law Research Center took part as an observer in the 44th session of the UNCITRAL Working Group III. Within the session the Working Group has considered a Draft Code of Conduct (for arbitrators and judges) and Commentary (A/CN.9/WG.III/WP.223), and Appellate mechanism note (A/CN.9/WG.III/WP.224).
Since 2017, the Working Group III has been implementing the Commission’s broad mandate relating to the reform of the investor-State dispute settlement (ISDS). It is planned to gradually resolve issues and shortcomings of the ISDS previously identified by the Working Group by 2026. The draft codes of conduct for arbitrators and for judges with commentary, into which the single draft code was divided, will be submitted to the Commission in July 2023.
The draft code of conduct is in a high state of readiness. The most considerable debate arose on the articles in the draft Code for Arbitrators relating to limits on multiple roles. Opinions of delegations varied — from support for a complete ban on double-hatting and establishing a cooling-off period of at least 10 years to support for no limitation at all. The success of the 44th session was a multi-stage compromise on limitation on multiple roles. The delegations also expressed willingness to discuss alternative time periods for cooling-off, in particular, 6 months, 1 year, 3 years, and 5 years. The Working Group will continue its deliberations on this issue at the next session in March 2023.
Work on draft provisions on the functioning of the appellate mechanism is still in its initial stage. At the session, the Working Group focused among other things on such fundamental issues as: how the appellate mechanism will interact with the existing mechanism of annulment and setting aside of arbitral awards; on means to avoid a three-tier system and systematic appeals; and on possible models for implementation of the appellate mechanism.
The Working Group considered an option of the appellate mechanism being established ad hoc (possibly administrated by existing institutions) or as a standing mechanism (either as a stand-alone body or a second tier of a standing mechanism). There were no decisions made. The Working Group invited the Secretariat to continue its work on those draft provisions on the functioning of an appellate mechanism that can be applicable irrespectively of the chosen model for its implementation. The members of the Working Group repeatedly called on the Academic Forum to explore in further detail the questions of how to implement each model; how these models correlate with the existing review mechanisms, while ensuring the overall efficiency of the entire system.
The ICLRC will continue to actively monitor the work of the Working Group III and participate in the discussions as an observer.