Kinnear, the 2022 ICSID Rules address many current concerns, as they: 4) as examples of improvement of the system in the near future.Īccording to Ms.
Indwes day of courageous conversations code#
The panel took the new ICSID Rules and the regulation of double-hatting in the Code of Conduct for Adjudicators in International Investment Disputes (see Art. Near Future – New ICSID Rules and Regulation of Double-Hatting
He qualified several major defects of the system as the “7 capital sins”, namely (i) legal uncertainty, (ii) length and unintelligibility of decisions, (iii) length of proceedings and excessive costs, (iv) too-systematic use of experts, (v) “americanization” of the proceedings, (vi) l’entre-soi, and (vii) doubts regarding certain arbitrators’ and counsels’ conduct.Īgainst this backdrop, the speakers contemplated the near future of the investment arbitration system. Pellet opined that it is not a good sign that after a few years, the community already questions the future of the field. A lot of negative stereotypes are inconsistent with the evidence – in fact, no international law system has ever evolved and grown as much as ISDS. Meg Kinnear contended that although the system is young and criticized, it functions well: more than 2200 BITs are in force (along with 65 model BITs), ICSID has 158 members, 30% of cases are settled, and case law is becoming more and more developed. While it was perhaps possible to persuade the world five years ago that it is a fair, effective and legitimate system, there is now a mountain to climb to convince the world. Considering the difficulties with renegotiating treaties and political obstacles along the way, the investment arbitration system is not a success, and this viewpoint has now acquired a loud voice. 1) In 2019, 37 investment treaties were terminated, 43 in 2020, and 87 in 2021. Landau noted that a trend towards States withdrawing from the system has accelerated. The future of the system is routinely questioned during conferences, and UNCITRAL Working Group III (“WGIII”) consistently demands change. Thus, the panel is assessing an incredibly short-lived process, which has only been around for 20 years.Īnd yet, in that short lifespan, a significant backlash has grown. During a period of 30-40 years, arbitration was dormant – a sleeping beauty “kissed by Jan Paulsson” with his landmark article “Arbitration without Privity”. Its lifespan remains, as of now, very short: the first investment treaty was signed in 1959 between Germany and Pakistan, and there was no active investment arbitration until 2000. Despite this, the system is ill-developed. Toby Landau KC noted that many disputes have been resolved, numerous awards have been enforced, and, as a result, many conflicts have been avoided.
Following an assessment of the current system, the panel set out to distinguish between the near-term, mid-term, and the distant future of the field.Īssessment of the Current System – Does it Work Well? new arbitration rules), any radical transformation of the system could take years, if not decades. Despite calls for reform and introduction of “small” improvements from time to time (e.g. Desired changes, if any, may take longer than expected. In recent years, two opposing dynamics have emerged in investment arbitration: while States are not satisfied with the current system and change seems now to be on foot, there is also great inertia. The event was moderated by Gustavo Laborde (Laborde Law), Jean-Christophe Honlet and Barton Legum (Honlet Legum). Alain Pellet (Paris X University) on “ The Future of Investment Arbitration? ”. As part of Day 1 of the 2023 Paris Arbitration Week (PAW), Laborde Law and Honlet Legum organised a discussion between Meg Kinnear (ICSID, Secretary General), Toby Landau KC (Duxton Hill Chambers), and Prof.
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