UNCITRAL arbitration

The investor-state dispute settlement (ISDS) system, established through the International Center for Settlement of Investment Disputes (ICSID), emerged as a response to foreign investors' distrust of national courts, particularly in developing countries. Since its establishment in 1966, ICSID has served as the backbone of the global ISDS mechanism, offering legal certainty and neutrality in dispute resolution. However, in the past two decades, the system has faced a substantial legitimacy crisis due to jurisdictional expansion, closed procedures, and inconsistent jurisprudence. This critical research examines the three main pillars of ICSID-competence, procedure, and jurisprudence-through a critical doctrinal approach and analysis of selected cases. The findings show that ICSID tribunals frequently expand their jurisdiction beyond the intent of the treaty, fueled by double-hatting practices, the dominance of repeat players, and a lack of transparency. ICSID jurisprudence, while not legally binding, establishes a soft precedent that creates law without democratic legitimacy, impacting state sovereignty and public policy. In this context, the ad hoc arbitration model is deemed to have failed to meet the demands of accountability and balance. Therefore, this study recommends a transformation towards a permanent multilateral investment court (MIC) system, with an appellate body, mandatory transparency, a ban on double-hatting, and the strengthening of the voices of the Global South. The future of international investment law must be built on the principles of balance, inclusiveness, and accountability, based on general principles of law to create a just and sustainable order.

For decades, BITs have been the primary tool for promoting and protecting international investments. However, with the Treaty of Lisbon, the European Union was granted express competence over foreign direct investments, creating a conflict between EU law and the BITs concluded by Member States with third countries (extra-EU BITs) and, more significantly, among themselves (intra-EU BITs). The first part of this monograph explores the origins and evolution of BITs, setting them within the broader framework of a globalized world—one in which regional and macro-regional agreements now also play a key role. The second part examines the fragmented nature of the European Community’s competence in this area before Lisbon and how it evolved within the Union after the treaty. It then analyzes the tensions between BITs (as well as the Energy Charter Treaty) and EU law, identifying the key pillars of modern European investment policy.

The European Union and its member states back the formation of a permanent investment tribunal and a Committee of the Parties that would handle different tasks, including the selection of adjudicators. According to the European Union and its member states, the members of the investment tribunal should work on a full-time basis, and the selection criteria should prioritize the most qualified and unbiased individuals, regardless of their nationality. To expand the pool of potential adjudicators and promote diversity, they suggest adopting the entire language of Article 2 of the ICJ Statute for the qualifications requirements. The European Union and its member states do not support the idea of tribunal members being appointed by States that do not recognize the tribunal's authority. This paper delves into the European Union and its member States' positions on certain fundamental issues related to ISDS reform, along with a comprehensive analysis of varying positions held by other stakeholders, including some members of UNCITRAL working group III who share similar viewpoints with the European Union and its member states on some matters and have differing opinions on others.

This policy brief considers some concerns arising from the ongoing discussions on procedural reform of investor-State Dispute Settlement (ISDS) in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. It highlights the need to allocate sufficient time to deliberate upon the important issues being raised by developing countries. It further discusses some structural reform options that have been identified by the Working Group and reflects on some concerns arising from a possible ‘single undertaking’ approach being implemented through a future possible multilateral agreement on ISDS.

International investment arbitration is one of the main dispute resolution methods among investors and host states. It provides investors with a non-political way to obtain awards and enforce them. However, in the enforcement stage they experience some problems based on both international and national rules. Nowadays, different solutions are applied to avoid those problems and provide smooth enforcement of arbitral awards. In this article, the problems of enforcement of investment arbitration awards and solutions of those problems are analyzed based on the current statutory rules and practices. Although it is concluded that the current solutions are usually sufficient for avoiding of problems of enforcement, in order to avoid those problems entirely, especially the problem arising from State immunity bar of host states, the author suggests; adding provision on waiver of sovereign immunity from execution into both the ICSID Convention and the New York Convention; pursuing a negotiation of a post-award settlement.

Due to the problem-centric nature of its mandate, empirical research has been relatively central in the United Nations Commission on International Trade Law (UNCITRAL) investment arbitration reform process. In this article, the authors seek to provide a state-of-the-art summary and assessment of empirical studies on the six identified concerns of states: legal cost, duration of proceedings, consistency, correctness, diversity and independence. The article asks: (1) What do we know? and (2) Does it matter? The survey of evidence reveals an emerging base of quantitative, qualitative and computational evidence for justifying some but not all concerns and understanding their causes. However, there are challenges in accessing all relevant data, modelling outcomes and evaluating whether there was normatively a problem. The article concludes by indicating that some concerns are clearly justified, others not, and others fall within an unknown category.

The work of UNCITRAL Working Group III considers issues of adjudicator diversity to be an area of concern for the legitimacy of the ISDS system. Studies show that nearly all of the most prominent and repeatedly appointed arbitrators in ISDS cases are men from the Global North with significant prior experience in ISDS cases. Looking at these attributes of gender, geography, and experiences, critics claim this lack of diversity has implications not only for the quality and rigor of the decisions rendered but also for the way in which decisions are perceived. Rather than being seen as fair, just, and devoid of bias, they are sometimes suspected to be the products of adjudicators who share a particular world view. This article focuses first on four key issues surrounding diversity: (1) how a lack of decisionmaker diversity affects the real and perceived legitimacy of the ISDS system; (2) empirical evidence on the current extent of the diversity problem in ISDS; (3) the causes for the pe...

The central premise of this article is that financial innovation and the everincreasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of 'commons/anti-commons analysis' and 'contractualisation of bankruptcy' models, the article critically analyses recent developments at European and national level, in particular the development and reform of the concept of Centre of Main Interest (COMI), the rise of prepackaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifies these developments and provides some guidance for future reform efforts. A. INTRODUCTION Since the publication of the Cork Report 1 more than 30 years ago, corporate insolvency law has flourished as a subject of academic enquiry. Initially perceived as a rather technical area, of relevance mainly to practitioners, the interest in a theoretical and * School of Law, King's College London. A draft of this paper was first presented at the INSOL Europe Academic Forum conference in Venice, September 2011. I would like to thank Rolef de Weijs, Roger Brownsword and Robin Parsons for helpful comments. The usual disclaimer applies. 1 Report of the Review Committee, Insolvency Law and Practice (Cmnd. 8558) (Cork Report). 2 principled analysis of the complex policy issues involved has increased significantly. 2 With the enactment of the European Insolvency Regulation (EUIR) 3 corporate insolvency law in Europe has effectively become a multilayered system, 4 a tendency that is likely to increase. The ongoing global financial crisis has further sharpened the focus. 5 Major reform efforts are either under way or have already been implemented. 6 In the context of

The central premise of this article is that financial innovation and the everincreasing complexity of proprietary entitlements necessitate a principled recalibration of the boundaries of regulation and contract in corporate insolvency law, a recalibration that is already under way. Through the lens of a combination of 'commons/anti-commons analysis' and 'contractualisation of bankruptcy' models, the article critically analyses recent developments at European and national level, in particular the development and reform of the concept of Centre of Main Interest (COMI), the rise of prepackaged administrations and the reformulation of the anti-deprivation principle. The adopted theoretical framework explains and justifies these developments and provides some guidance for future reform efforts. A. INTRODUCTION Since the publication of the Cork Report 1 more than 30 years ago, corporate insolvency law has flourished as a subject of academic enquiry. Initially perceived as a rather technical area, of relevance mainly to practitioners, the interest in a theoretical and * School of Law, King's College London. A draft of this paper was first presented at the INSOL Europe Academic Forum conference in Venice, September 2011. I would like to thank Rolef de Weijs, Roger Brownsword and Robin Parsons for helpful comments. The usual disclaimer applies. 1 Report of the Review Committee, Insolvency Law and Practice (Cmnd. 8558) (Cork Report). 2 principled analysis of the complex policy issues involved has increased significantly. 2 With the enactment of the European Insolvency Regulation (EUIR) 3 corporate insolvency law in Europe has effectively become a multilayered system, 4 a tendency that is likely to increase. The ongoing global financial crisis has further sharpened the focus. 5 Major reform efforts are either under way or have already been implemented. 6 In the context of

The study investigates the current impact of Electronic Data Interchange (EDI) adoption in shipping, logistics sea freight forwarding industry and in customs. It is found that the level of adoption of EDI applications in shipping logistics industry is considerably comprehensive. The observed perceived usefulness and perceived ease of use of EDI applications are high across the industry, particularly for web-based EDI applications. Merchants are increasingly using computers to facilitate international transactions, and many observers believe that full-fledged electronic commerce is nearing reality. At present, the business community uses electronic data interchange. The most significant perceived benefits brought by EDI implementation are found to be faster information response and access, improvement of efficiency and streamlining of logistics processes. Since EDI being both quick and efficient, the shipping industry is expected to benefit greatly from its adoption, particularly in the areas of bills of lading. Unfortunately, numerous technical and legal obstacles have slowed the introduction of EDI, with the chief impediment being the law’s insistence on paper-based documentation. Recently however, several significant steps have been taken to promote the use of EDI and it is revealed that more Research &Development efforts focusing on the provision of real-time information are warmly anticipated by the industry.

International arbitration is a universal concept and a flexible institution
transcending the public law/private law divide. The purpose, the place and the secrecy of international arbitration, the function of arbitrators,
institutional commonality, the enforcement of arbitral decisions, the law to be applied in arbitration and the lack of binding precedent all point to the idea that international arbitration is a method of dispute settlement based upon common sense. Whomever the parties to and whatever the subjects of international arbitration may be, one cannot posit a definite or absolute differentiation between public and private international law arbitration. Indeed, arbitration's universality and flexibility are most visible in mixed arbitrations - such as the Iran-USA Arbitral Tribunal - where a high number of diverse disputes following a crisis push the limits of creativity in the founding and the functioning of international arbitration.

The ongoing 'legitimacy crisis' in investor-State dispute settlement (ISDS) has triggered a comprehensive attempt at multilateral reform. In 2017, Working Group III at the United Nations Commission on International Trade Law (UNCITRAL) was entrusted with a broad, open-ended and problem driven mandate. The reform process aims to tackle particular concerns with ISDS: excessive costs and lengthy proceedings, inconsistent and incorrect decisions, and a lack of arbitral diversity and independence. The exclusion of substantive treaty reform has met critique but states are considering a wide range of procedural options from incremental reform to a multilateral court, appellate mechanism, and ISDS alternatives. In this article, we introduce the reform process and the seven articles that follow in this Special Issue of the Journal on World and Investment and Trade. In these contributions, ISDS Academic Forum members analyse the basis for each concern and the potential contribution of leading reform models.

Recently, the investor-state dispute settlement (ISDS) mechanisms have become one of the most debated issues among international lawyers. Numerous calls have arisen for “ISDS reform,” which have paved the way for the intergovernmental efforts to tackle so-called major problems and deficiencies of the current ISDS system. The most prominent initiative in this sense is United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) which has been working on an ISDS reform process for several years. After intensive discussions and consultations within itself, WGIII has decided to assign the Secretariat of UNCITRAL together with the Secretariat of International Center for Settlement of Investment Disputes (ICSID) to prepare a draft code of conduct for Adjudicators which was seen as one of the major matters of concern.

This paper explores the assistance that can be had of international arbitration in international insolvency cases. As an operational scheme, they have hitherto operated in separate worlds, by and large without intersecting. They stake-holders need to develop understanding of the applicable laws of arbitration and insolvency, given the acknowledgeable role of international arbitration in the international insolvency proceedings. This paper examines the issue in seven parts.

Part I walks through the structural firmament of international arbitration and insolvency laws, very briefly. Part-II advances perspectives with regard to their processes and applicability operations.    Part-III looks for locus standi of using legally the arbitration in international insolvency cases against the backdrop of E.U. Insolvency Regulation and UNCITRAL Model Law. Part-IV explores enabling mechanism to enable the interaction of two areas, of international insolvency and international arbitration. Leading to Part V, this paper delves into possible uses of arbitration in international insolvency cases. Logically, then Part VI seeks to audit the process- the limitations inherent in the arbitration proceedings (of New York Convention), of processes borne out of relationship between the two and unavoidable features of arbitration. While Part VI explores the procedural limitations, Part VII discusses the possibility of intersection in terms of extant public policy of the stake-holder jurisdiction- the issues of public law qua private law, and assessing arbitration in terms of public policy. In conclusion, a sweeping obiter dicta attendant on the foregoing analysis wraps this paper observing that there is a need to further explore and elaborate the intersection of arbitration proceedings in insolvency context, and that much enterprise could be profitably done in this area.