NEW YORK 16 May 2018 – Investor-State Dispute Settlement (ISDS) system needs reforms to address important concerns to serve the ends of international justice within the context of the imperatives of national governance.
This was the message of Department of Foreign Affairs Undersecretary for International Economic Relations Mr. Manuel Antonio J. Teehankee when he reminded delegations to the 35th Session of Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) of the context and twin goals of ISDS to create an international rule of law and rules-based mechanism to settle international investment disputes, which would in turn promote and facilitate international trade and investment that contributes to greater economic development of host states.
Undersecretary Teehankee stressed concerns over consistency and predictability of arbitral awards and the need to establish agreed norms of behavior and ethical standards for arbitrators, including the lack of a uniform and enforceable code of ethics for arbitrators in investment disputes and the need to increase diversity of the pool of arbitrators.
Undersecretary Teehankee also added that more than the challenges of devoting resources to defending the state against multiple suits, of grave concern is the prospect of obtaining conflicting rulings over the same investment on mostly similar facts, issues, and reliefs.
Undersecretary Teehankee added that the issue of the multiple roles of arbitrators as counsels or experts should be addressed as an arbitrator should not only be independent but must also be perceived as independent for his awards to be legitimate and credible.
As such, the Philippines supports the formulation of norms both for the adjudication and representation in investment arbitrations, and urges transparency in the arbitral process through a possible annual objective report of cases by independent rapporteurs under the supervision of UNCITRAL.
At its 50th annual session in July 2017, UNCITRAL decided to entrust the Working Group with a broad mandate to work on the possible reform of ISDS. The Working Group was requested to identify concerns regarding ISDS, consider whether reform was desirable and, if deemed desirable, to develop relevant solutions to be recommended to the Commission. The Working Group agreed to consider the three stages of the mandate in sequence and to undertake a thorough analysis of all relevant issues, with the objective of identifying the core concerns that might justify reform.
The next session of the Working Group will be held in Vienna from 29 October to 2 November 2018.
The Philippines is a member of the Working Group until 2020. Philippine Embassy Philippines