In the unusually chilly 2018 spring of New York City, I attended Working Group III of the United Nations Commission on International Trade Law (‘UNCITRAL’), which focused on Investor-State Dispute Settlement Reform. This was an opportunity offered by the UNCITRAL Coordination Committee for Australia, and I attended as a delegate of LAWASIA, the Law Association for Asia and the Pacific. This report reflects my experience at the Working Group and what I have taken from my week at the UN.
The work of Working Group III
With over 3,000 treaties and billions of dollars of foreign investment flowing into countries, the current regime governing investor-state dispute settlement (‘ISDS’) between investors and countries is a crucial one for the global economy, mixing both domestic foreign investment laws, public international law and politics. Whilst the dispute settlement regime was developed to encourage foreign investment, the regime is up for reform with a long list of concerns from both investors and countries as to its current operation. Working Group III has been mandated to: (i) first, identify and consider concerns regarding ISDS; (ii) second, consider whether reform was desirable in light of any identified concerns; and (iii) third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission. Working Group III in New York was at phase (i).
Deliberations during the week
With three knocks of a gavel, Working Group III kicked off in the UN Conference Building, with the countries making up UNCITRAL and dozens of observers like ourselves and countries not party to UNCITRAL. The meeting opened up with general remarks from each country, which seemed to be prepared statements from their respective capitals to put on the record their positions. Some were vocal and passionate on their positions, others were more open to debate.
The Working Group then moved to systematically allowing comments on the working paper that listed out the concerns with the ISDS regime. Whilst many delegations simply read out prepared statements which was overwhelmingly similar to other countries, what was particularly interesting and exciting was the interaction between countries as well as between countries and observer organisations. For instance, there was open disagreement between Mauritius and Mexico on the importance of treaty text interpretations, with Mexico calling out the Mauritius delegation on their poor comparison between domestic and international law. Another example was Mauritius’ criticism of an observer organisation’s veiled complaint in having to wait for their time to talk, arguing Working Group III ‘has always been, [and] will always be a government-led process’. The European Union (‘EU’) as an observer also received attention, with some nations questioning their influence on these meetings and whether they were talking on behalf of the EU entirely or particular nations in the EU.
Beyond the meetings
Particularly special and an unexpected benefit were the opportunities outside of the actual Working Group. I was able to attend multiple side events that touched on international investment and its regulatory scheme: an Oxford Union-style debate at New York University School of Law (where I met an Italian Supreme Court judge and connected with NYU Law students), a talk by the Australian Mission to the UN about sustainable development of small island nations, and a lunchtime talk hosted by law firm Foley Hoag and the International Chamber of Commerce discussing the EU’s Multilateral Investment Court Project. I was also able to meet and network with other organisations, ranging from Berkley professors, a Korean delegation and a lobbyist for American businesses.
I was also grateful for the support of Prishika Raj, the lead delegate for LAWASIA who I accompanied. She invited me to side events, introduced me to her colleagues in attendance, and made me feel welcome at a foreign and at times confusing affair.
Lessons from my experience
There is something truly exciting in being witness to the beginnings of reform of a regime so crucial to the participating nations and observer organisations. Attending Working Group III of UNCTIRAL allowed me to get an insider perspective on the workings of the UN and a greater appreciation of international law and international politics. In applying for this opportunity I did not pretend to be an expert on international trade law, but promised to bring curiosity and openness to new experiences – I believe I have exercised both in gaining the most from this ‘fly on the wall’ experience. I am deeply thankful to Dr Alan Davidson for organising this opportunity, Dr Jonathan Bonnitcha for his recommendation and providing research resources, and the UNCITRAL National Co-ordination Committee for Australia for allowing me this wonderful opportunity. I return to Australia with fond memories of my first time in New York City and hope to share this opportunity with other students interested in international trade law like myself.