UNCITRAL-secretary on reforming Investor State Dispute Settlement

– You could have the scenario where investors are being treated just like other citizens from the country where they carry out economic activities, they go to the courts, says Joubin-Bret.

The UNCITRAL-secretary clarifies that it does not have to be a commercial court and that it can be the first instance or appeal tribunals.

– But there is this ingredient for foreign investment, that they are aliens to the system. There is a risk that companies, whose investment is being sought and is being promoted to come to the country, may not be willing to take an additional risk.

Therefore, the UNCITRAL Working Group III, is elaborating on a specific reform element.

– To replace investment arbitration by an investment court. This is a proposal that was tabled by the European Union and that is generating interest from a number of countries, particularly the appellate level of such court, to give investors access to a system which is more akin to the domestic courts, but with a special status, instead of arbitration, which is more party driven, says the UNCITRAL-secretary.

Anna Joubin-Bret explains how this would be a special court hearing cases brought by foreign investors claiming the breach of an international treaty.

– I think, one of the key ingredients in investment dispute resolution is that these cases are brought on the basis of public international law instruments, namely treaties. So establishing a treaty violation applying international law is not the daily bread and butter of domestic jurisdictions. Therefore, proposing a special jurisdiction where these cases can be heard is a proposal that has its merits and that is being currently worked on in UNCITRAL.