Establishment of an Advisory Centre
The Working Group acknowledged that the Advisory Centre should be established as an intergovernmental body, independent from other components of the investor-state dispute settlement (ISDS) reform. Accordingly, the Working Group agreed to prepare draft provisions on the establishment of the Advisory Centre in the form of a protocol or an annex to the multilateral instrument on investment reform (MIIR) which could be adopted by States and regional economic integration organisations. It was agreed that the draft provisions would be adopted in principle, with the flexibility to make future adjustments as required. While the overall support for the creation of the Advisory Centre was reconfirmed, its independence, accessibility of services, diversity of presence and staff members and sustainable operation were emphasised as important requirements to consider.
Procedural and cross-cutting issues
The draft provisions on procedural and cross-cutting issues were said to be able to enhance the harmonization of ISDS rules and modernize the old-generation international investment agreements (IIAs). However, concerns were raised for potential fragmentation and uncertainty if only a limited number of States adopt them. Views differed on the potential form of the draft provisions, whether they should be prepared as model provisions for States to include in their IIAs, as provisions incorporated in the MIIR or as a supplement to the UNCITRAL Arbitration Rules. The Working Group acknowledged that the form of the draft provisions would differ and would depend on each provision’s content.
The Working Group gave particular priority to discussing the draft provision on damages. The Secretariat was asked to revise the damages provision, reflecting the general principle of full reparation and clarifying that a tribunal could award monetary damages and reasonable interest and that causation between the breach and the damage would be required. The Secretariat was also requested to revise the provision addressing the elements to be taken into account when assessing damages, the rules on burden of proof and the prohibition of punitive damages.
The Working Group will continue deliberating on the draft provisions for creating an Advisory Centre and on procedural and cross-cutting issues during the forty-seventh session scheduled for 22–26 January 2024 in Vienna.
