23 Aug 2019
On Thursday 22 August 2019, CIArb hosted the second in its “Evolution not Revolution” series of ISDS debates. At the magnificent Clifford Chance offices overlooking Marina Bay, a panel led by Romesh Weeramantry (Counsel, Clifford Chance Asia) wrestled with some of the key themes of the ISDS reform debate, grouped into the overarching categories of ‘Efficiency’, ‘Decisions’ and ‘Decision-Makers’, and advanced some intriguing and innovative analysis of how things are likely to develop in the coming years.
The ‘Evolution not Revolution’ series emerged from CIArb’s contributions to UNCITRAL Working Group III, where we have emphasised the preferability of targeted and considered reforms to specific aspects of the system over the wholesale replacement with a different model such as the Multi-Lateral Investment Court proposed by the European Commission. These discussions are intended to spark a conversation from which ideas will emerge on what effective reform will look like.
CIArb Head of Policy Lewis Johnston opened the discussion with a recap of our work at UNCITRAL and a brief overview of the three themes under discussion. Romesh then opened the panel discussion with an illustration of how ISDS currently works, and the legitimate concerns which have been levelled against it (as well as those which are more dubiously founded). Locknie Hsu (Professor, Singapore Management University) then led the segment on ‘Efficiency’ with a focus on how the length of proceedings directly impacts on its cost (an area of criticism in the current system). Locknie also speculated on the prospects for the greater use of mediation in ISDS (a timely point given the recent signing of the Singapore Mediation Convention).
Nicholas Lingard (Partner, Freshfields Bruckhaus Deringer) then moved on to ‘Decisions’, where he dived into the questions of review mechanisms and transparency. On review mechanisms Nicholas alluded to the proposed amendments to the Singapore International Arbitration Act which will allow for a limited right of appeal on points of law and considered whether this could have any impact on ISDS as well as international commercial arbitration. Nicholas also recognised that there are legitimate civil society concerns over transparency in ISDS but noted that recent innovations aimed at opening up proceedings to scrutiny have in practice elicited scant interest.
Chin Heng Ong (Senior State Counsel, Singapore Attorney-General’s Chambers) closed the discussion with his thoughts on ‘Decision-Makers’. He emphasised concerns about the narrowness of the pool from which arbitrators are selected and brandished a network diagram of the leading arbitrators to demonstrate just how limited the selection is. This point generated considerable agreement in the room and everyone felt more needs to be done to broaden the pool. Chin acknowledged that the principle of party autonomy may play a role in this regard and Nicholas Lingard responded by saying the onus is on practitioners to encourage parties to take calculated risks and move away from a reliance on blunt data crunching when choosing an arbitrator.
The mood of the evening could be summed up by Nicholas’s prediction that in the coming years we are likely to see more granular innovation and fewer ‘grand plans’ in ISDS reform – echoing CIArb’s call for ‘Evolution not Revolution’. Locknie referred to some of the innovations that are already emerging across international arbitration as a whole and suggested there may be lessons that can be applied to ISDS. Chin left us with an interesting point drawn from an Anthea Roberts blog post – the ‘systemic vs incremental’ dichotomy does not mean the same thing to all people, and it must be acknowledged that MIC proponents will see themselves as evolutionists!
This was yet another valuable addition to the ISDS reform debate, and we were delighted to be joined by such an eminent panel and engaged audience. On 3rd September at the next edition of the series, a revised version of CIArb’s ISDS discussion papers will be launched, and we will be joined by another high-calibre panel to explore the issues ahead of the October session of Working Group III.
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