Finally able to give serious read @AntheaERoberts @taylor__stjohn recent sum-up of UNCITRAL WGIII talks (TL/DR: take up the pen). The desire to stop high level talks and move to details is a great way to move forward; analogy is to writing - at some point you need to just start.
What is very interesting is the marriage of 2 points by these scholars: 1) EU&MS/Switzerland proposal for text via informal sessions before taking text to broader group; 2) focusing next time on "WHO texts as well as HOW and WHEN that texting occurs."
Its inescapable to compare to WTO struggle to cooperate multilaterally and urgent questions on legality of joint initiatives plus longstanding concerns of developing countries with informal, green room talks. I suspect we will see similar concerns rise up in investment context.
Who will be in the room where it happens? SOME text is needed to work from - even if a State wishes to disagree, let disagreement happen on paper for progress to happen.
It will be a challenge for the Chair to balance inclusivity and progress.
It will be a challenge for the Chair to balance inclusivity and progress.
While the States debate the value of informal groupings to draft text, one solution is to not just work with a coalition of the willing, but seek out smaller clusters of varied groupings. Another option may be to rely on rounds, where one text goes through various groupings.
Some States (& scholars) will undoubtedly be frustrated by the decision to not consider systemic concerns with the whole system. Perhaps this process of reforming the existing DSM will encourage States to take more seriously mixed data on whether treaties impact investment flows.
Each government must decide for its people (as we see with Brazil) whether to proceed with ISDS or resort to SSDS; whether to take seriously possibilities eg, entrenching investor responsibilities and counterclaims.
But one question I hope the UNCITRAL WG III will consider for #MultInvCourt, whenever travel is made possible and these officials can come together to meet and talk-that they take seriously to ask WHERE the text is done. They need to take seriously that this question matters too.
Oh and Roberts and St John offer, as always, an illuminating assessment that you should read, and you can do so here: ejiltalk.org/uncitral-and-i… Plus Julian's hard look to details here: ielp.worldtradelaw.net/2021/02/isds-r…
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