Caribbean has stake in UNCITRAL Investor-State Dispute Settlement Reform

Caribbean States must make their voices heard in the Investor-State Dispute Settlement (ISDS) reform discussions currently underway in the United Nations Commission on International Trade Law (UNCITRAL).

This was the strong take-away message from the 5th SRC Lunch Time Chat held by the Shridath Ramphal Centre for International Trade Law, Policy & Services (SRC) of the University of the West Indies (UWI), Cave Hill Campus on Tuesday, May 14, 2019 at the SRC’s Conference Room, CARICOM Research Building, the UWI.

The SRC Lunch Time Chat, entitled the “UNCITRAL Investor-State Dispute Settlement Reform: Why it matters to Caribbean States”, was moderated by Miss Alicia Nicholls, Trade Researcher with the SRC.

The expert panel comprised Dr. Chantal Ononaiwu, Trade Policy & Legal Advisor of the Office of Trade Negotiations (OTN) of the CARICOM Secretariat, and Ms. Andrea Ewart, Esq., Attorney-at-Law and Founder/CEO of the Washington, DC-based DevelopTradeLaw, LLC. Mrs. Nathalie Bernasconi-Osterwalder, Group Director – Economic Law & Policy of the International Institute for Sustainable Development (IISD), provided an international perspective.

The participants, both in person and online, included the university community, attorneys-at-law, trade experts, representatives of Government Ministries, the business community and international organisations.

ISDS is the most common mechanism under investment treaties and contracts for the settlement of disputes between investors and States. It allows an aggrieved private investor, whether a natural person or a company, to bring a claim against a State before an ad hoc international arbitral tribunal.

ISDS has faced growing criticism over the lengthy duration of claims, lack of transparency, inconsistent arbitral decisions and the prohibitive costs for developing countries, which are often the respondents in these claims. One of several ISDS reform initiatives internationally, the UNCITRAL reform discussions commenced in 2017 and are limited to procedural reforms.

Ms. Ewart, who has been representing the Caribbean Association of Industry and Commerce (CAIC) as an observer in the UNCITRAL Working Group sessions, highlighted that Caribbean countries have been involved in the ISDS system mainly as respondents, but also as claimants. She lamented, however, that of the 102 States represented at the April 2019 session of the UNCITRAL Working Group, Cuba and the Dominican Republic were the only two Caribbean States present.

Dr. Ononaiwu, CARICOM’s lead negotiator for investment, reiterated the need for Caribbean countries to become engaged in the UNCITRAL reform discussions and to review their existing bilateral investment treaties (BITs) to determine to what extent they require reform. Caribbean governments, she said, could be guided in this reform process by approaches to the resolution of investment disputes under CARICOM countries’ current investment agreements, their ISDS experiences and CARICOM’s approach to ISDS in recent and future treaty negotiations.

Mrs. Bernasconi-Osterwalder, IISD’s Team Lead for the UNCITRAL reform discussions, stated that although developing countries have traditionally been the respondents in Investor-State disputes, developed countries’ increased negative experiences with the system have been an important factor in getting ISDS reform on the international agenda.

The SRC Lunch Time Chat is an outreach initiative of the SRC which features regional and international experts discussing contemporary issues of trade and development importance to the Caribbean and the world. Previous chats focused on BREXIT, World Trade Organization (WTO) Reform and special and differential treatment.