The ISDS reform process at UNCITRAL Working Group III provides a unique opportunity to consider new institutional dispute settlement designs. As EJIL:Talk! Readers will know from earlier blogs on this reform process, a standing mechanism to resolve investment disputes is one of the key proposals in the strengthening of the institutional design, with a Draft Statute for the mechanism up for discussion in this month’s session.
Previous debates on the standing mechanism touted enforcement as a “key feature of any system of justice” and essential to ensure the effectiveness of the standing mechanism (see [62] of the Report on the 38th session). Early work on enforcement options for the standing mechanism suggested limited concerns with compliance, commenting anecdotally that “most decisions by ISDS tribunals were voluntarily complied with” (see [74] of the Report on the 38th session). Consequently, the current Draft Statute for the standing mechanism continues the arbitral tradition of enforcement proceedings in domestic courts as a means to ensure compliance (see Articles 25 and 36). Domestic court enforcement proceedings were considered appropriate “to maximise the chances of having [the standing mechanism’s] decisions enforced” (see [102] of the Report of the Singapore Intersessional).