This project brings together two sets of work about reforming the investment treaty system. As a web made up of more than 3000 treaties and multiple institutions, the investment treaty system provides an ideal case study for examining the way actors design and manage complex, contested and evolving systems.

The first is a series of blogs and articles written with Dr Taylor St John at the University of St Andrews, Scotland about the United Nations Commission on International Trade Law (UNCITRAL) investor state dispute settlement reform (ISDS) reform process.

The second is a series of capacity building workshops for states in the Asia-Pacific with UNCITRAL, Associate Professor Wolfgang Alschner at University of Ottawa, Canada, Dr Taylor St John at the University of St Andrews, Scotland, and Mr Richard Braddock at Lexbridge Lawyers.

Reforming the Investment Treaty System at UNCITRAL

In 2017, UNCITRAL gave one of its working groups a mandate to investigate the possible reform of investor–state dispute settlement. At the time, many states were voicing increasing concern about investor–state arbitration, but they had not converged on which reforms of the system to pursue. Three main camps initially emerged about whether and how to reform investor–state arbitration: the incrementalists, the systemic reformers, and the paradigm shifters. Over time, this has led to a new UNCITRAL work plan being approved in 2021 in which the negotiators agreed to adopt a flexible and adaptable approach to developing a variety of proposed reforms that states can adopt on an opt-in basis.

Anthea and political scientist Dr Taylor St John have followed the UNCITRAL process from its inception. Adopting a para-ethnographic approach, they publish a blog series on EJIL: Talk! in which they provide analysis and commentary on the UNCITRAL process in almost real time. They are also writing a series of articles about what the UNCITRAL process can teach us about how states and other actors go about designing reforms and managing change in complex systems, the role of insiders and outsiders in spurring different types of innovative reforms, and the shifting nature of the actors at UNCITRAL that are recasting it as a forum for international law-making.

Impact

Workshops about Negotiating and Reforming the Investment Treaty System

As part of a project funded by the Australian Department of Foreign Affairs and Trade, Anthea leads capacity building workshops with a variety of states in the Asia-Pacific region on negotiating and reforming investment treaties. This team includes Associate Professor Wolfgang Alschner from the University of Ottawa, Canada, Dr Taylor St John from the University of St Andrews, Scotland, and Mr Richard Braddock from Lexbridge Lawyers. UNCITRAL’s Asia-Pacific office has participated in these workshops.

As part of this project, Associate Professor Wolfgang Alschner is developing a world-class toolkit for negotiators to use in analysing over 3000 investment treaties. This toolkit builds on the Electronic Database of Investment Treaties (EDIT), the most extensive and freely available collection of the full text of international investment agreements. The toolkit allows users to track treaty provisions over time through a user-friendly and customisable dashboard. It also enables negotiators to compare the treaty practice of different states to quickly identify areas of convergence and divergence. EDIT and the early versions of the toolkit are already consulted by states and facilitate evidenced-based decision making, for example, in the UNCITRAL ISDS reform process.

Featured publications and resources

waiting for key list and pdf

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