1 Some of the most important of these are the International Centre for Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration (PCA) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC).
2 The study found that 82 percent of the costs of a case go to both parties’ legal defence teams. The arbitrators, lawyers and arbitration tribunal that issues the ruling receive 16 percent of the costs. The final 2 percent go to administrative costs.
3 Different kinds of rules can be used during ISDS proceedings. The rules created by UNCITRAL are the second-most frequently used (applied in 295 ISDS cases, according to the latest count). Usually, ICSID rules are used (applied in 508 ISDS cases). These rules are created by the International Centre for Settlement of Investment Disputes which is affiliated with the World Bank.
4 The Netherlands is not a member, but is in attendance as an ‘observer state’. Thomas Nauta of the Dutch Ministry of Foreign Affairs represents the Netherlands in the debate. He has tweeted about the talks multiple times: https://twitter.com/ThNauta.
5 SOMO writes about this in a 2018 report: ‘Claims against EU member states increased by 150 percent over the past five years, while claims against the rest of the world increased by 50 percent.’ Read more (in Dutch): https://www.somo.nl/nl/wp-content/uploads/sites/2/2018/01/50-jaar-ISDS.pdf
6 In the CETA trade agreement, the EU and Canada have agreed to work together to establish the MIC. The idea is less popular in Japan and the US, according to Kelsey.
7 A report on the criticisms that have been expressed but were not included in the minutes from the sessions can be read here: https://www.iisd.org/itn/2018/12/21/multilateral-isds-reform-is-desirable-what-happened-at-the-uncitral-meeting-in-vienna-and-how-to-prepare-for-april-2019-in-new-york-martin-dietrich-brauch/
8 The following countries were all absent from the session: Armenia, Honduras, Hungary, Lebanon, Lesotho, Liberia, Libya, Nigeria, Panama, Sierra Leone, Belarus and Zambia.
9 We have been able to review these confidential e-mails but have decided not to publish them out of concern for the privacy of those involved.
10 Spelliscy regularly represents the Canadian government in ISDS cases. Due to a lack of consensus on his appointment, an election had to be held during the first session of UNCITRAL Working Group III in November 2017. He narrowly won with 24 of the 44 votes. According to Bart-Jaap Verbeek, the lack of consensus was due to the fact that Canada already supports Europe in its proposal to establish a permanent multilateral investment court. As a legal advisor to the Canadian government, Spelliscy was by no means seen as a neutral figure, says Verbeek.
11 Kaufmann-Kohler has meanwhile been replaced by Malcolm Langford, an academic who is not an ISDS lawyer. Kaufmann-Kohler is very much in demand as an arbiter, with the second highest number of ISDS cases to her name (49). She is also currently presiding as an arbiter over ongoing ISDS cases against five countries that are participating in the working group (Madagascar, Croatia, Hungary, Chile and Slovakia). In addition, she is serving simultaneously as a member of the Swiss delegation.
12 This tally is based on the attendance list distributed on location among participants, which we have been able to inspect. This is possibly a low count, as we have been unable to establish for each of the participants whether he or she has ever worked in the ‘ISDS sector’. For a detailed explanation of our methodology, see: http://authentiekejournalistiek.org/documenten/ToelichtingcijfersUNCITRAL.pdf
13 Within the ISDS debate, a distinction is made between procedural and substantive law. Procedural law defines how legal processes play out whenever individuals do not abide by the law, whereas substantive law is the actual legislation (the rights and obligations).
14 Last November, the secretariat prepared a menu of possible ISDS reforms. The menu can be seen starting on page 15 of this document: https://undocs.org/en/A/CN.9/WG.III/WP.149
15 Another important reason for his resignation, says Van Harten, was the lack of clear action in response to his request to disclose the financial interests of members of the Academic Forum in ISDS, such as their involvement in ISDS cases, although he says concrete steps have now been taken by publishing this list: https://www.jus.uio.no/pluricourts/english/projects/leginvest/academic-forum/disclosure-register-isds-academic-forum.html