Abstract
Has the performance of UNCITRAL’s mandate evolved over time in relation to the governance of international investments? The chapter argues that UNCITRAL’s activities concerning investment law may be divided in two discrete instants. A first period is marked by an attentive performance of UNCITRAL’s mandate to promote “the progressive harmonization and unification of the law of international trade”, focused only on the private dimensions of international investment transactions. A second period begins recently with UNCITRAL’s involvement in the governance of investment arbitration. In particular, the project of ISDS reform has been undertaken at UNCITRAL under a presumably expanded understanding of its mandate and mission. It is, however, unclear whether this reconstruction of UNCITRAL’s mandate merely reflects a stronger engagement with public international law or an attempt to pursue activities of institutional imagination seemingly geared towards the transnational constitutionalization of the international investment regime. In any event, the new set of tasks conducted by UNCITRAL will require changes to the methods and practices historically developed for the transnational harmonization of municipal commercial law. This chapter aims at contributing to a reflection on the obstacles that UNCITRAL may face in the years to come regarding its evolving role as one of the centres for the transnational governance of international investments.
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Notes
- 1.
See Jessup (1956).
- 2.
See Jessup (1956), p. 1.
- 3.
- 4.
See Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 41, para. 210.
- 5.
On this matter, the Secretary-General’s report read as follows: “It would be essential to assure the most active and broadly-based support of Governments, and at the same time to provide for the participation of recognized authorities in this field of law. It would therefore appear advisable to provide that the membership of such a commission should be composed of an appropriate number of States, elected by the General Assembly, and to provide further, that the representatives of these States, appointed by them to serve on the commission, should be persons of eminence in the field.” Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 44, para. 226.
- 6.
Background paper by the delegation of Hungary, Steps to be taken for the progressive development of private international law with a view to promoting international trade, A/C.6/L.571, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), pp. 5–12.
- 7.
The Hungarian proposal was an initiative of Endre Ustor, a Hungarian diplomat and jurist who is usually attributed the paternity of UNCITRAL. Ustor was a member of the International Law Commission and of the Institut de Droit International.
- 8.
Among other issues, the Hungarian submission discusses the previous work of the League of Nations for the development of international law, as well as explores the scope of the idea of progressive development of international law within the UN system. In particular, it notes that the expression “progressive development of international law” was crafted in the United Nations Conference on International Organizations, held in 1945 in San Francisco, as a way of striking a balance between stability and change in international law. The term came to be incorporated in Article 13 of the Charter, paragraph 1(a). In particular, the document asked “whether the United Nations General Assembly’s activities aimed at the progressive development of international law under Article 13, paragraph 1 a, of the Charter can be extended beyond the traditional area of public international law.” Background paper by the delegation of Hungary, Steps to be taken for the progressive development of private international law with a view to promoting international trade, A/C.6/L.571, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 8, para. 32.
- 9.
In relation to the centrality of the law on international trade for economic development, see Background paper by the delegation of Hungary, Steps to be taken for the progressive development of private international law with a view to promoting international trade, A/C.6/L.571, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 11, para. 56.
- 10.
See Background paper by the delegation of Hungary, Steps to be taken for the progressive development of private international law with a view to promoting international trade, A/C.6/L.571, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, (United Nations Publication, New York, 1971), pp. 9–10.
- 11.
See Note by the Secretariat, Unification of the law of international trade, A/C.6/L.572, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), pp. 13–17.
- 12.
Note by the Secretariat, Unification of the law of international trade, A/C.6/L.572, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 14, para. 6.
- 13.
Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), pp. 18–66.
- 14.
Professor Schmitthoff, an Anglo-German scholar specialized in the law of international trade and serving at the City of London College, was considered a leading authority in the field of international trade law.
- 15.
Professor Argúas was an Argentinean judge and scholar specialized in private international law.
- 16.
Dr. Taslim O. Elias was the Nigerian minister of justice at the time and would become a president of the International Court of Justice.
- 17.
Professor Eörsi was a Hungarian scholar specialized in comparative private law.
- 18.
Professor Reese was an American scholar specialized in private international law.
- 19.
Professor Yasseen was an Iraqi scholar specialized in public international law.
- 20.
Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 20, para. 10.
- 21.
Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 21, paras 11–12.
- 22.
See UNCTAD’s resolution 45 (III) of 18 May 1972, Vol. I: Report and Annexes, TD/180, (United Nations Publication, New York, 1973).
- 23.
- 24.
See General Assembly resolution, Declaration on the establishment of a New International Economic Order, A/RES/S-6/3201 (1 May 1974), https://digitallibrary.un.org/record/218450?ln=en (last accessed 29 June 2020).
- 25.
General Assembly resolution, Programme of action on the establishment of a New International Economic Order, A/RES/S-6/3202 (1 May 1974), https://digitallibrary.un.org/record/218451?ln=en (last accessed 29 June 2020).
- 26.
General Assembly resolution, Charter of Economic Rights and Duties of States, A/RES/29/3281 (12 December 1974), https://digitallibrary.un.org/record/190150?ln=en (last accessed 29 June 2020).
- 27.
For the Working Group’s propositions, see Report of the Working Group on the New International Economic Order, A/CN.9/176 (14–25 January 1980), https://undocs.org/en/A/CN.9/171 (last accessed 29 June 2020), para. 39 (d). Despite the decision taken at the twelfth session on the membership of the Working Group, the Commission revisited its previous position and decided that all of its member-states should be part of the Working Group on the NIEO.
- 28.
The drafting of the guideline was largely entrusted to the Commission’s Secretariat, and it was “generally agreed that the Secretariat in carrying out the preparatory work should have a certain measure of discretion”. See Report of the United Nations Commission on International Trade Law on the Work of its Thirteenth Session, A/35/17, para. 141, https://undocs.org/en/A/35/17(SUPP) (last accessed 29 June 2020). For the decision on entrusting the Secretariat with the task of drafting the legal guide, see records of the Commission’s fourteenth session, see Report of the United Nations Commission on International Trade Law on the Work of its Fourteenth Session, A/36/17, https://undocs.org/en/A/36/17(SUPP) (last accessed 29 June 2020), para. 84, 2(b).
- 29.
For the text of the guide, see UNCITRAL Legal Guide on Drawing up International Contracts for the Construction of Industrial Works, A/CN.9/SER.B/2 (7 December 1987), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/legal_guide_e.pdf (last accessed 29 June 2020). For the full record of the Commission’s twentieth session, see Report of the United Nations Commission on International Trade Law on the Work of its Twentieth Session, A/42/17, https://undocs.org/en/A/42/17 (last accessed 29 June 2020), paras 306–316.
- 30.
Report of the United Nations Commission on International Trade Law on the Work of its Nineteenth Session, A/41/17, https://undocs.org/en/A/41/17 (last accessed 29 June 2020), para. 243.
- 31.
See Report of the United Nations Commission on International Trade Law on the Work of its Twenty-First Session, A/43/17, https://undocs.org/en/A/43/17 (last accessed 29 June 2020), para. 35. Later on, the working group on international payments was designated to deal with this unfolding of the NIEO’s agenda. See Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Third Session, A/45/17, https://undocs.org/en/A/45/17(SUPP) (last accessed 29 June 2020), para. 17.
- 32.
See Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Fifth Session, A/47/17, https://undocs.org/en/A/47/17(SUPP) (last accessed 29 June 2020), para. 137.
- 33.
See Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Sixth Session, A/48/17, https://undocs.org/en/A/48/17(SUPP) (last accessed 29 June 2020), para. 258.
- 34.
This decision was taken at the Commission’s twenty-seventh session, held in 1994. For the records of the session, see Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Seventh Session, A/49/17, https://undocs.org/en/A/49/17(SUPP) (last accessed 29 June 2020), para. 97.
- 35.
See Report of the United Nations Commission on International Trade Law on the Work of its Twenty-Seventh Session, A/49/17, https://undocs.org/en/A/49/17(SUPP) (last accessed 29 June 2020), paras 307–310.
- 36.
Report of the United Nations Commission on International Trade Law on the Work of its Thirteenth Session, A/35/17, https://undocs.org/en/A/35/17(SUPP) (last accessed 29 June 2020), para. 136.
- 37.
The Secretary-General’s report substantiating the creation of UNCITRAL surveys the different methods of unification of domestic private law. See Report of the Secretary-General, Progressive development of the law of international trade, A/6396, reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), pp. 40–41. For a scholarly work on the topic, see David (1968).
- 38.
- 39.
See Report of the United Nations Commission on International Trade Law on the work of its forty-first session, A/63/17, https://undocs.org/en/A/63/17(SUPP) (last accessed 29 June 2020), para. 314.
- 40.
See Kaufmann-Köhler and Potestà (2016), Can the Mauritius Convention serve as a model for the reform of investor-State arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism? Analysis and Roadmap, https://www.uncitral.org/pdf/english/CIDS_Research_Paper_Mauritius.pdf (last accessed 1 June 2020), pp. 27–31.
- 41.
See Report of the United Nations Commission on International Trade Law on the work of its fiftieth session, A/72/17, https://undocs.org/en/A/72/17 (last accessed 29 June 2020), para. 264.
- 42.
See General Assembly resolution 2005 (XXI), The establishment of UNCITRAL (17 December 1966), reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 65, section I.
- 43.
Compare, for instance, the facts surrounding the election of the chairperson for the working group on the reform of Arbitration Rules (working group II) and for the working group on ISDS Reform (working group III). On the one hand, working group II chose its chairperson without any controversy and through the normal UNCITRAL consensus-based process. Michael E. Schneider, who was part of the Swiss delegation, was appointed chair. Schneider was not a government official, but rather a partner and founding member of Lalive—a leading law firm in arbitration. On the other hand, the election of the chairperson for working group III was surrounded by controversy and had to be done through secret ballot—something unusual in the context of UNCITRAL. Finally, the chairperson elected was Shane Spelliscy, a state official acting as the Director and General Counsel for the Trade Law Bureau of the Government of Canada. For information on the election of the chairperson of Working Group II, see Report of the Working Group on Arbitration and Conciliation on the work of its forty-fifth session (Vienna, 11–15 September 2006), A/CN.9.614, https://undocs.org/en/A/CN.9/614 (last accessed 29 June 2020), para. 11. For the records on the election of the chairperson of Working Group III, see Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Vienna, 27 November – 1 December 2017), https://www.uncitral.org/pdf/english/workinggroups/wg_3/WGIII-34th-session/930_for_the_website.pdf (last accessed 29 June 2020), paras 11–15.
- 44.
Fischer-Lescano and Teubner (2004), p. 1006.
- 45.
Neves (2013), p. 19.
- 46.
- 47.
- 48.
See General Assembly resolution 2005 (XXI), The establishment of UNCITRAL (17 December 1966), reproduced at UNCITRAL Yearbook, Volume I: 1968–1970, https://www.uncitral.org/pdf/english/yearbooks/yb-1968-70-e/yb_1968_1970_e.pdf (last accessed 29 June 2020), p. 65, section I.
- 49.
In particular, the European Union and its member states have been main advocates for the systemic nature of changes needed in ISDS, proposing as a solution to these systemic concerns the creation of a two-tier standing court. See the Submission from the European Union, Possible reform of investor-State dispute settlement (ISDS), A/CN.9/WG.III/WP145 (12 December 2017), https://undocs.org/en/A/CN.9/WG.III/WP.145 (last accessed 29 June 2020); and Submission from the European Union and its Member States, Possible reform of investor-State dispute settlement (ISDS), A/CN.9/WG.III/WP159/Add.1 (24 January 2019), https://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1 (last accessed 29 June 2020).
- 50.
- 51.
Many of the normative instruments which structure transnational investments can fall under the normative framework produced by UNCITRAL, such as concessions contracts, public-private partnerships, production sharing agreements. Similarly, the default jurisdiction that governs these contracts are also particularly influenced by UNCITRAL’s work. It is clear, then, that UNCITRAL, beyond its work on ISDS, has already left a lasting imprint on the governance of the micro-dimensions of international investments.
- 52.
In relation to the diverse constituency of the Commission’s working group III, it is important to draw attention to the Academic Forum and to the Practitioner Group. Both groups of stakeholders, one of academics active in the field of ISDS and the other of lawyers and arbitrators practicing ISDS, are acting as observers and aim at influencing the outcome of the ISDS reform process. See Report of the United Nations Commission on International Trade Law on the work of its fifty-first session, A/73/17, https://undocs.org/en/A/73/17 (last accessed 29 June 2020), para. 144.
- 53.
See Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-sixth session, A/CN.9/964, paras 6–9, https://undocs.org/en/A/CN.9/964 (last accessed 29 June 2020).
- 54.
The image is attributed to Anthea Roberts. See Roberts (2013), p. 45.
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Rodrigues, B.S. (2021). UNCITRAL and the Governance of International Investments. In: Gourgourinis, A. (eds) Transnational Actors in International Investment Law. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-60679-4_1
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