Discourses of ISDS reform: a comparison of UNCITRAL Working Group III and ICSID processes

Jean-Michel Marcoux, Andrea K Bjorklund, Elizabeth A Whitsitt and Lukas Vanhonnaeker

Journal of International Economic Law, 2024, vol. 27, issue 2, 314-335

Abstract: The reform of investor-state dispute settlement (ISDS) has been tackled by the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) Working Group (WG) III. Despite different objectives, both processes have relied on written submissions from various stakeholders. What are the structures and the narratives underlying the discourses of ISDS reform in these organizations? This article explores the content of 172 submissions by using mixed methods. It demonstrates that UNCITRAL WG III has involved less structured submissions whose content has expanded the initial mandate, with narratives encapsulating deeper disagreement among participants. By contrast, ICSID operated through a common pattern across submissions and a stronger focus on procedural issues, with less disagreement revealed in its narratives. The article proceeds in three steps. First, it compares the structure of discourses for each reform process by aggregating the content of submissions through computational analysis. Second, it relies on critical discourse analysis to reveal narratives that have emerged in each process. Lastly, the article explores submissions from actors who have participated in both processes to illustrate how they have navigated the tension between structures and narratives when reforming international investment arbitration.

Date: 2024
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