Session 4

This session will reflect on the ongoing reform of ISDS (at UNCITRAL and ICSID) and explore certain features in the Asian context.

 

Select issues regarding the reform of ISDS mechanisms may include transparency and third party- funding (TPF).

 

Transparency: Asian countries have been relatively more conservative in adopting the 2014 Mauritius Convention on Transparency. Are there reasons for this and possible gaps in the Convention that are causing Asian countries to move at a relatively slower pace? For example, should there be an Asia- tailored version of the Mauritius Convention for transparency in ISDS proceedings? Otherwise, what can the international arbitration community do to promote the adoption of the Mauritius Convention in Asian countries?

 

Third-Party Funding: The international arbitration community recently has reacted to TPF. For example, ICSID has adopted a rule on TPF. In Asia, leading arbitral institutions in common law jurisdictions have addressed the TPF concept under their arbitration rules. In contrast, the majority of civil law jurisdictions in Asia have pre-existing regulations that may conflict with the TPF concept. For example, Korea has specific domestic legislation in place (e.g., Attorney-at-Law Act) that may conflict with the concept of TPF in adjudicatory proceedings, including arbitration. When some Asian domestic statutes/regulations clash with newly emerging global mechanisms or practices for ISDS markets, what should be the ideal way to resolve this ‘clash’ for the benefit of all the stakeholders, including Asian service users? This discussion will also address whether and how third-party funders can take a different approach tailored to the Asian ADR market.