Appointing authorities and the selection of arbitrators in investor-state dispute settlement – OECD

4 April 2018 – The OECD-hosted OECD Freedom of Investment (FOI) Roundtable – with participants from over 50 governments from around the world — has been assessing investor-state dispute settlement (ISDS) since 2011. Currently the Roundtable is addressing a work program on arbitrators, adjudicators and appointing authorities in ISDS. 

The Roundtable is now considering appointing authorities in ISDS. The appointing authority’s most important role is to appoint the chair of an arbitral tribunal if the parties or co-arbitrators are unable to agree on one.  Initial input on a consultation paper on appointing authorities and the selection of investment arbitrators was sought between December 2017 and February 2018 from arbitration institutions, legal experts, business and civil society representatives.

Download the consultation paper

Consultation partners were invited to comment on any issues of interest. Comments received have been provided to the governments participating in the Roundtable.

Download the compilation of comments

The consultation paper and comments received are being made available in order to foster informed public and inter-governmental debate. Further work relating to the paper will include additional research, follow-up and revisions including to address comments received, and analysis of additional arbitration institutions. The Roundtable will further consider the role of appointing authorities and the selection of adjudicators at a forthcoming meeting.

List of contributors

ARBITRATION INSTITUTIONS

• International Centre for Settlement of Investment Disputes (ICSID)

• Permanent Court of Arbitration (PCA)

• Arbitration Institute of the Stockholm Chamber of Commerce (AI-SCC)  

• International Chamber of Commerce (ICC)  

• Singapore International Arbitration Centre (SIAC) 

COMMENTS FROM STAKEHOLDERS AND EXPERTS   

• Business and Industry Advisory Committee to the OECD (BIAC)  

• Andrea Kay Bjorklund (Professor, McGill University Faculty of Law, Canada) 

• Congyan Cai (professor, Xiamen University School of Law, China); Mingxin Zhu (assistant professor, Soochow University Kenneth Wang School of Law, China); Jie Liu (PhD candidate, Xiamen University School of Law, China)   

• Center for International Environmental Law (CIEL)   

• Lise Johnson (Columbia Center on Sustainable Investment (CCSI))   

• Joel Dahlquist Cullborg (PhD Candidate and Lecturer, International Investment and Trade Law, Uppsala University, Sweden)   

• European Federation for Investment Law and Arbitration (EFILA)   

• Rob Howse (Professor of International Law, New York University Law School, United States)   

• Mark Feldman (Professor of Law, Peking University School of Transnational Law, Shenzhen, China)   

• Shotaro Hamamoto (Professor, Kyoto University Graduate School of Law, Japan)   

• Nathalie Bernasconi (Group Director, Economic Law and Policy, International Institute for Sustainable Development (IISD))   

• Joshua Karton (Associate Dean for Graduate Studies and Research; Associate Professor, Queen’s University Faculty of Law, Kingston, Canada)   

• Joost Pauwelyn (Professor of International Law, Graduate Institute, Geneva, Switzerland)  

• Martins Paparinskis (Reader in Public International Law, University College London, Faculty of Laws, United Kingdom)  

• Rodrigo Polanco  (Assistant Professor of International Economic Law at the University of Chile, senior researcher/lecturer at World Trade Institute, Bern, Switzerland)   

• David W. Rivkin (Partner, Debevoise & Plimpton, New York, United States; Immediate Past President, International Bar Association)  

• Stephan Schill (Professor of International and Economic Law and Governance, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam, Netherlands)  

• Engela Schlemmer (Professor, University of the Witwatersrand, Johannesburg, South Africa)  

• Hi-Taek Shin (Professor of International Investment Law, Seoul National University School of Law, Korea)

• Catharine Titi (Research Scientist at the French National Centre for Scientific Research (CNRS) and Member of the CREDIMI, Law Faculty of the University of Burgundy, France) 

• Gus Van Harten (Professor, Osgoode Hall Law School, Canada)

• Jason Yackee (Professor of Law, University of Wisconsin-Madison, United States) 

Consultation documents

Consultation paper

Compilation of comments

Documents and links

Who chooses the judges (and should they)?

Adjudicator Compensation Systems and ISDS

More about the OECD-hosted FOI Roundtable process

Summary records of OECD Roundtables on Freedom of Investment

Contact

David Gaukrodger
david.gaukrodger@oecd.org