When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than others? Are you moving toward a safe landing zone, even if it is some distance away? The second concerns the products you are developing in those negotiations. Are some options more aerodynamic than others? Are some more likely to achieve lift off? What component parts need to be designed and built? Is there an overall plan about how the pieces might be put together in the end?
These are questions we thought about as we watched the UNCITRAL process unfold in late January. On one level, it might have been the week when one could have expected to see some turbulence. Since the process started three years ago, this was the first time that the Multilateral Investment Court was formally on the agenda for discussion and it is clear that the views of states are divided on its merits. But on Monday, the Chair adeptly steered the group from high level questions (Is an investment court better than ISDS? Is a particular state for or against such a court?) to more technical engineering work (e.g., What are the ways of constructing an appeal? Which options are available for financing a permanent body? What issues need to be resolved regarding enforcement? What are the options for appointments?).
This approach meant that, instead of being an arena in which states rethink the system’s fundamentals (eg what are the purposes of investment treaties) or engage in high level policy positioning (eg do they support a court or arbitration), the Working Group began to feel a bit like a team of engineers breaking down a complex design challenge into its component parts. Each part undergoes preliminary analysis and troubleshooting in the Working Group, with states suggesting potential models or raising design concerns and considerations with the Secretariat, and tasking the Secretariat with further research and with creating prototypes for each part. Many delegates proved themselves to be serious engineers, coming well-prepared to engage in technical questions. In the process, momentum toward a panoply of reforms seems to be building as participants work collectively on individual design issues.
By Anthea Roberts and Taylor St John
