Some constitutional moments, like the transformation of France’s Third Estate into a National Assembly on 17 June 1789, come with a big blast and are recognizable as such almost immediately by its contemporaries. Others are quieter, more subtle; they creep in rather than explode, but are no less fundamental in transforming socio-institutional arrangements. The work of the United Nations Commission on International Trade Law (
While Working Group III, tasked to address
The creation of a permanent body could ensure the coherent and consistent application of international investment law, contribute to its further development, and help alleviate many of the other legitimacy concerns the present
Moreover, the current
Certainly, the current process entails many risks. It could be stalemated if no consensus is reached or result in a watered-down or imbalanced system if consensus means either the lowest common denominator or overemphasis of state interests, without taking investor interests duly into account. Yet, these risks can be minimized through appropriate working methods and diplomatic finesse. Consensus-building can be supported, for example, by distilling constitutional principles common to
Finally, the inclusion of all stakeholders, public and private, representing business and non-business interests, in the deliberative process can ensure balance and create results that will be broadly accepted by States, investors, and third parties alike. This inclusion could take place not only through observer status in the
An important task for an inclusive process will also be to achieve constructive engagement of the international arbitration community. Many in this community oppose further institutionalization for a variety of reasons. Many consider the criticism of
2017 Roll of Honors – Changes to the Masthead
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For the scope of the mandate, see United Nations, ‘Report of the United Nations Commission on International Trade Law of its Fiftieth Session (3–21 July 2017)’ Official Records of the General Assembly, Seventy-second Session, Supplement No 17,
A third, minority position, supported above all by Brazil, would prefer a state-to-state system.
See Stephan W Schill, ‘Reforming Investor–State Dispute Settlement: A (Comparative and International) Constitutional Law Framework’ (2017) 20
In fact, one of the driving forces in initiating the
The start of the first
See United Nations, Official Records of the General Assembly (n 2) para 264.
For this proposal see Schill (n 4) 657–661.