Government's Response to Proposed Reforms to Investor-state Arbitration Regime

Asst Prof Mahdev Mohan asked the Minister for Law what is the Ministry's position on the proposed reforms to the investor-state arbitration regime, particularly the creation of a stand-alone appellate body in the current regime or a new international investment court as a multilateral permanent tribunal.

MinLaw works closely together with our partners in the legal industry to steer Singapore's overall development and growth as a hub for international dispute resolution, including in the area of investment arbitration. Top international arbitral institutions which handle investment arbitration, such as the International Centre for Settlement of Investment Disputes (ICSID), already have a presence or regularly undertake investment arbitration in Singapore. The Singapore International Arbitration Centre this year also released a set of Investment Arbitration Rules to handle such cases.

Investor-State dispute settlement (ISDS) typically involves arbitration of investment-related disputes that arise against the backdrop of international investment agreements or free trade agreements. In these cases, investors may directly bring a foreign state to arbitration, without having to involve their home state as a party to the proceedings. Some concerns have been raised over the present regime for ISDS, such as the independence of arbitrators, the lack of a mechanism to dismiss unfounded claims early, and the absence of a review mechanism to ensure coherence and correctness in arbitral decisions, amongst others. A number of countries, including Singapore, have sought to address some of these concerns in their recent trade and investment treaties, for example, by adopting codes of conduct for arbitrators and building in expedited claims dismissal mechanisms into such agreements.

Some quarters of the international legal community have advocated for more structural reform, such as the establishment of an appellate body for appeals against decisions of arbitral tribunals, or a new multilateral investment court as a permanent tribunal. These proposed reforms have more recently been taken up in discussions at various international fora. The details are not yet fully developed. For instance, in July this year, the United Nations Commission of International Trade Law (UNCITRAL) tasked one of its constituent Working Groups to consider concerns regarding ISDS and whether reform was desirable in light of any of the identified concerns. ICSID also recently announced that it will be commencing a review of its rules and regulations to address a number of related issues.

Singapore welcomes a discussion of the issues arising out of the current ISDS framework. We take the view that it is important to first carefully consider what the gaps are, and all of the proposed reforms – whether they involve fine-tuning the existing ISDS framework or structural reform – in detail. To this end, MinLaw has been participating in the international dialogue on this issue. We look forward to the development of an ISDS framework that is fair, workable, and cost-effective.