 So good afternoon everyone and I must confess I'm happy to be the first speaker since it is after midnight in Australia where I am, although I understand some of my colleagues are in the same position as I am. So I'd like to thank you for joining me in this virtual discussion from wherever you are around the world and whatever time it is for you. So my presentation today is focused on one multi-actual negotiation that is currently taking place which is the discussions on possible reform of Investor State Dispute Settlement which is occurring in the UN Commission on International Trade Laws Working Group 3. And in particular those negotiations are increasingly involving some highly creative proposals to implement a range of reforms to ISDS with emphasis on flexibility over consensus in multi-actual treaty making. So I'll begin with a brief refresher on why states are considering ISDS reform and anyone who's familiar with investment law will be familiar with this image which shows some of the networks of bilateral and multi-actual agreements containing investment protection provisions of which there are over 30 to 100. Many of these agreements include ISDS meaning private investors can directly connect litigation against their host state before ad hoc tribunals and arbitral awards can be enforced against the state. The number of ISDS cases has grown exponentially since 2002 and with that growth we've seen a growth of criticism relating to ISDS. Now UN Commission on Working Group 3 has categorised the criticism of ISDS into three key areas. Concerns with the consistency, coherence and correctness of arbitral awards, the cost and duration of arbitral proceedings and ethics and appointments of arbitrators. So in July 2017 UNSATRAL held preliminary discussions about undertaking possible reform of ISDS and while some states express some doubts about doing this in a multi-actual context in general states participating in those commission discussions highlighted that it was preferable to have multi-actual discussions to avoid fragmentation. And there's also an efficiency aspect to developing ISDS reforms multilaterally rather than bilaterally. So states in Working Group 3 generally agree that it is the older or the first generation bilateral investment treaties that pose the greatest legal risk and need to be updated. So what are states options when looking at updating older treaties? Well states can terminate those treaties and deal with the relevant sunsetting clauses or each state can see to negotiate tens or potentially hundreds of treaties bilaterally which is possibly very time consuming or states can consider something else such as a creative multilateral approach that can efficiently update many older treaties in one go. And this is precisely what UNSATRAL Working Group 3 is considering. There is a general agreement in the working group that there needs to be a process to deal efficiently with older bilateral investment treaties. However there is a conflict about how those agreements will be updated. And if you've been following the Working Group 3 process at all so far you'll know that the key potential reforms to ISDS have so far been discussed in very binary terms. So the EU and others have proposed a potential two-tier permanent court with appellate mechanism to replace ad hoc arbitration. However other states have indicated a preference for retaining arbitration potentially with some reforms to bring those older high-risk investment treaties in line with modern treaty practice. So UNSATRAL now finds itself in the third and final stage of its mandate which is developing solutions and what we're seeing is an interesting proposal from some states and scholars to deal with these two dichotomies of different reform packages. What has been proposed is an approach that would accommodate all proposed solutions and this would be achieved by creating a flexible multi-lateral treaty that allows multiple different and sometimes conflicting reform solutions to be developed and then implemented by states on an optional basis. So I'm attempting to demonstrate this with quite an unsophisticated graphic for which I'm sorry but we see here the network of bilateral treaties and states would be looking at developing a flexible multi-lateral umbrella treaty which would include a range of optional reform solutions including institutional or structural reforms such as a court but also individual procedural rules that states can opt to apply to pre-existing bilateral treaties in an efficient and a flexible way. So in practice it would operate something like this although this is somewhat simplified. An individual state like Mauritius opts into apply a procedure or a procedural rule in the overarching multi-lateral treaty and hypothetical treaty partner Austria also opts to apply that same rule or institution. That rule will then apply to ICS disputes that occur under the bilateral treaty between Mauritius and Austria. So this is the common theme between the various proposals that have been presented before working group three to resolve the dichotomy. They each have an option matching mechanics that operate something like this although the exact details and the names of the various proposals do vary between proponents. Unfortunately I don't have time in the context of my presentation today to share the details of those proposals but the common elements that I just want to reiterate is that there would be a choice of procedure between arbitration and a court and second there would be a choice allowing different procedural rules to apply in ad hoc arbitrations under the existing bilateral treaties. Now in developing the different proposals to accommodate these different reform options many proponents have referenced existing treaties as potential models for implementing such a flexible multi-lateral treaty and those are the Mauritius Convention which was a previous treaty reforming transparency in ICS which was also developed by Ancetram. A OECD treaty which modifies the network of bilateral taxation treaties and then Unclos's article 287 which allows a choice of procedure for disputes occurring under Unclos. Again I don't have time to describe how these treaties work in operation but what I do want to highlight about each of these treaties is that they have elements of flexibility with states can opt into certain elements for procedural choices but each treaty also has elements of rigidity and consensus and this is quite different to where the dynamics of the Uncetral discussions seem to be going. Uncetral seems to be looking at a far more ambitious project than has been undertaking by these previous treaties and the multi-lateral treaty that Uncetral was to be developing would have minimum rigidity and maximum flexibility on a range of levels. So of course a flexible approach like this is needed in order to effectively proceed with the negotiations given the lack of consensus. The Uncetral secretariat has noted that a flexible multi-lateral treaty could be the backbone of reforms and a way to ensure greater consistency among states. So one way to think of this is states might be choosing different reform options from the menu but at least they're all at the same restaurant. My research interest is trying to ask well how do states know that they're getting what they think they ordered and in asking this question I'm keeping in mind the end result which is that a multi-lateral treaty will end up governing the applicable rules and procedures in future ISDS cases be they cases before tribunals or before a court. So states need to have a rough idea about how this treaty would actually be applied and interpreted by actual ISDS tribunals or a court in practice. So we need to ask ourselves what will happen in an ISDS dispute and keep in mind that this is in visiting a world where there's several available dispute settlement avenues. Even though Uncetral are only considering procedural reforms so they're not looking at updating the substantive investment protections there will be potential conflicts between disputing parties. There'll be conflicts about how the jurisdiction or the institution sorry about the jurisdiction of the institution or the tribunal and there may also be conflicts about how or whether the procedural rules in the multi-lateral instrument apply to that dispute and I think the simplest way to talk about these technical issues are through examples. The first example is a hypothetical conflict between the disputing parties about the jurisdiction of the institution or the tribunal and in this example an investor might seek to commence ISDS proceedings before an ad hoc tribunal. The respondent might allege that this is the wrong forum and that a multi-lateral court is the right forum based on the proper meaning of the multi-lateral treaty. So how will the tribunal determine this? They will determine their own competence to hear the dispute by looking at how the multi-lateral treaty modifies the underlying or pre-existing investment treaty and to do that they'll be guarded by Article 30 of the Vienna Convention on the Law of Treaties on successive treaties which effectively provides that the later-in-time treaty supersedes the earlier treaty unless the earlier treaty contains a clause stating otherwise so we see it starting to get very complicated already. Investment treaties do contain provisions like that. For example the energy charter treaty which is the most commonly in vote treaty in ISDS has a provision setting out its relationship to other treaties. That provision states that nothing in later treaties affects any provision in the ECT if the ECT is more favorable to the investor or investment. So then the tribunal has another problem. How do they determine what that phrase means? Here they guide it by the general law and treaty interpretation in Article 31 of the VCLT which directs the tribunal to look at the ordinary meaning of the treaty term in context and in the light of its object and purpose of the treaty. This of course is a further complication. What is the context, object and purpose of the treaty? Is it a pre-existing treaty? Is it a multilateral treaty or is it both? And so to conclude I highlight this as one example but it shows some of the technical issues that a tribunal or court will need to grapple with to resolve just one case and you can see how there's potential for there to be divergent decisions on a question such as this by different tribunals but also as between a tribunal and a court. So this is highly relevant to working group 3's concern about consistency and coherence of decisions and has potential implications for the cost and duration of proceedings. So I would be happy to share some some other examples with you if we do have time for that in in the questions but to conclude I think this leads us to a position where states need to think carefully about proposals through the framework of the concerns that motivated reform in the first place to ensure that the desired outcome sorry the outcomes in practice match the desired intentions and it may be that some reforms in the overall package are better suited to implementations through a treaty like this and other reforms. So thank you for your time and I look forward to taking questions.