CNUDMI - A-CN.9-WG.III-WP.254

United Nations A/CN.9/WG.III/WP.254

General Assembly

Distr.: Limited 30 June 2025

Original: English

V.25-08556 (E) 2508556

United Nations Commission on International Trade Law Working Group III (Investor -State Dispute Settlement Reform) Fifty-second session Vienna, 22 –26 September 2025

Possible reform of investor-State dispute settlement (ISDS)

Draft provisions on procedural and cross-cutting issues

Note by the Secretariat

Contents Page

I. Introduction ................................ ................................ 3

II. Annotations to the draft provisions on procedural and cross -cutting issues ............ 3

Draft Provision 1: Evidence ................................ ................... 3 Draft Provision 2: Bifurcation ................................ ................. 4 Draft Provision 3: Interim measures ................................ ............ 4 Draft Provision 4: Manifest lack of legal merit ................................ ... 5 Draft Provision 5: Security for costs ................................ ............ 5 Draft Provision 6: Suspension of the proceeding ................................ .. 6 Draft Provision 7: Termination of the proceeding ................................ . 6 Draft Provision 8: Period of time for making the award ............................ 6 Draft Provision 9: Allocation of costs ................................ ........... 7 Draft Provision 10: Counterclaim ................................ .............. 8 Draft Provision 11: Consolidation and coordination of arbitral proceedings ............ 8 Draft Provision 11 bis: Consolidation ................................ ........... 9 Draft Provision 12: Third -party funding ................................ ......... 9 Draft Provision 12 bis: Regulation of third -party funding .......................... 10 Draft Provision 13: Amicable settlement ................................ ........ 11

Draft Provision 11 bis: Consolidation ................................ ........... 9 Draft Provision 12: Third -party funding ................................ ......... 9 Draft Provision 12 bis: Regulation of third -party funding .......................... 10 Draft Provision 13: Amicable settlement ................................ ........ 11 Draft Provision 14: Local remedies ................................ ............ 12A/CN.9/WG.III/WP.254

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Draft Provision 15: Waiver of rights to initiate adjudicatory dispute resolution proceeding 12 Draft Provision 16: Limitation period ................................ ........... 13 Draft Provision 17: Denial of benefits ................................ .......... 13 Draft Provision 18: Shareholder claims ................................ ......... 14 Draft Provision 19: Right to regulate ................................ ........... 15 Draft Provision 20: Assessment of damages and compensation ...................... 15 Draft Provision 21: Joint interpretation ................................ ......... 16 Draft Provision 22: Submission by a non -disputing Treaty Party ..................... 17A/CN.9/WG.III/WP.254

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I. Introduction

1. This Note contains annotations to the draft provisions on procedural and cross -cutting issues ( referred to as “DPs”) in A/CN.9/WG.III/WP.253 , to assist the Working Group in understanding how they would operate and how they relate to each other.

II. Annotations to the draft provisions on procedural and cross-cutting issues

Draft Provision 1: Evidence

2. DP1 addresses the taking of evidence. Paragraph 1 replicates 27(1 ) UARs, while 1 paragraph 2 allows the T ribunal to require the disputing parties to produce evidence, 2 determine the evidence to be produced and set the necessary time frames.

3. Paragraph 3 introduces a document production phase, allowing the Tribunal to

while 1 paragraph 2 allows the T ribunal to require the disputing parties to produce evidence, 2 determine the evidence to be produced and set the necessary time frames.

3. Paragraph 3 introduces a document production phase, allowing the Tribunal to establish such a procedure upon a party’s request and after consultation with the disputing parties. The Working Group may wish to note that the words “consu lt” or “consultation ” are used throughout ( DPs 1, 5, 6, 8, 11 bis, 22 ) in lieu of the phrase “after inviting the parties to express their view ”, which is used in the UNCITRAL Arbitration Rules ( UARs )3 to highlight the interactive engagement between Tribunal and parties . The Working Group may wish to also consider whether referring simply to “documents” in para graphs 3 and 4 is appropriate given the use of “documents, exhibits, and other evidence” elsewhere .

4. Paragraph 3 requires the Tribunal to consider the advantages and disadvantages of document production . Paragraph 4 addresses a different point as it deals with disputes arising out of a party’s objection to the other party’s request for production of documents after the documen t production phase is established , outlining the factors the Tribunal should consider in solving such issues. 4

5. Paragraph 5 addresses the consequence of late submissions. 5 Paragraph 6 covers witnesses, specifying who may testify 6 and reflecting that witness statements should, by default, be submitted in signed written form. 7 Paragraph 7 affirms the discretionary power of the T ribunal to determine the admissibility, relevance, materiality and weight of evidence. 8

6. Paragraph 8 lists instances where the Tribunal would be required to exclude evidence. 9 While the UARs use the phrase “on its own initiative or upon application of a party” , paragraph 8 and other DPs (6, 9 and 20) use “at the request of a disputing

6. Paragraph 8 lists instances where the Tribunal would be required to exclude evidence. 9 While the UARs use the phrase “on its own initiative or upon application of a party” , paragraph 8 and other DPs (6, 9 and 20) use “at the request of a disputing party or on its own initiative”. Regarding subparagraph (c), the Working Group may wish to consider whe ther the reference should be limited to applicable “domestic ” law.10

7. Paragraph 9 stipulates the authority of the Tribunal to order site visits and to conduct on -site inquiries. 11 __________________ 1 UNCITRAL Arbitration Rules ( UARs) 27(1 ). 2 UARs 27(3 ). 3 A/CN.9/1195 , para. 55 and ICSID Arbitration Rules (ICSID Rules) 27(3 ). 4 ICSID Rules 37. 5 UARs 30(3 ). 6 Ibid., 27(2 ), first sentence . 7 A/CN.9/1195 , para. 28 . This is a departure from the second sentence of UARs 27(2 ) and is aligned with ICSID Rules 38(1 ) and the UNCITRAL Expedited Arbitration Rules (EARs) 15(2 ). 8 UARs 27(4 ). 9 A/CN.9/1195 , para s. 35 and 40. See also IBA Rules on the Taking of Evidence in International Arbitration, Article 9(2 ) and (3). 10 A/CN.9/1195 , para. 38. 11 ICSID Ru les 40.A/CN.9/WG.III/WP.254

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Draft Provision 2: Bifurcation

8. DP2 has been align ed with the ICSID Arbitration Rule (ICSID Rules) 42. The

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Draft Provision 2: Bifurcation

8. DP2 has been align ed with the ICSID Arbitration Rule (ICSID Rules) 42. The word “issue” is used for consistency with the UARs .

9. Paragraph 1 mentions examples of issues that can be bifurcated (jurisdictional pleas and damages assessment). 12 While a disputing party may request bifurcation , paragraph 7 allows the Tribunal to bifurcate on its own initiative. 13

10. Paragraph 1 also affirms that a request for bifurcation does not limit th e requesting party’s ability to raise jurisdictional objections . While reference was made to UARs 23, the Working Group may wish to consider adding the square bracketed text or replacing the sentence with the following to make it more generic: “A request for bifurcation shall be without prejudice to the right of the requesting disputing party to raise a plea that the Tribunal does not have jurisdiction” .14

11. Paragraph 2 requires a disputing party to request bifurcation as soon as possible 15 and the Tribunal to set a time period for parties to make submissions. 16

12. Paragraph 3 provides that a request for bifurcation with a jurisdictional plea automatically suspends the proceeding on the merits until the Tribunal decides whether to bifurcate. 17 In contrast and in accordance with paragraph 6, a request for bifurcation without a jurisdiction al plea does not suspend the proceeding until the Tribunal orders bifurcation. 18

13. Paragraph 4 provides a non -exhaustive list of circumstances for the Tribunal to consider when deciding on bifurcation. 19 Paragraph 5 requires the Tribunal to decide within 30 days ,20 fully or partially accept or reject the request with reasons, 21 and fix any period of time necessary for the further conduct of the proceeding. 22

Draft Provision 3: Interim measures

consider when deciding on bifurcation. 19 Paragraph 5 requires the Tribunal to decide within 30 days ,20 fully or partially accept or reject the request with reasons, 21 and fix any period of time necessary for the further conduct of the proceeding. 22

Draft Provision 3: Interim measures

14. Interim measures aim to preserve the parties’ rights pending the final decision of the Tribunal on the merits of the claim. DP3 is based on UARs 26. 23

15. Paragraph 1 affirms that the Tribunal may grant interim measures upon the request of a disputing party, but not on its own initiative. 24

16. Paragraph 2 reflects the decision by the Working Group to omit subparagraph (c) of UARs 26(2 ), which refers to measures to preserve assets out of which a subsequent award may be satisfied. 25 Consequential changes have been made to paragraphs 3 and 4. 26 Paragraphs 5 to 9 are identical to UARs 26(5 ) to (9) .

17. Paragraph 10 limits the Tribunal’s power in granting certain types of interim measures. 27 Subparagraph (b) was placed in square brackets for further consideration by the Working Group, including whether a Tribunal would be in a position to make the necessary assessment given the interim character of these measures. In conjunction, t he Working Group may wish to consider the phrase “without limitation ” in the chapeau of paragraph 2 and also in the context of DP19 (Right to regulate). __________________ 12 ICSID Rules 42( 1). 13 ICSID Rules 42(6 ). 14 A/CN.9/1195 , para . 46. 15 ICSID Rules 42(3 )(a). 16 ICSID Rules 42(3 )(c). 17 ICSID Rules 44(1)(c) and A/CN.9/1195 , paras. 51 –52. 18 ICSID Rules 42(5 ).

15 ICSID Rules 42(3 )(a). 16 ICSID Rules 42(3 )(c). 17 ICSID Rules 44(1)(c) and A/CN.9/1195 , paras. 51 –52. 18 ICSID Rules 42(5 ). 19 ICSID Rules 42(4 ). 20 ICSID Rules 42(3 )(d). 21 UARs 34(3 ) and A/CN.9/1195 , para . 49. 22 ICSID Rules 42(3 )(e). 23 A/CN.9/1195 , para. 56 . 24 UARs 26(1) and A/CN.9/1195 , para. 62. 25 UARs 26(2) and A/CN.9/1195 , para. 58. 26 UARs 26(3) and (4) . 27 A/CN.9/1195 , para s. 60–61.A/CN.9/WG.III/WP.254

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Draft Provision 4: Manifest lack of legal merit

18. DP4 has been aligned with ICSID Rules 41 also reflecting the adjustments made by the Working Group. 28 Prior reference to “early dismissal” in the heading was removed .

19. Paragraph 1 allows a disputing party to object that a claim is manifestly without legal merit 29 and paragraph 4 requires the Tribunal to decide on the objection. 30

However, t he Tribunal cannot do so on its own initiative. 31

20. Paragraphs 2 to 5 outline the procedure to be followed by the disputing parties as well as the Tribunal, indicating the time frames and noting that the objection may relate to both jurisdiction and merits.

21. Paragraph 6 clarifies that a disputing party may still argue later in the proceeding

20. Paragraphs 2 to 5 outline the procedure to be followed by the disputing parties as well as the Tribunal, indicating the time frames and noting that the objection may relate to both jurisdiction and merits.

21. Paragraph 6 clarifies that a disputing party may still argue later in the proceeding that the Tribunal lacks jurisdiction or that the claim lacks legal merit, even if it did not prevail in the procedure provided for in DP4.

22. The allocation of costs arising from the procedure in DP4 is addressed in DP9( 3).

Draft Provision 5: Security for costs

23. DP5 has been aligned with ICSID Rules 53. Security for costs could protect against a party ’s inability or unwillingness to pay costs and discourage frivolous claims.

24. Paragraph 1 provides that an order for security for costs may be made only at the request of a disputing party, and not on the Tribunal ’s own initiative . The term “claim ” in the DPs include s counterclaims , so a party making a counterclaim may also be ordered security for costs.

25. Paragraph s 2 and 3 address the procedure for the parties to request security for costs and for the Tribunal to decide on the request within a 30-day time frame. 32

26. Paragraph 4 provides a non -exhaustive list of circumstances for the Tribunal to consider in determining whether to order security for costs . 33 These include the parties’ ability and willingness to pay, as well as the potential impact of the order on the party concerned. Subparagraph (e) clarifies that the existence of third -party funding is not a stand -alone factor but should be consider ed in conjunction with circumstances listed in subparagraphs (a) to (d). 34

27. Paragraph 5 requires the Tribunal to specify the terms of the security for costs and the time period for compliance. 35 Paragraph 6 addresses sanctions for non-compliance by a party ordered security for costs , which is the suspension of the

27. Paragraph 5 requires the Tribunal to specify the terms of the security for costs and the time period for compliance. 35 Paragraph 6 addresses sanctions for non-compliance by a party ordered security for costs , which is the suspension of the proceeding with respect to that party ’s claim and possible termination there of. Unlike ICSID Rules 53(6 ), which gives the Tribunal discretion to suspend (“may”), this provision mandates suspension (“shall”). On the other hand, while termination of the proceeding remains at the Tribunal’s discretion, it must consider the views of the parties (for example, the other party may wish to continue the proceeding). Overall, this pa ragraph aims to prevent strategic delay s related to security for costs.

28. Paragraph 7 requires the parties to disclose any material change in the circumstances that led the Tribunal to order security for costs. Paragraph 8 allows the __________________ 28 Ibid., paras. 63–69. 29 ICSID Rules 41(1 ). 30 ICSID Rules 41(2 )(e). 31 A/CN.9/1195 , paras. 64 –65. It had also been pointed out that if evidence substantiating a claim was excluded in accordance with DP1(8 ), that should result in the claim being dismissed by the Tribunal although not necessarily based on DP4 ( A/CN.9/1195 , para. 64). 32 ICSID Rules 53(2 ). 33 ICSID Rules 53(3 ) and (4). 34 ICSID Rules 53(4 ). 35 ICSID Rules 53(5 ).A/CN.9/WG.III/WP.254

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Tribunal to modify or terminate the order, but only upon request by a disputing party (see para. 24 above).

Draft Provision 6: Suspension of the proceeding

29. One way to ensure procedural efficiency is to suspend the proceeding under

Tribunal to modify or terminate the order, but only upon request by a disputing party (see para. 24 above).

Draft Provision 6: Suspension of the proceeding

29. One way to ensure procedural efficiency is to suspend the proceeding under certain circumstances. DP6 has been aligned with ICSID Rules 54. 36

30. Paragraph 1 requires the Tribunal to suspend the proceeding when jointly requested by the parties ( for example , if they wish to engage in mediation 37 ). 38

Paragraph 2 grants the Tribunal discretion to suspend the proceeding at the request of a disputing party or on its own initiative, but only after consulting the parties (see also DP11 bis (10)) .39

31. Paragraph 3 requires the Tribunal, when ordering suspension, to specify its duration and any other relevant terms. 40 During the suspension period, applicable procedural time frames are stalled and extended accordingly. Paragraph 4 addresses the potential extension of the suspension.

Draft Provision 7: Termination of the proceeding

32. Another way to ensure procedural efficiency is to provide for the termination of the proceeding. DP7 has been drafted considering UARs 30(1 ), 36 and ICSID Rules 55 to 57, using the term “termination” as used in the UARs.

33. Paragraph 1 requires the Tribunal to order the termination of the proceeding when parties have so requested jointly .41 Paragraphs 2 and 3 address situations where one of the part ies requests termination of the proceeding , which may be objected to by other parties .42 The absence of any objection within the fixed period of time is deemed to constitute consent by the other part ies to the termination.

34. Paragraph 4 introduces a procedure to terminate the proceeding due to the failure of the parties to act. It is based largely on ICSID Rules 57 and supplements UARs 30(1)(a), which address where the claimant has failed to communicate its

34. Paragraph 4 introduces a procedure to terminate the proceeding due to the failure of the parties to act. It is based largely on ICSID Rules 57 and supplements UARs 30(1)(a), which address where the claimant has failed to communicate its statement of claim . The generic phrase “submission of a claim” is used in paragraph 4 , as terminology may differ depending on the applicable rules . The Working Group may wish to consider whether to retain the square -bracketed text in the first sentence. It may also wish to consider whether the DPs should in general contemplate a situation where the Tribunal is yet to be constituted, as reflected in the last sentence of paragraph 4 (for example, DP 10, 12, 15, 17 and 18) .

35. Paragraph s 5 and 6 respectively replicate UARs 36(1 ) and 36(2 ), with the former address ing termination following a settlement and the latter where continuation of the proceeding becomes unnecessary or impossible due to other reasons. The Working Group may wish to consider whether UARs 36(3 ) should also be replicated in the DP.

Draft Provision 8: Period of time for making the award

36. DP8 has been aligned with ICSID Rules 58 and imposes detailed time frame s within which the Tribunal should make the award . __________________ 36 While the UARs do not contain an explicit provision on suspension, tribunals have procedural discretion under UARs 17(1) to suspend the proceeding . UARs 43(4 ) allows for suspension but its application in limited to circumstances when the deposit of costs is not paid in whole or in part. 37 UNCITRAL Model Provisions on Mediation for International Investment Disputes, Provision 3(2). 38 ICSID Rules 54(1 ). 39 ICSID Rules 54(2 ) and (3). 40 ICSID Rules 54(4 ).

37 UNCITRAL Model Provisions on Mediation for International Investment Disputes, Provision 3(2). 38 ICSID Rules 54(1 ). 39 ICSID Rules 54(2 ) and (3). 40 ICSID Rules 54(4 ). 41 ICSID Rules 55(1). 42 ICSID Rules 56.A/CN.9/WG.III/WP.254

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37. Paragraph 1 establishes three distinct time frames for the Tribunal to render its award, depending on the circumstances .43 The time frames commence with the last submission by the parties, which assumes that the Tribunal would typically have been constituted prior to that last submission. The Working Group may wish to choose the formulation to be used in subparagraph (b) (see para. 10 above). 44 The time frames in paragraph 1 may be varied by the parties as indicated by the phrase “unless otherwise agreed by the disputing parties ”. Paragraph 2 clarifies the scope of the term “ last submission ”.45

38. Paragraph 3 addresses the possible extension of the time frame by the Tribunal and combines elements found in ICSID Rules 12(2 ) and the UNCITRAL Expedited Arbitration Rules ( EARs ) 16(2 ). The Working Group may wish to consider the appropriate formulation, noting that paragraph 3 would allow the Tribunal to extend the time frame to preserve the enforceability of its award.

Draft Provision 9: Allocation of costs

39. DP9 is based on UARs 42 , supplemented by ICSID Rules 52. The Working Group may wish to confirm that “costs ” would be defined in accordance with the applicable rules, as is the case in UARs 40(2), with paragraph 5 being the sole exception (see para. 45 below).

40. Paragraph 1 provides the default rule that the unsuccessful disputing party

Group may wish to confirm that “costs ” would be defined in accordance with the applicable rules, as is the case in UARs 40(2), with paragraph 5 being the sole exception (see para. 45 below).

40. Paragraph 1 provides the default rule that the unsuccessful disputing party should bear the costs of the proceeding in whole or in part. 46

41. Paragraph 2 provides a non -exhaustive list of factors to consider when allocating costs between the parties. 47 The word “however ” indicates that allocation between the parties is to be done on an exceptional basis. The phrase “any parts thereof” allows the Tribunal to consider decisions taken in different phases of the proceeding. For example, the Tribunal may assess which claims were upheld or dismissed during the jurisdictional, merits, and quantum stages of the proceedings.

42. With regard to the list in paragraph 2, subparagraph (d) clarifies that the difference in costs as claimed by the parties can be considered when assessing the “reasonableness ” of such costs. Subparagraph (e) is included to address exaggerated claims. Non -compliance by the parties with regard to the disclosure requirements about third -party funding is not mentioned in paragraph 2, as all issues relating to third -party funding are currently capture d in DP12 (see para. 66 below ).48

43. Paragraph 3 sets out the rule for cost allocation in cases where the Tribunal makes an award in accordance with DP4(5).49 In such cases, the costs shall be borne by the unsuccessful party, unless there are “exceptional circumstances” , which is a higher threshold than paragraph 2.

44. Paragraph 4 requir es the Tribunal to request each party to submit a statement of its costs and a written submission on the allocation of costs before allocating costs .50

45. Paragraph 5 provides that expenses related to or arising from third -party funding should not be subject to allocation and be recoverable (see also DP 12 and 12 bis).51

46. Paragraph 6 allows the Tribunal to make an interim decision on costs before the

45. Paragraph 5 provides that expenses related to or arising from third -party funding should not be subject to allocation and be recoverable (see also DP 12 and 12 bis).51

46. Paragraph 6 allows the Tribunal to make an interim decision on costs before the final award, either upon a request of a disputing party or on its own initiative .52 __________________ 43 ICSID Rules 58(1). 44 ICSID Rules 58(1 )(b) . See also ICSID Rule 44(3 )(c) that relates to preliminary objections with a request for bifurcation . 45 ICSID Rules 58(2). 46 UARs 42(1 ), first sentence. There is no such presumption under article 61(2 ) of the ICSID Convention. 47 UARs 42(1 ), second sentence and ICSID Rules 52(1 ). 48 DP12(9 )(b). 49 ICSID Rules 52(2 ) and A/CN.9/1195 , para. 69. 50 ICSID Rules 51. 51 A/CN.9/1004 , para. 93. 52 ICSID Rules 52(3 ).A/CN.9/WG.III/WP.254

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Paragraph 7 requires that decisions on costs are reasoned and eventually form part of the final award. 53

Draft Provision 10: Counterclaim

47. DP10 reflects the different views expressed at the forty -ninth session and the text presented for further consideration following the deliberations. 54

48. Paragraph 1 provides the conditions to be met for a respondent to submit a counterclaim . The Working Group may wish to confirm that the conditions in subparagraphs (a) and (b) should be cumulative ( “and”).55 Subparagraph (b) does not list nor specify the obligations of investors but instead indicate s the instruments where

counterclaim . The Working Group may wish to confirm that the conditions in subparagraphs (a) and (b) should be cumulative ( “and”).55 Subparagraph (b) does not list nor specify the obligations of investors but instead indicate s the instruments where they m ay be found. The Working Group may wish to consider: (i) whether to include the word “close ” in subparagraph (a); 56 (ii) whether to include “domestic law ” as a basis for counterclaims in subparagraph (b); 57 and (iii) whether to include a catch -all phrase “any other instrument binding on the claimant” also in subparagraph (b). 58

49. To avoid T ribunals dismissing counterclaims due to lack of consent by the claimant , p aragraph 2 ensures that the submission of a claim by the claimant constitutes its consent to the respondent’s right to submit a counterclaim . The Working Group may wish to consider whether the consent should be “deemed ” by replacing the word “constitutes ” with “is deemed to constitute” .59

50. Paragraph 3 addresses the time frame for making counterclaims to ensure that counterclaims do not result in delays of proceeding . However, it may be extended beyond the statement of defence, if the Tribunal considers the delay justified. 60

51. Paragraph 4 requires the respondent to waive its right to initiate any adjudicatory dispute resolution proceeding regarding the same claim .61 It ensures that, once a counterclaim is submitted, the respondent cannot pursue the same claim in another forum, thereby avoiding parallel proceedings and potential conflicting decisions

(particularly if the basis of the counterclaim is non -compliance with domestic law) . The phrase “adjudicatory dispute resolution proceeding” in the DP is meant to be broad and refers to any proceeding before a court, administrative tribunal or other competent authority as well as an arbitral tribunal (see DP 14 and 15). 62 It also includes both international and local proceedings (see para. 78 belo w) but does not

broad and refers to any proceeding before a court, administrative tribunal or other competent authority as well as an arbitral tribunal (see DP 14 and 15). 62 It also includes both international and local proceedings (see para. 78 belo w) but does not include means of amicable settlement nor annulment/set aside/appellate proceedings. The Working Group may wish to consider whether the paragraph needs to be retained in light of DP 15 (see para . 81 below) .

Draft Provision 11: Consolidation and coordination of arbitral proceedings

52. With regard to consolidation, two options (DPs 11 and 11 bis) have been prepared for consideration. DP11 relies exclusively on the parties ’ agreement to consolidate or coordinate, whereas DP11 bis also allows a part y to seek consolidation.

The Working Group may wish to consider whether to develop both options ( possibly in conjunction with other DPs that address concerns about multiple proceedings, for example, DPs 6, 10, 15 and 18), as well as the principles of res judicata and lis pendens .63 __________________ 53 ICSID Rules 52(4 ). 54 A/CN.9/1194 , paras. 71–81. 55 Ibid., para. 72. 56 Ibid., para. 73. 57 Ibid., para s. 74 –76. 58 Ibid., para. 77. 59 Ibid. , para. 78. 60 UARs 21(3 ). 61 A/CN.9/1194 , paras. 76 and 81. 62 A/CN.9/1196/Add.1 , paras. 76 and 79. 63 Res judicata ensures that matters which have been finally adjudicated cannot be re -litigated between the same parties, thereby safeguarding the finality of decisions. Lis pendens addresses the situation where the same dispute is pending before multiple for ums , offering a basis for

63 Res judicata ensures that matters which have been finally adjudicated cannot be re -litigated between the same parties, thereby safeguarding the finality of decisions. Lis pendens addresses the situation where the same dispute is pending before multiple for ums , offering a basis for procedural safeguards to avoid parallel proceedings and the risk of conflicting outcomes.A/CN.9/WG.III/WP.254

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53. DP11 adapts ICSID Rules 46 to apply to arbitrations not administered by an institution. 64 Unlike other DPs, reference is expressly made to “arbitrations ” and “arbitral tribunal ”, as it is difficult to apply the provision to other dispute resolution proceedings provided for in the Agreement.

54. Paragraph 1 notes that the consent of the parties is the basis of consolidation or coordination . Paragraphs 2 and 3 distinguish between consolidation and coordination , further noting that only arbitrations concerning the same respondent can be consolidated. 65 With regard to paragraph 2, it may be necessary to clarif y whether “all” aspects of the arbitrations need to be consolidated or only those aspects specifically “ sought to be consolidated ” by the parties. In the latter case, aspects not consolidated would continue to be handled by the respective arbitral tribunals.

55. Paragraph 4 assumes that there is no institution to facilitate consolidation or coordinatio n. It requires the parties to jointly propose the terms for the conduct of the consolidated or coordinate d arbitration s to the pre -established arbitral tribunals and to consult with them. For example, this may involve determining which tribunal would be tasked with the consolidated proceeding (or how it should be composed) as well as specifying any applicable rules and a procedural schedule. The terms should also addr ess the termination of any proceeding subject to consolidation. The pre-established tribunals are then required to issue orders to implement the agreed terms.

Draft Provision 11 bis: Consolidation

well as specifying any applicable rules and a procedural schedule. The terms should also addr ess the termination of any proceeding subject to consolidation. The pre-established tribunals are then required to issue orders to implement the agreed terms.

Draft Provision 11 bis: Consolidation

56. DP11 bis provides a mechanism to consolidat e multiple claims submitted to