CNUDMI - A CN.9.1269

United Nations A/CN.9/1269

General Assembly

Distr.: General 19 June 2026

English only

V.26-09098 (E) 2 40626 2 50626 2609098

United Nations Commission on International Trade Law Fifty-ninth session New York, 29 June –10 July 2026

Compilation of comments on the draft supplementary provisions on the conduct of proceedings to resolve international investment disputes (A.CN.9/1246)

The present note reproduces comments received from institutions on the draft supplementary provisions on the conduct of proceedings to resolve international investment disputes ( A/CN.9/1246 ). A total of twelve submissions received as of 19 June 2026 are reproduced below in the form in which they were received, with minor formatting and editorial adjustments.A/CN.9/1269

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Compilation of comments

A. Association for the Promotion of Arbitration in Africa (APAA) .......................... 2

B. Asociación Latinoamericana de Arbitraje (ALARB) ................................ ... 5

C. Comitê Brasileiro de Arbitragem (CBAr) ................................ ............ 10

D. Georgian International Arbitration Centre (GIAC) ................................ ..... 11

E. Santiago Arbitration and Mediation Centre (CAM Santiago) ............................ 12

F. Young Arbitration Practitioners from the Arbitration Center of Mexico (CAM) and the Mediation and Arbitration Center of the National Chamber of Services of Mexico

(CANACO) ................................ ................................ ... 14

G. Organization of Islamic Cooperation (OIC), Arbitration Centre .......................... 16

H. Shanghai International Arbitration Commission (SHIAC) ............................... 20

I. Shenzhen Court of International Arbitration (SCIA) ................................ ... 35

G. Organization of Islamic Cooperation (OIC), Arbitration Centre .......................... 16

H. Shanghai International Arbitration Commission (SHIAC) ............................... 20

I. Shenzhen Court of International Arbitration (SCIA) ................................ ... 35

J. Singapore International Arbitration Centre (SIAC) ................................ .... 38

K. Stockholm Chamber of Commerce (SCC) Arbitration Institute .......................... 45

L. International Federation for Investment Law and Arbitration (IFILA) ..................... 52

A. Association for the Promotion of Arbitration in Africa (APAA)

Introduction

1. The Association for the Promotion of Arbitration in Africa (APAA) welcomes the opportunity to submit comments on document A/CN.9/1246 , containing the draft supplementary provisions on the conduct of proceedings to resolve international investment disputes (“supplementary provisions” or “SPs”).

2. APAA is a pan -African association, headquartered in Yaoundé (Cameroon) and founded in Geneva in 2005, whose membership encompasses arbitral institutions, legal practitioners, academics, States, and other stakeholders across the African continent. APAA has acti vely followed the work of WG III since the inception of the ISDS reform mandate in 2017 and participates as observer in the Commission ’s deliberations.

3. The present comments are submitted in response to the Secretariat ’s invitation to provide observations from an institutional perspective, with particular attention to the possible application of the SP to arbitrations not governed by the UNCI TRAL Arbitration Rules (UARs) (Chapter III.C of document A/CN.9/1246 ). APAA also provides targeted technical observations on provisions where specific drafting questions remain open.

General observations

4. APAA commends the Working Group for the significant progress achieved in developing a coherent set of procedural provisions addressing longstanding concerns regarding the consistency, duration, and cost of ISDS proceedings. APAA supports

questions remain open.

General observations

4. APAA commends the Working Group for the significant progress achieved in developing a coherent set of procedural provisions addressing longstanding concerns regarding the consistency, duration, and cost of ISDS proceedings. APAA supports the overall object ive of greater procedural predictability and efficiency in investorState arbitration.

5. Two considerations inform APAA ’s reading of the SPs and the observations set out below. First, many African States participate in ISDS proceedings as respondents, and the SPs should operate to reduce the procedural and financial imbalances that can arise in such proceedings. Second, inv estment arbitrations involving African parties are frequently administered under institutional rules other than the UARs. The utilityA/CN.9/1269

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of the SPs will therefore depend, in substantial measure, on the regime applicable to arbitrations outside the UAR framework. Comments on Chapter III

Application to arbitrations not governed by the UNCITRAL Arbitration Rules

6. This issue is of particular relevance to APAA and its members. A significant number of investment disputes involving African parties are administered under institutional rules other than the UARs – including ICSID Rules, ICC Rules, CRCICA Rules, CCJA Rules , and AFSA Rules. The question of whether, and under what conditions, the SPs may apply to such proceedings is therefore central to the practical impact of the reform.

Support for the Application of the SPs to Non -UAR Arbitrations

7. APAA strongly supports the Commission ’s intention to make the SPs available for use in arbitrations not governed by the UARs (para. 50). This approach reflects the pluralistic reality of international investment arbitration and would allow African States and investors to benefit from UNCITRAL ’s ISDS -specific procedural framework regardless of the arbitral rules chosen.

The Need for a Clear Conflict Rule

8. APAA notes that paragraph 52 identifies the need to clarify the relationship

the pluralistic reality of international investment arbitration and would allow African States and investors to benefit from UNCITRAL ’s ISDS -specific procedural framework regardless of the arbitral rules chosen.

The Need for a Clear Conflict Rule

8. APAA notes that paragraph 52 identifies the need to clarify the relationship between the SPs and the applicable institutional rules. APAA offers the following observations.

9. Where the applicable institutional rules are silent on a matter addressed by the SPs, the SPs should apply to fill the procedural gap. This gap -filling function is the primary utility of the SPs in a non -UAR context and should be confirmed expressly in any implementing instrument.

10. Where the applicable institutional rules and the SPs address the same procedural matter, APAA considers that the SPs should generally prevail, given that they have been specifically calibrated for ISDS. A clear hierarchy clause – akin to Article 3 of the draft Protocol in Chapter III.A – should be developed for the non -UAR context.

11. With respect to institutional oversight, many institutional rules vest the administering institution with supervisory functions (scrutiny of awards, approval of time extensions). APAA suggests that such oversight should be preserved unless expressly incons istent with the SPs, and that guidance on this interaction would benefit practitioners and tribunals operating outside the UAR framework.

Consent Mechanism and Model Clauses

12. APAA considers that model clauses should be developed – as was done for the UNCITRAL Transparency Rules – to facilitate the incorporation of the SPs by reference in investment contracts, bilateral investment treaties, and institutional arbitration agreemen ts. Model clauses tailored to non -UAR settings, including the rules of African arbitral institutions, would be of particular practical value and would materially increase the uptake of the SPs in the regions where ISDS reform is most needed.

Technical Observations on Specific Provisions

Provision XI (Third -party funding) read in conjunction with Provision V (Security for costs)

materially increase the uptake of the SPs in the regions where ISDS reform is most needed.

Technical Observations on Specific Provisions

Provision XI (Third -party funding) read in conjunction with Provision V (Security for costs)

13. APAA supports the disclosure obligations set out in Provision XI and considers them essential to the integrity of ISDS proceedings. The present observation concerns the relationship between disclosure and the ordering of security for costs.

14. Paragraph 4(e) of Provision V provides that the existence of third -party funding is a relevant circumstance in determining whether to order security for costs, to beA/CN.9/1269

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considered in conjunction with the factors listed in subparagraphs (a) to (d). The Notes to the Commission (paras. 15 -16) address the relationship between this provision and the disclosure requirement in SP XI(2)(c) – namely, whether a funder ’s declared willingness to cover an adverse costs decision should reduce or eliminate the grounds for ordering security for costs.

15. APAA’s position is as follows: disclosure of a funding arrangement should not, of itself, constitute a sufficient basis for ordering security for costs, nor should it create a presumption in favour of such an order. Conversely, full and timely disclosure of the information required by Provision XI should not automatically preclude the Tribunal from ordering security for costs where the other circumstances in SP V(4)(a) to (d) so warrant.

16. In particular, APAA considers that: – a funder ’s commitment to cover adverse costs decisions, as disclosed pursuant to SP XI(2)(c), is a relevant – but not determinative – factor. The Tribunal should retain full discretion to assess the legal enforceability of such a commitment and the funder ’s actual financial capacity; – the square -bracketed text in SP V(4)(e) – “including whether the third -party funder agrees to cover any adverse decision on costs” – and the sentence beginning “For

full discretion to assess the legal enforceability of such a commitment and the funder ’s actual financial capacity; – the square -bracketed text in SP V(4)(e) – “including whether the third -party funder agrees to cover any adverse decision on costs” – and the sentence beginning “For greater certainty” should be read as preserving, not limiting, the Tribunal ’s discretion. APAA supports their retention in the final text, provided the Commentary makes clear that disclosure and coverage commitments do not operate as automatic defences against a security for costs order.

17. This approach respects the balance the Working Group sought to strike in SP V: third-party funding is relevant but not a standalone trigger; disclosure is required but does not exhaust the Tribunal ’s inquiry.

Provision VIII – Period of time for making the award

18. APAA notes that Provision VIII introduces mandatory time frames for making awards: 60 days (manifest lack of merit), 180 days (bifurcated phase), and 240 days

(all other cases). While APAA supports the objective of reducing undue delays, it wishes to draw the Commission ’s attention to implementation concerns from an African institutional perspective.

19. In proceedings involving African State respondents, tribunals frequently face challenges related to the complexity of factual records, the volume of documentary evidence, and the need for translation into working languages. APAA observes that the 240 -day p eriod in paragraph 1(c) may prove difficult to meet in complex merits phases and that tribunals may be required to invoke the extension mechanism in paragraph 3 as a matter of course rather than as an exception.

20. APAA recommends that the Commentary to Provision VIII acknowledge that the time frames are aspirational benchmarks and that extensions under paragraph 3 should not be treated as grounds for challenge or adverse inference. It further suggests that the Commi ssion consider whether paragraph 3 should be elaborated to provide clearer guidance on what constitutes “special circumstances” in the ISDS context.

Provision IX – Allocation of costs

should not be treated as grounds for challenge or adverse inference. It further suggests that the Commi ssion consider whether paragraph 3 should be elaborated to provide clearer guidance on what constitutes “special circumstances” in the ISDS context.

Provision IX – Allocation of costs

21. APAA endorses the “costs follow the event” principle in paragraph 1 as the default rule and supports the exclusion of success fees and third -party funding costs from recoverable costs (paragraph 5).

22. APAA recommends that the Commentary confirm that this default rule applies with equal force when a State respondent prevails, and that successful respondents – including developing States – are entitled to full recovery of reasonable costs.A/CN.9/1269

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Provision X – Consolidation and coordination of arbitrations

23. APAA notes that Provision X addresses only consensual consolidation and acknowledges that a mechanism for unilateral consolidation at the request of one party is reserved for future treaty -level development.

24. APAA urges the Commission to prioritise this work, given the practical importance of consolidation for African State respondents facing multiple related claims arising from the same regulatory measure.

Implementation and capacity -building

25. The practical impact of the SPs will depend not only on their substantive content but on the capacity of States, institutions, and practitioners to invoke and apply them effectively. APAA observes that the procedural tools introduced by the SPs – early dismissal, security for costs, third -party funding disclosure – require familiarity with arbitral procedure that is unevenly distributed across jurisdictions.

26. APAA recommends that any instrument implementing the SPs include provision for accompanying measures: practical guides, model procedural orders, and targeted technical assistance for jurisdictions with developing arbitration infrastructure. This is consist ent with UNCITRAL ’s mandate to consider the needs of developing countries and economies in transition, and with APAA ’s own mission of promoting arbitration capacity across the African continent.

Conclusion

technical assistance for jurisdictions with developing arbitration infrastructure. This is consist ent with UNCITRAL ’s mandate to consider the needs of developing countries and economies in transition, and with APAA ’s own mission of promoting arbitration capacity across the African continent.

Conclusion

27. APAA reiterates its strong support for the ISDS reform process and for the adoption of Supplementary Provisions that are capable of broad and effective application, including to arbitrations conducted under non -UNCITRAL institutional rules. APAA trusts tha t these comments will be of assistance to the Commission in its deliberations at the fifty -ninth session.

B. Asociación Latinoamericana de Arbitraje (ALARB)

1. This document sets forth ALARB ’s comments on document A/CN.9/1246 , “draft supplementary provisions on the conduct of proceedings to resolve international investment disputes.

2. ALARB respectfully submits the following observations and proposed amendments (as added in square -brackets and underlined) to selected Supplement ary Provisions for the Commission ’s consideration.

Provision I: Evidence

3. This section proposes amendments to Provisions I(1) and I(5). Provision I (1) currently reads: Each disputing party shall have the burden of proving the facts relied on to support its claim or defence.

4. ALARB proposes adding the following exception: Each disputing party shall have the burden of proving the facts relied on to support its claim or defence [, except when the Tribunal finds compelling reasons to shift such burden of proof] .

5. Current Provision I (1) reproduces Article 27(1) of the UNCITRAL Arbitration Rules (UAR), which in turn codifies the generally accepted principle onus probandi actori incumbit. Notwithstanding the aforementioned, investor -state dispute settlement (ISDS) decisions have recognized that in certain circumstances, shifting the burden of proof may be appropriate. 1In the ISDS context, this may be the only

__________________

actori incumbit. Notwithstanding the aforementioned, investor -state dispute settlement (ISDS) decisions have recognized that in certain circumstances, shifting the burden of proof may be appropriate. 1In the ISDS context, this may be the only __________________ 1 E.g., Antonio del Valle Ruiz et al. v. Kingdom of Spain , PCA Case No. 2019 -17, Final Award, 13 March 2023, para. 497; Niko Resources (Bangladesh) Ltd. v. Bangladesh Oil Gas and Mineral Corporation (Petrobangla), Bangladesh Petroleum Exploration and Production Company Limited (Bapex) , ICSID Case No. ARB/10/18, Decision on the Corruption Claim, 25 FebruaryA/CN.9/1269

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means of establishing the facts –for both claimants and respondents –in cases involving corruption or illegal conduct, seizure of facilities and documents, or other exceptional circumstances where the party not bearing the burden of proof may possess materia l evidence.

6. This proposal seeks express acknowledgment of the tribunal ’s authority to shift the burden of proof under certain exceptional circumstances. Even when it has been argued that such authority may be implied in the tribunal ’s general powers, 2an express provision eliminates further debate and reduces litigation costs for the benefit of the parties.

7. Provision I (5) currently reads: If a disputing party, duly invited by the Tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time without showing sufficient cause for such failure, the Tribunal may make the award on the evidence before it.

8. ALARB proposes the following amendments: If a disputing party, duly invited

[ordered/requested] by the Tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time without showing sufficient cause for such failure, the Tribunal may make the award on the evidence before it [, notwithstanding any other measure that the Tribunal deems appropriate, including adverse inferences and costs allocation].

the issuance of the award by which the dispute is finally decided, the Tribunal orders a disputing party, for example [and without limitation], to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the process itself; or __________________ 2019, para. 796; Marvin Roy Feldman Karpa v. United Mexican States , ICSID Case No. ARB(AF)/99/1, Award, 16 December 2002, para. 177. 2 Gary B. Born, International Commercial Arbitration (Third Edition), §15.09[B]; Antonio del Valle Ruiz et al. v. Kingdom of Spain , PCA Case No. 2019 -17, Final Award, 13 March 2023, para. 497. 3 Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration (2017), pp. 263 –272.A/CN.9/1269

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(c) Preserve evidence that may be relevant and material to the resolution of the dispute.

13. Assuming WG III accepts the Secretariat ’s comment to include the phrasing “and without lim itation”, which ALARB endorses, we propose including the following scenarios to the non -exhaustive list of provisional measures: [(e) Refrain from initiating or continuing domestic proceedings that threaten the integrity of the arbitral process or aggravate the existing dispute; or] [(f) Refrain from initiating or continuing proceedings before any other forum that would undermine the jurisdiction of the Tribunal or the enforceability of the eventual award.]

14. The current list of three illustrative categories in Provision III (2) could benefit from a wider illustrative scope. Rule 47(1) (2022) of the International Centre for Settlement of Investment Disputes (ICSID) Rules enumerates four categories of interim measures, and the UNCITRAL Model Law on International Commercial

fails to do so within the established period of time without showing sufficient cause for such failure, the Tribunal may make the award on the evidence before it [, notwithstanding any other measure that the Tribunal deems appropriate, including adverse inferences and costs allocation].

9. Current Provision I (5) largely reproduces Article 30(3) of the UAR. WG III has previously considered changing the verb “invite” to “request” and discussed including additional consequences for nonproduction of documents. This proposal invites reconsideration of that approach.

10. Document production is a widely used tool in international arbitration. It assists parties and tribunals in establishing the facts of the case and reaching a just resolution.

It also narrows the gap toward amicable settlement by reducing factual disputes. For this mechanism to function effectively, tribunals must be empowered to impose sanctions for noncompliance. Otherwise, from a rational perspective, parties would not have sufficient incentives to diligently search and exhibit the documents requested by the opposing party.

11. In practice , Article 30(3) of the UAR has been interpreted as permitting adverse inferences and cost allocation. 3 Given the lacunae in arbitration rules, tribunals frequently reference the IBA Rules on the Taking of Evidence in International Arbitration in procedural orders, which expressly provide for sanctions in cases of noncompliance with document production order s. Accordingly, a specific provision addressing sanctions for noncompliance would codify current practice and underscore the importance and mandatory character of document production if agreed.

Provision III: Interim measures

12. This section proposes amendments to Provision III(2), which currently reads:

III. 2: An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the Tribunal orders a disputing party, for example [and without limitation], to:

(a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to

from a wider illustrative scope. Rule 47(1) (2022) of the International Centre for Settlement of Investment Disputes (ICSID) Rules enumerates four categories of interim measures, and the UNCITRAL Model Law on International Commercial Arbitration, Article 17(2), provides four enumerated purposes. A more detailed list would guide tribunals unfamiliar with ISDS -specific constraints and harmonize practice across the wide range of procedural rules under which the Supplementary Provisions may apply.

15. Proposed subparagraph (e) addresses the stay of parallel domestic proceedings – one of the most frequently recognized categories of interim measures in ISDS practice. In Tokios Tokelés v. Ukraine , the tribunal ordered both parties to “refrain from, suspend and discontinue, any domestic proceedings, judicial or other ... which might prejudice the rendering or implementation of an eventual decision or award of this Tribunal or aggravate the existing dispute.” 4The formulation “that threaten the integrity of the arbitral process” ties the measure to its functional justification, avoiding sovereignty concerns. The general requirements of paragraph 3 implicitly preserve the high threshold acknowledged in Plama v. Bulgaria .5

16. Proposed subparagraph (f) addresses anti -suit injunctions, which protect the tribunal ’s jurisdiction and the integrity of the chosen dispute resolution mechanism.

These are directed at a party (not at a court) and have been recognized as a species of provisional measures under ICSID Article 47 and UNCITRAL Rules Article 26. In SGS v. Pakistan , the tribunal recommended a stay of parallel arbitration proceedings to protect the exclusivity of the ICSID mechanism. 6 In Plama v. Bulgaria , the claimant requested the discontinuance of all related Bulgarian proceedings, 7 demonstrating that requests for antisuit relief are a standard feature of ISDS practice.

Provision VIII: Period of time for making the award

17. This section proposes amendments to Provision VIII(1) and, consequently, the deletion of Provision VIII(2) 8.

demonstrating that requests for antisuit relief are a standard feature of ISDS practice.

Provision VIII: Period of time for making the award

17. This section proposes amendments to Provision VIII(1) and, consequently, the deletion of Provision VIII(2) 8.

18. Provision VIII(1) currently reads: The Tribunal shall make the award as soon as possible. In any event and unless otherwise agreed by the disputing parties, the

Tribunal shall make an award no later than: (a) 60 days after the last submission, if the award is made [in accordance with Provision IV, paragraph 5] [pursuant to an objection based on the claim being manifestly without legal merit]; __________________ 4 Tokios Tokelés v. Ukraine , ICSID Case No. ARB/02/18, Order No. 1, 1 July 2003. 5 Plama v. Bulgaria , ICSID Case No. ARB/03/24, Order on Provisional Measures, 6 September 2005, para. 43 6 SGS v. Pakistan , ICSID Case No. ARB/01/13, Procedural Order No. 2, 16 October 2002 7 Plama v. Bulgaria , ICSID Case No. ARB/03/24, Order on Provisional Measures, 6 September 2005, paras. 1 –2 8 “A statement of costs and submission on the allocation of costs pursuant to Provision IX, paragraph 4 shall not be considered a submission for the purposes of paragraph 1.”A/CN.9/1269

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(b) 180 days after the last submission, if [the] [an] award is made [in accordance with Provision II] [in a separate phase of the proceeding following bifurcation]; or (c) 240 days after the last submission in all other cases.

19. ALARB proposes the following amendments: The Tribunal shall make the

accordance with Provision II] [in a separate phase of the proceeding following bifurcation]; or (c) 240 days after the last submission in all other cases.

19. ALARB proposes the following amendments: The Tribunal shall make the award as soon as possible. In any event and unless otherwise agreed by the disputing parties, the Tribunal shall make an award no later than:

(a) 60 days after [the date on which the Tribunal declares the proceedings closed] the last submission , if the award is made in accordance with Provision IV, paragraph 5; (b) 180 days after [the date on which the Tribunal declares the proceedings closed] the last submission , if an award is made in a separate phase of the proceeding following bifurcation; or (c) 240 days after [the date on which the Tribunal declares the proceedings closed] the last submission in all other cases. [1bis. The Tribunal shall declare the proceedings closed when it is satisfied that all submissions and evidence have been received. Unless otherwise declared by the Arbitral Tribunal, proceedings are deemed to be closed in 60 days from the last submission scheduled in the procedural calendar of each case, or after the last briefing on an issue that should be decided in the form of an award or partial award pursuant to the applicable rules.]

20. A statement of costs and submission on the allocation of costs pursuant to Provision IX, paragraph 4 shall not be considered a submission for the purposes of paragraph 1.

21. The “last submission” trigger in Provision VIII(1) could create ambiguity and allow strategic behaviour by parties aimed at delaying the award. While current paragraph 2 excludes cost statements, other late filings –corrections to transcripts, responses to tribunal questions, unsolicited communications, supplementary authorities –could inadvertently or strategically restart the clock. The “closing of proceedings” formulation provides a clear, formal procedural milestone to serve as dies a quo, placing the det ermination within the tribunal ’s control.

22. The practical impact of Provision VIII will be greatest in UNCITRAL -governed

authorities –could inadvertently or strategically restart the clock. The “closing of proceedings” formulation provides a clear, formal procedural milestone to serve as dies a quo, placing the det ermination within the tribunal ’s control.

22. The practical impact of Provision VIII will be greatest in UNCITRAL -governed proceedings, which currently contain no deadline for rendering the award. For proceedings under ICSID Rules –which already impose a deadline under Rule 58(1) – the ICSID -specific deadline would continue to apply. The Supplementary Provisions need not replicate the ICSID approach and may instead adopt the formulation best suited to the UNCITRAL context, where they fill a genuine gap.

Provision IX: Allocation of costs

23. This section proposes the elimination of Provision IX (5), which currently reads:

5. Costs incurred by a disputing party that: (i) amount solely to a reward or bonus to its legal representatives based on the outcome of the proceeding and in excess of the remuneration of the work performed; or (ii) relate to or arise from third -party funding, shall not be included in the costs of the proceeding.

24. Parties should be permitted to recover costs related to legal representatives ’ contingency or success fees and bonuses, as well as costs arising from third -party funding. The allocation of costs and the possibility to apply the loser -pays rule serve important functions in international arbitration. The prevailing party may be compensated for th e costs of participating in a proceeding that should not have taken place, and the losing party internalizes the costs it caused. Parties are incentivized to act dili gently in assessing their case, implement a bona fide defence , and settle amicably (if appropriate).A/CN.9/1269

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25. Fees contingent upon the outcome of t