Using the Crowd to Design a Multilateral Instrument on ISDS Reform
THE AUTHOR:
Annette Magnusson, Climate Change Counsel
As the marathon of UNCITRAL Working Group III, also known as ISDS reform, is approaching its’ final stretch, the working group now turns its attention to the question on how to capture the outcome of the reform process in one single instrument. Diverging views on principal issues have been visible in the room ever since the first session in 2017 and may also influence the design of any future multilateral instrument. Could crowdsourcing be used to assist states in this endeavour?
A crowdsourcing element may provide efficacy as governments wrap up their work on the ISDS reform process. It could equip states with innovative solutions not only from UNCITRAL members and observers, but from additional experts outside the four walls of the meeting room.
The use of crowdsourcing to develop international instruments is rare, but, as illustrated by the Stockholm Treaty Lab, it is effective.
A Future UNCITRAL Multilateral Instrument
Discussions on the format of the instrument by which the results on ISDS reform may be captured have been present from the very beginning of the process.
Several working papers on a potential design of a multilateral instrument on ISDS reform have been discussed, and governments have also submitted separate proposals. From the background materials, we learn that a “coherent and flexible approach” will be a key characteristic of any future instrument. Formats vary between a single text or “a menu of relevant solutions”. It has been held that any future instrument should “allow States to opt for the reform options of their choice” which could be in the form of “core and opt-in elements”.
The instrument thus should both enhance the impact of the core outcomes of the reform process and enable states to retain the freedom to implement the reform of their choice, with the latter including additional flexibility enabling the application of reform elements in a select group of treaties. Challenging prerequisites. Add to this, diverging views on which provisions should be characterised as core provision.
This tug-of-war between, on the one hand, an all-encompassing instrument, and, on the other, a model which preserves the right to pick and choose, has been present from the first day of deliberations.
As incisively stated in the most recent (October 2025) WG III report: “how to incorporate the statute(s) as protocol(s) to the Multilateral Instrument on ISDS Reform (“MIIR”) would need further consideration.” This is UNCITRAL language for a divided room.
The different views of states on MIIR are not unique, as illustrated, for example, in deliberations on the Multilateral Investment Court (analysed in a separate series on this blog).
In this setting, how could a future MIIR be successfully designed? After five years of searching for an answer to this question within the working group, perhaps now is a good time to bring in the crowd.
Crowdsourcing in a Nutshell
Crowdsourcing is usually defined as a practice of problem-solving (could also be used to collect information, opinions, and similar tasks) from a large group of people, i.e., “the crowd”. It involves engaging people from outside one single organization, usually through a digital platform.
Crowdsourcing builds on the idea that the collective wisdom and expertise of this world is greater than what can possibly be housed in one organization (even when this organization is the United Nations), and by reaching out to the crowd, it taps into expertise otherwise lost for a problem that needs to be solved.
Crowdsourcing has been around for centuries. Just think of the Longitude Prize offered by the British Government in 1714, which successfully paved the way for the chronometer. Today it is regularly used by organizations like NASA, Google, IBM and many more (for inspiration, a visit to XPrize Foundation is recommended).
A technical challenge is one thing, but could crowdsourcing also be used to disentangle knots of international policy? Could it assist states and capture the elements of ISDS reform in a format acceptable to all states involved, without losing the efficiency of the reform process?
The Stockholm Treaty Lab example from 2017 demonstrates that the principle of crowdsourcing may indeed be applied in an international law setting. Maybe it could serve as potential inspiration for crowdsourcing on ISDS Reform.
Crowdsourcing International Law – Learning from Example
The Stockholm Treaty Lab crowdsourcing challenge was launched in 2017 with the objective to develop a binding legal framework at international level to support investments needed to meet the Paris Agreement targets.
The challenge was posted on a global crowdsourcing platform, and after the submission deadline in early 2018, twenty-two teams submitted proposals for model treaties supporting green investments. Each submission also included extensive argumentation (some of which would easily have qualified as a complete thesis). In total, more than 300 individuals from 25 jurisdictions participated in responding to the challenge presented on the Stockholm Treaty Lab platform.
Participants came to represent a wide range of expertise. This diverse crowd of experts would likely not have had the chance to collaborate on issues of international law if not for the crowdsourcing context. The multidisciplinary approach paid off as teams presented truly innovative solutions.
Submissions were assessed by a jury representing equally mixed backgrounds. Details about team members and affiliations were removed prior to assessment, to preserve the integrity of the decision-making process. In the end, two treaties were held to meet the standards set up at the beginning of the challenge, and presented as winners of the competition (a full description of the competition and submissions is available in Annette Magnusson, ‘Foreword: The Story of the Stockholm Treaty Lab’ (2019) 36 Journal of International Arbitration (1) 1–6).
An UNCITRAL crowdsourcing exercise could follow a similar model. The objective would be to supply member states with options for the implementation of ISDS reform, and to ensure a flexible yet impactful application of the decisions taken in WG III since 2017.
Importantly, the crowdsourcing would not remove any decision-making power from states. Rather, it would feed into the regular UNCITRAL process, just as working papers from the UNCITRAL Secretariat, submissions from member states, or contributions from observers, do today.
Framing the UNCITRAL Crowdsourcing
In any crowdsourcing, formulating the problem, the mandate of the crowd, is key. This sets the boundaries, setting out criteria which participants will have to meet, and against which submissions will be assessed.
A first step in establishing the UNCITRAL crowdsourcing, therefore, is to define the objective and translate it into a set of criteria.
The first discussions on the format of the MIIR appeared in 2019. In a joint submission, the governments of Chile, Israel, and Japan advocated for the idea of a “suite of options” which states could “adopt either individually, or in their entirety as a package”. This approach, by which “a menu of relevant solutions” was created to allow states to “choose and adopt the best solution based on their specific needs and interests” would accommodate the necessary amount of flexibility, the submission stated.
In a second submission from the same states, now joined by the governments of Mexico and Peru, principal options meeting the objective to “retain the flexibility to tailor the solution to its policy needs and preferences” were introduced. The submission pointed out that because “many of the concerns identified by the Working Group have arisen out of first-generation agreements that lack these subsequent innovations, an approach that would allow for the incorporation of these provisions into existing treaties that lack them could be a valuable tool to address some of the concerns identified to date.”
The full Working Group reiterated the need for a flexible approach in October 2020, and in September 2022, the Working Group once again highlighted the importance of “coherence and flexibility” in a future multilateral instrument on ISDS reform.
In summary, key themes permeating all discussions in the Working Group have been coherence and flexibility. Views that the instrument shall cover both existing and future investment treaties have been equally present.
Additional language of relevance for framing is found in the summary of the discussion of the 39th session, when the Working Group said that a future instrument should:
- respond to identified concerns (in particular consistency and coherence) and promote legal certainty in ISDS;
- establish a flexible framework, whereby States could choose the reform elements – including the mechanism for ISDS and relevant procedural tools, also accommodating future developments in the field of ISDS;
- provide temporal flexibility to allow continued participation by States Parties;
- allow for the widest possible participation of States to achieve an overall reform of ISDS; and
- provide for a holistic approach to ISDS reform, clearly setting forth the objective of achieving sustainable development through international investment.
The importance of preserving the autonomy of states to choose reform elements, for example, through an opt-in mechanism, has since been repeated.
The Way Forward
The steps that would need to be taken to use crowdsourcing in the UNCITRAL process are relatively straightforward.
Criteria need to be developed. As described above, the WF III has already formulated several key objectives that could be used for this purpose. Criteria could focus on a detail, or the full concept, of the new multilateral instrument.
A suitable crowdsourcing platform is identified. Perhaps an UNCITRAL challenge should be posted in more than one forum? States and observers could assist in spreading the word.
As a suggestion, a review committee is appointed. The committee would receive and process submissions for future dissemination in the working group in condensed form. The methodology could build on experiences gained when member states have been invited to submit comments between WG III sessions in the past.
A timetable for submissions is set. For efficiency, the timetable should also include deadlines for next steps, including the review committee’s work. Ideally, this would include indicative deadlines for when the ideas received will be shared with the full Working Group.
Crowdsourcing need not be limited to technical challenges. As the example of the Stockholm Treaty Lab illustrates, it may also be used to assist member states of a UN body to develop international policy. A crazy idea? Well, as the saying goes, “the day before something is a breakthrough, it is a crazy idea” (credit HeroX).
ABOUT THE AUTHOR
Annette Magnusson is an independent expert in international climate law, international investment law and dispute resolution, and the role of lawyers in the climate transition.
Annette has more than 25 years’ experience in international law, including from global law firms. Prior to Climate Change Counsel, Annette served as Secretary General of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), where she founded the Stockholm Treaty Lab. She is the co-editor of several international publications, including Investment Arbitration and Climate Change (2023), International Arbitration in Sweden. A Practitioner’s Guide (2021), Arbitrating for Peace (2016), and producer of the documentary The Quiet Triumph: How Arbitration Changed the World (2017).
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
