1. UNCITRAL Transparency Rules &
Transparency Convention
Dr Maxi Scherer
Wilmer Cutler Pickering Hale and Dorr LLP
Queen Mary, University of London

2. Quest for Transparency
• OECD Investment Committee 2005
• NAFTA Interpretative Statements 2001-2004
• Amendment of ICSID Rules 2006
• UNCITRAL Transparency Rules: adopted 11 July 2013,
entered into force 1 April 2014
• UNCITRAL Transparency Convention: adopted 10 December
2014, so far signed by 10 States (Canada, Finland, France,
Germany, Mauritius, Sweden, Switzerland, Syria, UK, US), not
entered into force yet

3. UNCITRAL Transparency Regime
I. Scope of Application of the Rules
II. Content of the Rules
 Publication of Information about and Documents
from the Arbitration
 Submissions in the Arbitration by Third Persons and
Non-Disputing Parties
 Public Hearings
III. Assessment of the Rules and the Convention

4. Scope of Application
The application of the Rules depends on whether
 the arbitration is governed by UNCITRAL
Arbitration Rules or not
 the underlying investment treaty is concluded
before or on or after 1 April 2014
 the Transparency Convention enters into force and
who will be Contracting States

5. UNCITRAL Arbitration Rules Apply
Art 1(1)&(2): Transparency Rules apply if
• arbitration classified as investor-State
• initiated pursuant to an investment treaty
• some form of consent to the Transparency Rules:
distinction according to when treaty was concluded
o On or after 1 April: automatic unless parties opt-
out (Art 1(1))
o Before 1 April: requires opt-in (Art 1(2))

6. No /Other Arbitration Rules Apply
Art 1(9): Transparency Rules apply if
• Arbitration is classified as investor-State
• Parties to the dispute have given express consent to
the Transparency Rules

7. Implications of Transparency Convention
• Convention offers two routes to extend the
application of the Rules to treaties concluded before
1 April 2014 (subject to possible reservations):
 Respondent State and country of the investor are
signatories of the Convention (Art 2(1))
 Respondent State has made a unilaterally binding
offer to arbitrate under the Rules and investor has
accepted the offer (Art 2(2))

8. Scope of Application: Summary
• UNCITRAL Arbitration Rules: TR
apply automatically
• no or other arbitration rules:
specific consent needed
Treaty concluded
before 1 April
2014
• Host State and investor are from
Convention contracting states
• Host State has made unilateral
offer and investor has accepted
Treaty concluded
on or after 1
April 2014

9. Publication of Information (Art 2)
At the outset of the arbitration
• Notice of arbitration communicated to the
repository
• Repository publishes information about the
proceedings
 Name of the parties
 Economic sector involved
 Treaty under which claim is made

10. Publication of Documents (Art 3)
During the arbitration publication of documents
• Always
 Notice of arbitration, response, any other written submissions
 Table listing the exhibits (NOT the exhibits)
 Transcripts of the hearings (where available)
 Orders, decisions, awards
• Upon request
 Expert reports and witness statements
• According to the tribunal’s discretion
 Exhibits and other documents

11. Submission by Third Person (Art 4)
• Definition third person
 Not a disputing party
 Not a non-disputing party to the treaty
• Written submission within scope of dispute
• Procedure
• Criteria to allow submission
 Third person’s interest in the arbitration
 Ability to assist the tribunal in fact/law finding
 Does not disrupt or unduly burden the arbitration
 Does not unfairly prejudice any disputing party

12. Submission by Non-Disputing Party (Art 5)
• Non-disputing Party to the treaty
• Submission
 on issues of treaty interpretation
 on other matters within the scope of the dispute
• Criteria to allow submission
 Same as Art 4: see above
 Avoid submissions that would support the claim of the
investor in a manner tantamount to diplomatic protection

13. Public Hearing (Art 6)
• Principle: oral hearing is public
• Limitations:
o Need to protect confidential information or
integrity of the arbitral process: reference to Art 7
o Logistical reasons

14. Exceptions to Transparency (Art 7)
• All provisions subject to limitations of Art 7
• Confidential or protected information
 Confidential business information
 Protected under the treaty
 Protected under the law of the respondent State
 Protected under the lex arbitri
 Protected under the rules applicable
 Information that would impede enforcement
• Disclosure contrary to security interest of respondent
State (Art 7(5))

15. Assessment of Transparency Regime
BENEFITS
• Provides a more democratic and accountable system
• Positively affects public’s assessment of investor-State
Arbitration
• Furthers consistent interpretation of treaties and
quality of reasoning of awards
• Creates a systemic approach (rather than treaty-by-
treaty- piecemeal approach)

16. Assessment of Transparency Regime
DOWNSIDES
• Uncertainty how successful Convention will be
• Uncertainty how Rules will be interpreted by tribunals
• Limited scope: only treaty-based arbitration
• Too much transparency ?
o need to preserve the efficacy of arbitration
o make sure all players prepared

17. Many thanks !
Dr Maxi Scherer
PhD (Sorbonne), LLM (Cologne), MA (Sorbonne) (Hons)
Wilmer Cutler Pickering Hale and Dorr LLP
49 Park Lane, London W1K 1PS, UK
maxi.scherer@wilmerhale.com
Queen Mary, University of London, School of International
Arbitration
67-69 Lincoln's Inn Fields, London WC2A 3JB, UK
Senior Lecturer in International Arbitration and Energy
Director Queen Mary Paris LLM
http://www.law.qmul.ac.uk/postgraduate/llmparis/index.html
SSRN Author page: http://ssrn.com/author=2149379