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UNCITRAL Transparency Rules & Transparency Convention


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UNCITRAL Transparency Rules & Transparency Convention

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