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Uncitral Rules on Transparency in Treaty-Based Investor-State Arbitration

Published online by Cambridge University Press:  20 January 2017

Keith Loken
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Extract

On July 11, 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules). The new Transparency Rules are the product of three years of negotiations in UNCITRAL. The Transparency Rules will be available in two forms: (1) as part of the UNCITRAL Arbitration Rules, for use in arbitrations conducted under those rules, and (2) as a free-standing set of rules, available for use in arbitrations conducted under other arbitral rules, such as the Rules of the International Centre for Settlement of Investment Disputes (ICSID), or in ad hoc proceedings. The Transparency Rules, as well as the new version of the UNCITRAL Arbitration Rules that incorporates the Transparency Rules, will come into effect on April 1, 2014. The Transparency Rules are for use only in treaty-based investor-State arbitration – not in traditional commercial arbitration.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1300 - 1308
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the United Nations Commission on International Trade Law Web site (visited November 16, 2013), http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/pre-release-UNCITRAL-Rules-on-Transparency.pdf.

1 UNCITRAL, established in 1966, promotes the modernization and harmonization of commercial law. It is composed of 60 Member States elected by the General Assembly. UN Comm’n on Int’l Trade Law [UNCITRAL], A Guide to UNCITRAL: Basic facts about the United Nations Commission on International Trade Law, 1-3 (2013), http://www.uncitral.org/pdf/english/texts/general/12-57491-Guide-to-UNCITRAL-e.pdf; see generally UNCITRAL,www.uncitral. org (last visited Nov. 19, 2013).

2 Rep. of the United Nations Commission on International Trade Law, 46th Sess., July 8-26, 2013, 81-86, UN Doc A/68/17; GAOR, 68th Sess., Supp. No. 17 (2013), available at http://www.un.org/ga/search/view_doc.asp?symbol=A%2F68%2F17&Submit=Search&Lang=E.

3 Press Release, UNCITRAL, UNCITRAL Adopts Transparency Rules for Treaty-Based Investor-State Arbitration and Amends the UNCITRAL Arbitration Rules, U.N. Press Release UNIS/L/186 (July 12, 2013), available at http://www.unis.unvienna.org/unis/pressrels/2013/unisl186.html.

4 UNCITRAL, UNCITRAL Arbitration Rules (1976), http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf.

5 According to the United Nations Commission on Trade and Development (UNCTAD), as of the end of 2012 there were 2857 bilateral investment treaties worldwide and 339 other types of international investment agreements. United Nations Conference on Trade & Dev., Global Value Chains: Investment and Trade for Development, World Investment Report 2013, xix (2013), available at www.unctad.org/en/PublicationsLibrary/wir2013_en.pdf [hereinafter Global Value Chains].

6 Investment treaties typically offer an investor several arbitration options when a claim is submitted. Use of the UNCITRAL Arbitration Rules is commonly among those options.

7 UNCITRAL, UNCITRAL Arbitration Rules (as revised in 2010), http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf.

8 Rep. of the United Nations Commission on International Trade Law, 41st Sess., June 16-July 3, 2008, UN Doc A/63/17; GAOR, 63rd Sess., Supp. No. 17 (2008), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V08/555/08/PDF/V0855508.pdf?OpenElement; Rep. of the United Nations Commission on International Trade Law, 43rd Sess., June 21-July 9, 2010, UN Doc A/65/17; GAOR, 65th Sess., Supp. No. 17 (2010), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V10/556/48/PDF/V1055648.pdf?OpenElement.

9 See, e.g., Center for International Environmental Law & International Institute for Sustainable Development, “Ensuring Transparency” in Investor- State Dispute Resolution Under the UNCITRAL Arbitration Rules (October 8, 2010), available at http://www.iisd.org/pdf/2010/unicitral_ensuring_transparency.pdf.

10 North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993). Transparency provisions are found in (1) Free Trade Comm’n, Interpretation of the Free Trade Commission of Certain Chapter 11 Provisions (July 31, 2001), www.state.gov/documents/organization/38790.pdf, and (2) Free Trade Comm’n, Statement of the Free Trade Commission on Non-Disputing Party Participation (October 7, 2003), www.state.gov/documents/organization/38791.pdf.

11 U.S. Dep’t of State, 2012 U.S. Model Bilateral Investment Treaty, art. 29, http://www.state.gov/documents/organization/188371.pdf.

12 UNCITRAL, UNCITRAL Rules on Transparency in Treatybased Investor-State Arbitration, art. 8, adopted July 9, 2013, http://www.uncitral.org/pdf/english/texts/arbitration/rules-ontransparency/pre-release-UNCITRAL-Rules-on-Transparency.pdf (effective on Apr. 1, 2014) [hereinafter Transparency Rules].

13 Id. art. 2.

14 Id. art. 3.

15 Id. art. 4.

16 Id. art. 5.

17 Id. art. 6.

18 Id. art. 7.

19 Id. art. 1(1).

20 Id. art. 1(2)(b). The Transparency Rules may also apply where the disputing parties agree to their use. Id. art. 1(2)(a).

21 See Global Value Chains, supra note 5. 22 Rep. of the United Nations Commission on International Trade Law, supra note 2, at 20-22. Note that some existing investment treaties, including the more recent ones of the United States, already contain transparency provisions.

23 United Nations Commission on International Trade Law, Rep. of Working Group II (Arbitration and Conciliation) on its 59th Sess., U.N. Doc. A/CN.9/794 (Sept. 26, 2013), http://www.un.org/ga/search/view_doc.asp?symbol=A%2FCN.9%2F794&Submit=Search&Lang=E.

24 Rep. of the United Nations Commission on International Trade Law, supra note 2, at 87.

25 Transparency Rules, supra note 12, art. 1(9).