Corinne MONTINERI Legal Officer UNCITRAL Secretariat

1. UNCITRALRules on Transparency in Treaty-based Investor-State Arbitration – Convention on Transparency Corinne MONTINERI Legal Officer UNCITRAL Secretariat

2. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) Brief overview of UNCITRAL

3. When and why was UNCITRAL established?

4. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) UNCITRAL and the Economic Cooperation Organization

5. UNCITRAL Dispute Settlement Texts

6. UNCITRAL and the Economic Cooperation Organization UNCITRAL Member States * Members of the Commission elected by the General Assembly for a term of six years

7. New York Convention * Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) 153 State parties (2014)

8. UNCITRAL and the Economic Cooperation Organization New York Convention (1958) * Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) * entry into force

9. Model Law on International Commercial Arbitration (1985) UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 Legislation based on the Model Law adopted in 67 States in a total of 97 jurisdictions

10. UNCITRAL and the Economic Cooperation Organization Model Law on International Commercial Arbitration (1985) UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006

11. Convention on International Sales of Goods (CISG): 83 State parties (2014)

12. UNCITRAL and the Economic Cooperation Organization Convention on International Sales of Goods (CISG) * United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) * entry into force

13. UNCITRAL and the Economic Cooperation Organization Electronic Communications Convention (ECC) * United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005) * signature

14. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) Origins of the work on transparency

15. UNCITRAL: a Legal Standard on Transparency 2008 • Commission identifies transparency work to take place as “matter of priority” after finalisation of the revision of the UNCITRAL Arbitration Rules 2010 • Adoption of UNCITRAL Arbitration Rules and commencement of work on transparency

16. Legal Standard on Transparency: Policy context and trends • FDI as a tool for the long-term sustainable growth of developing countries • Promotion of rule of law, good governance, due process, rights to access information • Promotion of judicial economy – early dismissal of frivolous claims; prevention of same claims in multiple fora • ICSID: Revised Rules 2006

17. Practical considerations Transparency Procedural efficiency (public interest)(parties interest) Core issues: • Public access to procedural documents and arbitral awards • Open hearings • Amicus Curiae

18. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) Content of the Rules on Transparency

19. Content of draft Rules on Transparency Article 1: Scope of Application Article 2: Publication of information at the commencement of arbitral proceedings Article 3: Publication of documents Article 4: Submission by a third person Article 5: Submission by a non-disputing Party to the treaty. Article 6: Hearings Article 7: Exceptions to transparency Article 8: Repository of published information

20. Art.2: Publication at commencement Notice of Arbitration • Obligation on both parties to provide notice to repository • “Promptly make available to the public” • Name of disputing parties • Economic sector involved • Treaty under which claim is made

21. Publication – Article 3 Subject to exceptions in Art. 7 • Documents to be made available to public: • Notice and response • Statement of claim, statement of defence (and any further written subs) • List of exhibits … • Submissions by third parties and non-disputing Party(ies) to treaty • Transcripts of hearings, where available • Orders, decisions and awards

22. Expert statements and witness statements, upon request (exclusive of exhibits) Requests / sua sponte -- other documents Publication (cont’d)

23. Art.4: Submissions by a third person • Tribunal’s discretion: after consultation with the disputing parties, the tribunalmayallow a third person to file written submissions • Application by third person: connection with disputing party; connections with disputing parties; financial / other assistance; issues of law or fact Safeguards • No disruption / undue burden / unfair prejudice • Disputing parties have reasonable opportunity to present observations

24. Art.5: Submissions by non-disputing Party to treaty Issues of treaty interpretation • Shall accept (subject to safeguards) • After consultation, may invite Further matters within the scope of the dispute • After consultation, may accept Safeguards • No disruption / undue burden / unfair prejudice • Disputing parties can respond

25. Art. 6: Hearings • Public, subject to confidentiality and logistics

26. Art. 7: Exceptions Confidential or protected information shall not be made available to the public Information shall not be made available to the public where it would jeopardise the integrity of the arbitral process

27. Art. 7: Exceptions Confidential or protected information (a) Confidential business information; • Information that is protected against being made available to the public under the treaty; • Information that is protected against being made available to the public, in the case of the information of the respondent State, under the law of the respondent State, and in the case of other information, under any law or rules determined by the arbitral tribunal to be applicable to the disclosure of such information; or • Information the disclosure of which would impede law enforcement

28. Art. 7: Exceptions cont’d Arrangements Arbitral tribunals, in consultation with disputing parties, shall make arrangements to prevent publication by putting in place: time limits for seeking protection procedures for prompt designation and redaction of confidential/protected info procedures for holding hearings in private

29. Art.8: Repository of published information • Neutrality in the administration of a legal standard on transparency. The repository of published information under the Rules shall be the Secretariat of UNCITRAL

30. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) Scope of application

31. Opt-out for future treaties The Rules shall apply to investor-State arbitration initiated under the UNCITRAL Arbitration Rules pursuant a treatyconcluded after 01.04.2014 unless the Parties to the treaty have agreed otherwise Opt-in for existing treaties In investor-State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a treaty concluded before 01.04.2014 these Rules shall apply only when: Art.1: Scope of application

32. Scope of application (Existing treaties: opt-in) • The parties to an arbitration (“disputing parties”) agree to their application in respect of that arbitration; or • The Parties to the treaty, or, in the case of a multilateral treaty, the home State of the investor and the respondent State, have agreed after 01.04.2014 to their application.

33. UNCITRAL Transparency Registry Arbitrations published on the Transparency Registry E.g. Treaties concluded after 1 April 2014 under which the UNCITRAL Rules on Transparency would apply • Australia-Republic of Korea FTA (date of signature: 08/04/2014) • Article 11:16 (3) refers to the "UNCITRAL Arbitration Rules", importing application of the Rules on Transparency

34. UNCITRAL Transparency Registry Arbitrations published on the Transparency Registry E.g. Treaties concluded after 1 April 2014 under which the UNCITRAL Rules on Transparency would apply • Canada - Republic of Korea FTA (date of signature: 13/06/2014) • Article 8:23 (1) refers to the "UNCITRAL Arbitration Rules"

35. “Creative solutions” for existing treaties UNCITRAL prepared and finalized: • A convention on transparency Possible actions by Parties to treaties • Unilateral or bilateral declarations

36. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) Convention on Transparency

37. Content of the Convention Article 1: Scope of Application Article 2: Application of the UNCITRAL Rules on Transparency Article 3: Reservations Article 4: Formulation of Reservations Article 5: Application to Investor-State arbitrations Articles 6 to 11: Final clauses

38. Scope of Application • The Convention applies to arbitration between an investor and a State or a regional economic integration organization conducted on the basis of an investment treaty concluded before 1 April 2014 . • The UNCITRAL Rules on Transparency shall apply to any investor-State arbitration, whether or not initiated under the UNCITRAL Arbitration Rules: • if the State of the investor and the respondent States are both party to the Convention on Transparency (bilateral or multilateral application); or • only if the respondent State is party to the Convention (unilateral offer of application).

39. Reservations • Possibility for a State to exclude from the scope of application of the Convention: • a specific investment treaty, • a specific set of arbitration rules or procedures other than the UNCITRAL Arbitration Rules, • the unilateral offer to apply the Rules on Transparency. In the event of a revision of the UNCITRAL Rules on Transparency, possibility for a State to declare, within six months of the adoption of such revision, that it shall not apply that revised version of the Rules.

40. Application to arbitrations The Convention (and any reservation, or withdrawal of a reservation) shall apply only to investor-State arbitrations that are commenced after the date when the Convention (reservation, or withdrawal of a reservation) enters into force or takes effect in respect of each Party concerned.

41. Entry into force of the Convention The Convention is open for signature in Port Louis, Mauritius, on 17 March 2015, and thereafter at the United Nations Headquarters in New York by any • State; or (b) regional economic integration organization that is constituted by States and is a contracting party to an investment treaty. The Convention shall enter into force six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.

42. UNCITRAL: the role NOT INVOLVED IN • Setting trade rules applicable between States • Private disputes between private parties • Providing legal advice to private parties INVOLVED IN • Promoting the unification & harmonization of the law of international trade and assisting in domestic law reform (legislative work) • Strengthening uniform application & interpretation of the instruments adopted (technical assistance) • Coordinating the work of other similar organizations (cooperation with UN and not UN bodies /organisations) UNCITRAL Resources www.uncitral.org

43. Work of WG II on transparency in treaty-based investor-State arbitration

44. Launched on 9 June 2012 Summary of case law for each Article, highlighting common views and reporting divergent approaches Footnotes with live links to cases 725 cases from 37 States The Digest on the Model Law

45. www.newyorkconvention1958.org

46. Thank You! For more information on UNCITRAL’s workin the area of arbitration and transparency in treaty-based investor-State arbitration, please visit our web site: http://www.uncitral.org