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

2. Brief overview of UNCITRAL
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. and the Economic Cooperation Organization
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 4

5. UNCITRAL Dispute Settlement Texts
1958
Convention on the Recognition and Enforcement of Foreign Arbitral Awards  the "New York" Convention
1976
UNCITRAL Arbitration Rules
1980
UNCITRAL Conciliation Rules
1985
UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)
2002
UNCITRAL Model Law on International Commercial Conciliation
2010
Revised UNCITRAL Arbitration Rules
2013
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration 5

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
Afghanistan
Azerbaijan
Iran (Islamic Republic of) ;
Kazakhstan
Kyrgyzstan
Pakistan
Republic of Tajikistan
Turkey ;
Turkmenistan
Uzbekistan 6

7. New York Convention 153 State parties (2014)
* Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
153 State parties (2014)
Q. Is “s” capitalized in “State parties”?

8. UNCITRAL and the Economic Cooperation Organization
New York Convention (1958)
* Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
Afghanistan
28/02/2005
Azerbaijan
29/05/2000
Iran (Islamic Republic of)
13/01/2002
Kazakhstan
18/02/1996
Kyrgyzstan
18/03/1997
Pakistan
12/10/2005
Republic of Tajikistan
12/11/2012
Turkey
30/09/1992
Turkmenistan
Uzbekistan
07/05/1996
* entry into force 8

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 9

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
Afghanistan
Azerbaijan
1999
Iran (Islamic Republic of)
1997
Kazakhstan
Kyrgyzstan
Pakistan
Republic of Tajikistan
Turkey
2001
Turkmenistan
2016
Uzbekistan 10

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)
Afghanistan
Azerbaijan
Iran (Islamic Republic of)
Kazakhstan
Kyrgyzstan
01/06/2000
Pakistan
Republic of Tajikistan
Turkey
01/08/2011
Turkmenistan
Uzbekistan
01/12/1997
* entry into force 12

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)
Afghanistan
Azerbaijan
Iran (Islamic Republic of)
26/09/2007
Kazakhstan
Kyrgyzstan
Pakistan
Republic of Tajikistan
Turkey
Turkmenistan
Uzbekistan
* signature 13

14. Origins of the work on transparency
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. Content of the Rules on Transparency
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. Publication (cont’d)
Expert statements and witness statements, upon request (exclusive of exhibits)
Requests / sua sponte -- other documents

23. Art.4: Submissions by a third person
Tribunal’s discretion: after consultation with the disputing parties, the tribunal may allow 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 Scope of application NOT INVOLVED IN 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. Art.1: Scope of application
Opt-out for future treaties
The Rules shall apply to investor-State arbitration initiated under the UNCITRAL Arbitration Rules pursuant a treaty concluded after 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 these Rules shall apply only when:

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 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
Arbitrations published on the Transparency Registry
As examples of treaties concluded after 1 April 2014 under which the UNCITRAL Rules on Transparency would apply, there are:
Australia-Republic of Korea FTA ; 08/04/2014
Article 11:16 (3) refers to the "UNCITRAL Arbitration Rules", importing application of the Rules on Transparency;
Canada - Republic of Korea FTA; 13/06/2014
Article 8:23 (1) refers to the "UNCITRAL Arbitration Rules", importing application of the Rules on Transparency; 33

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"
Arbitrations published on the Transparency Registry
As examples of treaties concluded after 1 April 2014 under which the UNCITRAL Rules on Transparency would apply, there are:
Australia-Republic of Korea FTA ; 08/04/2014
Article 11:16 (3) refers to the "UNCITRAL Arbitration Rules", importing application of the Rules on Transparency;
Canada - Republic of Korea FTA; 13/06/2014
Article 8:23 (1) refers to the "UNCITRAL Arbitration Rules", importing application of the Rules on Transparency; 34

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. Convention on Transparency
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 36

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
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 UNCITRAL Resources www.uncitral.org 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 42

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

44. The Digest on the Model Law
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

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