UNCITRAL Rules on Transparency in Treaty-based Investor ...

1 UNCITRAL Rules on Transparency in Treaty-based Investor -State ArbitrationUNITED NATIONSUNCITRALUNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAWF urther information may be obtained from: UNCITRAL secretariat, Vienna International Box 500, 1400 Vienna, AustriaTelephone: (+43-1) 26060-4060 Telefax: (+43-1) 26060-5813 Internet: E-mail: NATIONS New York, 2014 UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAWUNCITRAL Rules on Transparency in Treaty-based Investor -State Arbitration United Nations: United Nations Commission on International Trade Law.

2 January 2014. All rights reserved. This publication has not been formally edited. Publishing production: English, Publishing and Library Section. United Nations Office at Assembly resolution 68/109 .. 1 UNCITRAL Rules on Transparency in Treaty-based Investor -State Arbitration .. 5 Article 1 . Scope of application .. 5 Applicability of the Rules .. 5 Application of the Rules .. 5 Discretion and authority of the arbitral tribunal .. 6 Applicable instrument in case of conflict.

3 6 Application in non- UNCITRAL arbitrations .. 7 Article 2 . Publication of information at the commencement of arbitral proceedings .. 7 Article 3 . Publication of documents .. 7 Article 4 . Submission by a third person .. 8 Article 5 . Submission by a non-disputing Party to the treaty .. 9 Article 6 . Hearings .. 10 Article 7 . Exceptions to Transparency .. 10 Confidential or protected information .. 10 Integrity of the arbitral process.

4 12 Article 8 . Repository of published information .. 121 Resolution adopted by the General Assembly on 16 December 2013[on the report of the Sixth Committee (A/68/462)]68/109. United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor -State Arbitration and Arbitration Rules (as revised in 2010, with new article 1, paragraph 4, as adopted in 2013) The General Assembly, Recalling its resolution 2205 (XXI) of 17 December 1966, by which it established the United Nations Commission on International Trade Law with a mandate to further the progres-sive harmonization and unification of the law of international trade and in that respect to bear in mind the interests of all peoples, in particular those of developing countries, in the extensive development of international trade.

5 Recognizing the value of arbitration as a method of settling disputes that may arise in the context of international relations and the wide use of arbitration for the settlement of Treaty-based Investor -State disputes, Recalling its resolutions 31/98 of 15 December 1976 and 65/22 of 6 December 2010, in which it recommended the use of the Arbitration Rules of the United Nations Commission on International Trade Law,1 Bearing in mind that the Arbitration Rules are widely used for the settlement of Treaty-based Investor -State disputes, Recognizing the need for provisions on Transparency in the settlement of such Treaty-based Investor -State disputes to take account of the public interest involved in such arbitrations.

6 Believing that Rules on Transparency in Treaty-based Investor -State arbitration would contribute significantly to the establish-ment of a harmonized legal framework for a fair and efficient 1 Official Records of the General Assembly, Thirty-first Session, Supplement No. 17 (A/31/17), chap. V, sect. C; and ibid., Sixty-fifth Session, Supplement No. 17 (A/65/17), chap. III and annex of international investment disputes, increase trans-parency and accountability and promote good governance, Noting that the Commission, at its forty-sixth session, adopted the Rules on Transparency in Treaty-based Investor -State Arbitration2 and amended the Arbitration Rules as revised in 2010 to include, in a new article 1, paragraph 4, a reference to the Rules on Transparency .

7 3 Noting also that the Rules on Transparency are available for use in Investor -State arbitrations initiated under Rules other than the Arbitration Rules or in ad hoc proceedings, Noting further that the preparation of the Rules on Transparency was the subject of due deliberation in the Commission and that they benefited from consultations with Governments and interested intergovernmental and international non-governmental organizations, 1. Expresses its appreciation to the United Nations Commission on International Trade Law for having prepared and adopted the Rules on Transparency in Treaty-based Investor -State Arbitration2 and the Arbitration Rules (as revised in 2010, with new article 1, paragraph 4, as adopted in 2013),3 as annexed to the report of the Commission on the work of its forty-sixth session;4 2.

8 Requests the Secretary-General to publish, including electronically, and disseminate broadly the text of the Rules on Transparency , both together with the Arbitration Rules (as revised in 2010, with new article 1, paragraph 4, as adopted in 2013) and as a stand-alone text, and to transmit them to Governments and organizations interested in the field of dispute settlement; 3. Recommends the use of the Rules on Transparency in relation to the settlement of investment disputes within the scope of their application as defined in article 1 of the Rules , and invites Member States that have chosen to include the Rules in their treaties to inform the Commission accordingly; 4.

9 Also recommends that, subject to any provision in rele-vant treaties that may require a higher degree of Transparency 2 Ibid., Sixty-eighth Session, Supplement No. 17 (A/68/17), chap. III and annex I. 3 Ibid., chap. III and annex II. 4 Official Records of the General Assembly, Sixty-eighth Ses-sion, Supplement No. 17 (A/68/17).3than that provided in the Rules on Transparency , the Rules be applied through appropriate mechanisms to Investor -State arbi-tration initiated pursuant to treaties providing for the protection of investors or investments concluded before the date of coming into effect of the Rules , to the extent that such application is consistent with those plenary meeting 16 December 20135 UNCITRAL Rules on Transparency in Treaty-based Investor -State ArbitrationArticle 1.

10 Scope of applicationApplicability of the Rules1. The UNCITRAL Rules on Transparency in Treaty-based Investor -State Arbitration ( Rules on Transparency ) shall apply to Investor -State arbitration initiated under the UNCITRAL Arbitration Rules pursuant to a treaty providing for the pro-tection of investments or investors ( treaty )* concluded on or after 1 April 2014 unless the Parties to the treaty** have agreed In Investor -State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a treaty concluded before 1 April 2014, these Rules shall apply only when: (a) The parties to an arbitration (the disputing parties ) agree to their application in respect of that arbitration.