Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
The UNCITRAL Arbitration Rules leave the matter of
disclosure or confidentiality to the discretion of the disputing
parties. That is why the very existence of a dispute can be kept
secret if both parties so wish. In 2010, the United Nation
Commission on International Trade Law (UNCITRAL) started the
preparation of a legal standard on transparency in treaty-based
investor-State arbitrations and adopted in July 2013 a set of
Transparency Rules that provide for open oral hearings in IIA-based
cases as well as the publication of key documents, including notices
of arbitration, pleadings, transcripts, and all decisions and awards
issued by the tribunal. However, these rules will apply only to
arbitrations under future IIAS (if they are referred to in such IIAs),
and thus exclude the multitude of pre-existing IIAs (those concluded
before 1 April 2014) from their coverage. State parties to pre-2014
treaties may change this default position by separately agreeing to
apply the new transparency rules to these non-covered treaties, if
they so wish.
135
134
The word "transparency" is used to mean different things. The
three most frequently discussed issues falling under the notion of
"transparency" have been: (1) the access to information about
disputes, including awards and sometimes the submissions of the
disputing parties; (2) the opening of arbitral hearings to the public;
and (3) the ability of third parties to participate as amici curiae in
the disputes.
134 See
http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-
transparency/Rules-on-Transparency-E.pdf.
135 In order to address this last possibility in the most efficient way,
UNCITRAL is currently working on the preparation of a convention on
transparency in treaty-based investor-State arbitration. Note also that
disputing parties themselves may agree to apply the Transparency Rules in
their specific arbitration proceeding, regardless of the base treaty's date of
conclusion and of whether such proceeding is governed by UNCITRAL
Arbitration rules or some other arbitration rules.
UNCTAD Series on International Investment Agreements IIView entire presentation