UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 1st April 2014, OXIO 117
United Nations Commission on International Trade Law [UNCITRAL]
- Document collection from third parties — Production of documents — International courts and tribunals, procedure — Privilege — Transparency — UNCITRAL Arbitration Rules — Confidentiality
1. Whether the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration should provide for a centralized transparency repository.
2. What role should be performed by the centralized repository.
3. Which international organization should fulfil the role of repository.
The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (‘Rules’) form part of the UNCITRAL Arbitration Rules as revised in 2010. The Rules apply to investor-state arbitrations conducted under treaties post-dating the entry into force of the Rules on 1 April 2014. The use of the Rules was recommended by the United Nations General Assembly (UNGA) in UNGA Resolution 68/109 on 16 December 2013, and they were therefore not binding upon United Nations (UN) Member States.
The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration provides a mechanism for the application of the Rules to arbitral proceedings conducted under treaties that were already in force when the Rules came into effect. In addition, disputing parties may consent to the application of the Rules to proceedings in which they would otherwise not apply—for example, in proceedings conducted under instruments other than treaties. While the Rules are specific to the regime of investor-state arbitration, they are reflective of a wider trend in international institutions towards greater transparency.
The Rules were drafted by Working Group II on Arbitration and Conciliation (‘WG’) of the United Nations Commission on International Trade Law (UNCITRAL). During the drafting of the Rules, the WG expressly considered whether an institutionalized approach to the collection and publication of documents was preferable, or whether publication of documents should instead be left to individual states to regulate on an ad hoc basis. The WG opted for an institutionalized approach on the basis that a registry could serve as ‘a hub of information’. This linked to the motivation underlying the development of transparency rules: a desire to use transparency to bolster public ‘confidence’ in investment treaty arbitration and to assuage public ‘suspicion’ of the regime (Report of Working Group II (Arbitration and Conciliation) on the work of its fifty-third session). The WG also favoured the creation of a centralized repository, due to the costs associated with ad hoc as opposed to institutionalized approaches to transparency. In particular, the WG noted the divergent resources and experience of states in maintaining online repositories themselves.
The Rules provide for a level of transparency that goes significantly beyond existing transparency frameworks.
The Rules require the publication of specific information at the commencement of arbitral proceedings, and of documents generated throughout proceedings. [Arts 2–3]. Furthermore, they provide for the filing of submissions by third and non-disputing treaty parties, and open hearings. [Arts 4–6]
The Rules establish a centralized repository to collect and publish documents produced pursuant to them (Article 8 of the Rules). Under the Rules, disputing parties and arbitral tribunals are required to submit specific documents to the repository. This includes a requirement for disputing parties to ‘promptly’ submit a copy of the notice of arbitration to the repository. [Art 2] It also includes a requirement for arbitral tribunals to communicate to the repository documents made available to the public pursuant to Article 3 of the Rules. [Art 3] These documents include the response to the notice of arbitration, the statements of claim and defence, any other written submissions filed by the parties, a table of exhibits if one is prepared, any written submissions filed by third parties, transcripts of hearings if prepared, and the decisions and awards of the tribunal. The repository is responsible for making such documents available to the public ‘in a timely manner’. [Art 3(4)] Arbitral tribunals may also grant access to other documents including, for example, exhibits. [Art 3(3)] These documents are to be communicated by the tribunal to the repository as they become available, and thereafter made available in a timely manner to the persons who requested access to them. [Art 3(4)]
A core concern of the WG in drafting the Rules was the extent to which the repository should be vested with discretionary powers. This included, for example, the extent to which the repository could be called upon to determine the applicability of the Rules prior to the constitution of the arbitral tribunal, or to make decisions about whether redactions purportedly made in accordance with the exceptions to transparency stipulated in the Rules are consistent with the Rules. Ultimately, the WG decided to limit the powers of the repository, providing for the automatic disclosure by the repository of documents received by it. The repository thus has no power to screen documents or decide disputes between the parties about the publication of documents or the applicability of the Rules.
Article 8 of the Rules provides that the repository function is to be performed by ‘the Secretary-General of the United Nations or an institution named by UNCITRAL’. [Art 8] During the drafting of the Rules, the WG reached an agreement that the role of repository would ideally be performed by UNCITRAL itself. However, at the time of adopting the Rules it was unclear whether UNCITRAL had the necessary resources to be able to serve in the role of repository. As such, the WG drafted the Rules in such a way that left open the question of which institution would ultimately perform the role of repository. The WG specifically considered the possibility of the Permanent Court of Arbitration (PCA) or another arbitral institution performing the role of repository on an interim basis pending UNCITRAL’s ability to take over that role itself. The repository is funded through voluntary contributions.
Prior to the Rules, procedural transparency in investment arbitration had been regulated through a variety of sources, including treaties, domestic law, ad hoc disputing party agreements, procedural orders, and procedural rules. These sources largely left the matter of transparency to arbitral or party discretion. Transparency was thus addressed on a case-by-case basis by reference to general considerations, such as fairness, efficiency, and equality. This led to the adoption of unpredictable and at times inconsistent approaches.
The Rules establish an extremely permissive transparency framework for treaty-based investor-state disputes. They cover a range of matters left unaddressed in other procedural rules or treaties, in many instances providing a ‘duty of transparency’ as opposed to a ‘right of transparency’ or even ‘duty of confidentiality’.
The establishment of a repository by the Rules ensures not only the publication of documents, but also institutionalizes their collection. In so doing, it moves aspects of UNCITRAL arbitral procedures away from their traditionally ad hoc design and may operate to create a new more interconnected and institutionalized regime of investment treaty arbitration. The creation of a transparency repository by the Rules thus signifies a further institutionalization of investment treaty arbitration. In vesting the UNCITRAL Secretariat with the functions of repository, the UNGA specifically noted the capacity for the repository to act as a ‘consolidated, transparent[,] and easily accessible global case record database’ (Report of the United Nations Commission on International Trade Law on the work of its forty-eighth session).
The repository was launched in 2014 and has since been operating as a ‘pilot project’. However, it has thus far gone unused. The only documents it holds at present are a number of documents filed by Canada relating to historic proceedings.
Two proceedings have, by disputing party consent, been conducted under the Rules. However, neither case has used the UNCITRAL Secretariat as repository under Article 8 of the Rules. Instead, in one case (Iberdrola, SA (España) and Iberdrola Energía, SAU (España) v The Plurinational State of Bolivia) the PCA has been designated as repository, and in another (BSG Resources Limited v Guinea) the Secretariat of the International Centre for Settlement of Investment Disputes is acting as repository.
The repository has published guidance on the submission of documents under the Rules. In doing so, it has clarified aspects of the Rules. The guidelines provide, for example, that disputes as to the applicability of the Rules shall be ‘promptly decide[d]’ by the arbitral tribunal. The guidelines further specify that, following termination of the proceeding, ‘the repository will not publish any additional document on that case’. The WG specifically left open the question of how the repository would deal with requests for documents received following termination of the arbitral proceedings, suggesting that the tribunal should encourage the disputing parties to work out appropriate arrangements following the discharge of the tribunal’s functions. The guidelines indicate that there may be some scope for the repository to play an important role in the interpretation and application of the Rules in the future.
Further analysis of Relevant Materials
- Kathleen Claussen ‘Article 8 – Repository of Published Information’ in Dimitrij Euler and others (eds), Transparency in International Investment Arbitration: A Guide to the UNICTRAL Rules on Transparency in Treaty-Based Investor-State Arbitration (Cambridge University Press 2015)
- Esmé Shirlow ‘Dawn of a New Era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration’ (2016) 31(3) ICSID Review – Foreign Investment Law Journal 622–654
- Lise Johnson and Nathalie Bernasconi-Osterwalder ‘New UNCITRAL Arbitration Rules on Transparency: Application, Content and Next Steps’ (2013) 4 International Institute for Sustainable Development 3
International Centre for the Settlement of Investment Disputes (ICSID)
- BSG Resources Limited v Guinea, Procedural order No 2 on transparency, 17 September 2015, ICSID Case No ARB/14/22
Permanent Court of Arbitration
- Iberdrola, SA (España) and Iberdrola Energía, SAU (España) v The Plurinational State of Bolivia, PCA Case No 2015-05
United Nations Commission on International Trade Law (UNCITRAL)
- UNCITRAL Arbitration Rules as revised in 2010 (15 August 2010) UN Doc A/RES/65/22
United Nations General Assembly
- Report of the United Nations Commission on International Trade Law on the work of its forty-eighth session (29 June–16 July 2015) UN Doc A/C.6/70/L.9
- United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (adopted 10 December 2014, entered into force 18 October 2017) [http://www.uncitral.org/pdf/english/texts/arbitration/transparency-convention/Transparency-Convention-e.pdf]
- United Nations General Assembly Resolution 68/109 (16 December 2013) UN Doc A/RES/68/109
- Report of Working Group II (Arbitration and Conciliation) on the work of its fifty-third session (4–8 October 2010) UN Doc A/CN.9/712
Article 1. Scope of application
Article 3. Publication of documents
Article 4. Submission by a third person
Article 6. Hearings
Article 7. Exceptions to transparency
Article 8. Repository of published information
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 progressive 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,
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,
Believing that rules on transparency in treaty-based investor-State arbitration would contribute significantly to the establishment of a harmonized legal framework for a fair and efficient settlement of international investment disputes, increase transparency 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,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. 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. Also recommends that, subject to any provision in relevant treaties that may require a higher degree of transparency than that provided in the Rules on Transparency, the Rules be applied through appropriate mechanisms to investor-State arbitration 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 treaties.
68th plenary meeting
16 December 2013
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration
Article 1. Scope of application
Applicability of the Rules
1. 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 protection of investments or investors (“treaty”)* concluded on or after 1 April 2014 unless the Parties to the treaty** have agreed otherwise.
2. 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; or
(b) The Parties to the treaty or, in the case of a multilateral treaty, the State of the claimant and the respondent State, have agreed after 1 April 2014 to their application.
Application of the Rules
3. In any arbitration in which the Rules on Transparency apply pursuant to a treaty or to an agreement by the Parties to that treaty:
(a) The disputing parties may not derogate from these Rules, by agreement or otherwise, unless permitted to do so by the treaty;
(b) The arbitral tribunal shall have the power, besides its discretionary authority under certain provisions of these Rules, to adapt the requirements of any specific provision of these Rules to the particular circumstances of the case, after consultation with the disputing parties, if such adaptation is necessary to conduct the arbitration in a practical manner and is consistent with the transparency objective of these Rules.
Discretion and authority of the arbitral tribunal
4. Where the Rules on Transparency provide for the arbitral tribunal to exercise discretion, the arbitral tribunal in exercising such discretion shall take into account:
(a) The public interest in transparency in treaty-based investor-State arbitration and in the particular arbitral proceedings; and
(b) The disputing parties’ interest in a fair and efficient resolution of their dispute.
5. These Rules shall not affect any authority that the arbitral tribunal may otherwise have under the UNCITRAL Arbitration Rules to conduct the arbitration in such a manner as to promote transparency, for example by accepting submissions from third persons.
Applicable instrument in case of conflict
7. Where the Rules on Transparency apply, they shall supplement any applicable arbitration rules. Where there is a conflict between the Rules on Transparency and the applicable arbitration rules, the Rules on Transparency shall prevail. Notwithstanding any provision in these Rules, where there is a conflict between the Rules on Transparency and the treaty, the provisions of the treaty shall prevail.
Article 2. Publication of information at the commencement of arbitral proceedings
Once the notice of arbitration has been received by the respondent, each of the disputing parties shall promptly communicate a copy of the notice of arbitration to the repository referred to under article 8. Upon receipt of the notice of arbitration from the respondent, or upon receipt of the notice of arbitration and a record of its transmission to the respondent, the repository shall promptly make available to the public information regarding the name of the disputing parties, the economic sector involved and the treaty under which the claim is being made.
Article 3. Publication of documents
1. Subject to article 7, the following documents shall be made available to the public: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defence and any further written statements or written submissions by any disputing party; a table listing all exhibits to the aforesaid documents and to expert reports and witness statements, if such table has been prepared for the proceedings, but not the exhibits themselves; any written submissions by the non-disputing Party (or Parties) to the treaty and by third persons, transcripts of hearings, where available; and orders, decisions and awards of the arbitral tribunal.
2. Subject to article 7, expert reports and witness statements, exclusive of the exhibits thereto, shall be made available to the public, upon request by any person to the arbitral tribunal.
3. Subject to article 7, the arbitral tribunal may decide, on its own initiative or upon request from any person, and after consultation with the disputing parties, whether and how to make available exhibits and any other documents provided to, or issued by, the arbitral tribunal not falling within paragraphs 1 or 2 above. This may include, for example, making such documents available at a specified site.
4. The documents to be made available to the public pursuant to paragraphs 1 and 2 shall be communicated by the arbitral tribunal to the repository referred to under article 8 as soon as possible, subject to any relevant arrangements or time limits for the protection of confidential or protected information prescribed under article 7. The documents to be made available pursuant to paragraph 3 may be communicated by the arbitral tribunal to the repository referred to under article 8 as they become available and, if applicable, in a redacted form in accordance with article 7. The repository shall make all documents available in a timely manner, in the form and in the language in which it receives them.
5. A person granted access to documents under paragraph 3 shall bear any administrative costs of making those documents available to that person, such as the costs of photocopying or shipping documents to that person, but not the costs of making those documents available to the public through the repository.
Article 4. Submission by a third person
1. After consultation with the disputing parties, the arbitral tribunal may allow a person that is not a disputing party, and not a non-disputing Party to the treaty (“third person(s)”), to file a written submission with the arbitral tribunal regarding a matter within the scope of the dispute.
2. A third person wishing to make a submission shall apply to the arbitral tribunal, and shall, in a concise written statement, which is in a language of the arbitration and complies with any page limits set by the arbitral tribunal:
(a) Describe the third person, including, where relevant, its membership and legal status (e.g., trade association or other non-governmental organization), its general objectives, the nature of its activities and any parent organization (including any organization that directly or indirectly controls the third person);
(b) Disclose any connection, direct or indirect, which the third person has with any disputing party;
(c) Provide information on any government, person or organization that has provided to the third person (i) any financial or other assistance in preparing the submission; or (ii) substantial assistance in either of the two years preceding the application by the third person under this article (e.g. funding around 20 per cent of its overall operations annually);
(d) Describe the nature of the interest that the third person has in the arbitration; and
(e) Identify the specific issues of fact or law in the arbitration that the third person wishes to address in its written submission.
3. In determining whether to allow such a submission, the arbitral tribunal shall take into consideration, among other factors it determines to be relevant:
(a) Whether the third person has a significant interest in the arbitral proceedings; and
(b) The extent to which the submission would assist the arbitral tribunal in the determination of a factual or legal issue related to the arbitral proceedings by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.
4. The submission filed by the third person shall:
(a) Be dated and signed by the person filing the submission on behalf of the third person;
(b) Be concise, and in no case longer than as authorized by the arbitral tribunal;
(c) Set out a precise statement of the third person’s position on issues; and
(d) Address only matters within the scope of the dispute.
5. The arbitral tribunal shall ensure that any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
Article 5. Submission by a non-disputing Party to the treaty
1. The arbitral tribunal shall, subject to paragraph 4, allow, or, after consultation with the disputing parties, may invite, submissions on issues of treaty interpretation from a non-disputing Party to the treaty.
2. The arbitral tribunal, after consultation with the disputing parties, may allow submissions on further matters within the scope of the dispute from a non-disputing Party to the treaty. In determining whether to allow such submissions, the arbitral tribunal shall take into consideration, among other factors it determines to be relevant, the factors referred to in article 4, paragraph 3, and, for greater certainty, the need to avoid submissions which would support the claim of the investor in a manner tantamount to diplomatic protection.
4. The arbitral tribunal shall ensure that any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
Article 6. Hearings
2. Where there is a need to protect confidential information or the integrity of the arbitral process pursuant to article 7, the arbitral tribunal shall make arrangements to hold in private that part of the hearing requiring such protection.
3. The arbitral tribunal shall make logistical arrangements to facilitate the public access to hearings (including where appropriate by organizing attendance through video links or such other means as it deems appropriate). However, the arbitral tribunal may, after consultation with the disputing parties, decide to hold all or part of the hearings in private where this becomes necessary for logistical reasons, such as when the circumstances render any original arrangement for public access to a hearing infeasible.
Article 7. Exceptions to transparency
Confidential or protected information
1. Confidential or protected information, as defined in paragraph 2 and as identified pursuant to the arrangements referred to in paragraphs 3 and 4, shall not be made available to the public pursuant to articles 2 to 6.
2. Confidential or protected information consists of:
(a) Confidential business information;
(b) Information that is protected against being made available to the public under the treaty;
(c) 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
(d) Information the disclosure of which would impede law enforcement.
3. The arbitral tribunal, after consultation with the disputing parties, shall make arrangements to prevent any confidential or protected information from being made available to the public, including by putting in place, as appropriate:
(a) Time limits in which a disputing party, non-disputing Party to the treaty or third person shall give notice that it seeks protection for such information in documents;
(b) Procedures for the prompt designation and redaction of the particular confidential or protected information in such documents; and
(c) Procedures for holding hearings in private to the extent required by article 6, paragraph 2.
Any determination as to whether information is confidential or protected shall be made by the arbitral tribunal after consultation with the disputing parties.
4. Where the arbitral tribunal determines that information should not be redacted from a document, or that a document should not be prevented from being made available to the public, any disputing party, non-disputing Party to the treaty or third person that voluntarily introduced the document into the record shall be permitted to withdraw all or part of the document from the record of the arbitral proceedings.
Integrity of the arbitral process
6. Information shall not be made available to the public pursuant to articles 2 to 6 where the information, if made available to the public, would jeopardize the integrity of the arbitral process as determined pursuant to paragraph 7.
7. The arbitral tribunal may, on its own initiative or upon the application of a disputing party, after consultation with the disputing parties where practicable, take appropriate measures to restrain or delay the publication of information where such publication would jeopardize the integrity of the arbitral process because it could hamper the collection or production of evidence, lead to the intimidation of witnesses, lawyers acting for disputing parties or members of the arbitral tribunal, or in comparably exceptional circumstances.
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 I.
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 Session, Supplement No. 17 (A/68/17).
* For the purposes of the Rules on Transparency, a “treaty” shall be understood broadly as encompassing any bilateral or multilateral treaty that contains provisions on the protection of investments or investors and a right for investors to resort to arbitration against Parties to the treaty, including any treaty commonly referred to as a free trade agreement, economic integration agreement, trade and investment framework or cooperation agreement, or bilateral investment treaty.
** For the purposes of the Rules on Transparency, any reference to a “Party to the treaty” or a “State” includes, for example, a regional economic integration organization where it is a Party to the treaty.