Enhancing Transparency in Investor-State Dispute

Enhancing Transparency in Investor-State Dispute Settlement: UNCITRAL’s Work Presentation on the margins of the 47th session of UNCITRAL: UNCITRAL standards for transparency, accountability and good governance July 17, 2014

Transparency and the 1976 UNCITRAL Rules • The UNCITRAL Arbitration Rules were first developed in 1976 • Specifically drafted for use in commercial arbitration (private parties) • The former Arbitration Rules specified: – Presumption in favour of in camera hearings – Disclosure of awards only with consent of both parties

The Need for Transparency • ISDS involves public policy and the public interest • Transparency serves the interests of the citizens of disputing state: • When there are allegations of government misconduct, the public has the right to know whether these allegations can be substantiated • Taxpayers are ultimately responsible for the defence and for any awards issued against States

Perception of ‘Closed Doors’ in ISDS • Media and academic criticism of ISDS and the negative public perception • Common critiques of ISDS: – crucial proceedings held behind “closed doors” – unnecessary confidentiality – shrinking policy space

Global Trend Toward Transparency • Increased public access to information in government hands • Revision of the UNCITRAL Rules was required to keep abreast of other arbitration rules (ICSID) • Advances in State practice in the context of transparency in ISDS in FTAs and bilateral investment treaties

UNCITRAL Adopts Transparency Rules • Negotiations within the UNCITRAL Working Group began in 2010 • On 11 July 2013, UNCITRAL adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the "Transparency Rules") • The Transparency Rules came into effect 1 April 2014

Stakeholder Input • The Working Group was composed of all State members of UNCITRAL • Observers from various States also participated • Sessions were also attended by various intergovernmental organisations • International NGOs also in attendance

Balance Attained • The 2013 UNCITRAL Rules address the transparency gaps in the previous Rules and criticism of the ISDS regime • Balance is maintained between increased transparency, efficiency, and the protection of confidential information

Influence • The 2013 UNCITRAL Rules may influence other bodies and States to re-commit or commit further to increased transparency • UNCITRAL has assumed a leadership role in this important area of international dispute settlement going forward

Enhancing Transparency in Investor-State Dispute Settlement: UNCITRAL’s Work Presentation on the margins of the 47th session of UNCITRAL: UNCITRAL standards for transparency, accountability and good governance July 17, 2014