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