UNCITRAL Transparency Rules and the Mauritius Convention Dr

UNCITRAL Transparency Rules and the Mauritius Convention Dr. Elizabeth Whitsitt YCAP 2018 FALL SYMPOSIUM in conjunction with ICC YAF Ottawa, Ontario November 8, 2018

UNCITRAL Transparency Rules • Publication of documents (Article 3) – – – Notice of arbitration & Response Statement of Claim Statement of Defence Other written statements by disputing party Table listing exhibits and experts (not exhibits themselves) – Written submission of non-disputing parties and third parties

UNCITRAL Transparency Rules __________________ _ • Third Person Submissions (Article 4) – Disclosure of its legal status, aims of the organization, nature of activities & any parent organization – Disclosure of connection w/ disputing party – Disclosure of financial assistance w/ submission or assistance in either of two years preceding application

UNCITRAL Transparency Rules _________________ • Non-Disputing Party Submissions (Article 5) – Treaty interpretation – Further matters within scope of the dispute – No inferences to be drawn if non-disputing party does not make a submission

UNCITRAL Transparency Rules _________________ • Public Hearings (Article 6) – Presentation of evidence – Oral argument – Arbitral tribunal required to facilitate public access to hearings

UNCITRAL Transparency Rules _________________ • Confidential or Protected information (Article 7) – – Confidential business information Information protected from disclosure via treaty Information protected via laws of state Information protected b/c disclosure could impede law enforcement – information essential to its security interests

UNCITRAL Transparency Rules • Applies to investment treaties concluded after April 1, 2014 (Article 1(1)) • States and/or investors required to expressly “opt in” to the Rules for disputes arising under pre-April 1, 2014 investment treaties (Article 1(2)) • Limited impact given number of pre-April 1, 2014 investment treaties

Mauritius Convention • Application of UNCITRAL Transparency Rules (Article 2) – Where respondent state and investor’s home state are party to Mauritius Convention – Where respondent state is a party and investor agrees to application of UNCITRAL Rules – Application of Rules in arbitrations taking place under UNCITRAL Arbitration Rules or other Rules

Mauritius Convention _________________ • Reservations (Article 3) • Parties can exclude application of Convention – particular treaties – arbitrations conducted using rules outside of UNCITRAL – where rules are revised

Benefits & Challenges _____________ __ • Benefits – clearer more predictable rules – greater coherence in dispute resolution – greater ability to understand development and trends in ISDS • Challenges – Uncertainty in def’n of confidential business information or protected information – Investors may see info harmful to reputation or other business interests exposed

Questions for Discussion _________________ • Is transparency good/bad? Does it matter from whose perspective this question is answered? • How often do industry associations participate via third party submissions? • Does transparency in funding arrangements help or hinder the arbitration process? • Is the intent of increased transparency to move investors-state arbitration away from the commercial arbitration model? If so, why? • Of the forms of transparency we discuss, is there a preference for certain forms of transparency? • Who should pay for transparency?