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United Nations Convention on Transparency in Treaty-based Investor-State Arbitration

  • Neale H. Bergman
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On December 10, 2014, the United Nations General Assembly adopted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, also known as the Mauritius Convention on Transparency, which was prepared by the United Nations Commission on International Trade Law (UNCITRAL). The Mauritius Convention is intended to provide states with an efficient mechanism for applying the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Transparency Rules) in investor-state arbitrations arising under investment treaties concluded before the Transparency Rules’ effective date of April 1, 2014. The Mauritius Convention was opened for signature on March 17, 2015, in Port Louis, Mauritius.

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* This text was reproduced and reformatted from the text available at the United Nations website (visited July 16, 2015), http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/69/116&Lang=E.

1 G.A. Res. 69/116, U.N. Doc. A/RES/69/116, ¶ 2 (Dec. 10, 2014) (containing, in addition to the General Assembly Resolution [hereinafter G.A. Res. 69/116], the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration [hereinafter Mauritius Convention]), available at http://www.uncitral.org/pdf/english/texts/arbitration/transparencyconvention/Transparency-Convention-e.pdf.

2 Press Release, UNCITRAL, UN Commission on International Trade Law Approves Draft UNCITRAL Convention on Transparency in Treaty-based Investor-State Arbitration, U.N. Press Release UNIS/L/202 (July 10, 2014), available at http://www.unis.unvienna.org/unis/en/pressrels/2014/unisl202.html. UNCITRAL’s mandate is to modernize and harmonize international trade law and it is composed of sixty member states elected by the General Assembly for terms of six years. UNCITRAL, A Guide to UNCITRAL: Basic Facts about the United Nations Commission on International Trade Law, 13 (2013), available at http://www.uncitral.org/pdf/english/texts/general/12-57491-Guide-to-UNCITRAL-e.pdf.

3 UNCITRAL, Rules on Transparency in Treaty-based Investor-State Arbitration (2014) [hereinafter Transparency Rules], available at http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.

4 G.A. Res. 69/116, supra note 1, at 1–2.

5 Id. ¶ 3.

6 Keith, Loken, Introductory Note to UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration , 52 I.L.M. 1300, 1300 (2013).

7 Id. at 1300, 1302 n.6 (noting that “[i]nvestment treaties typically offer an investor several arbitration options when a claim is submitted” and that “[u]se of the UNCITRAL Arbitration Rules is commonly among those options”). The Mauritius Convention, for example, defines the term “investment treaty” as “any bilateral or multilateral 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, which contains provisions on the protection of investments or investors and a right for investors to resort to arbitration against contracting parties to that investment treaty.” Mauritius Convention, supra note 1, art. 1(2).

8 Rep. of the United Nations Commission on International Trade Law, 41st Sess., June 16–July 3, 2008, ¶ 314, U.N. Doc. A/63/17, U.N. GAOR, 63rd Sess. Supp. No. 17 (2008), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V08/555/08/PDF/V0855508.pdf?OpenElement.

9 The new version of the UNCITRAL Arbitration Rules, like the Transparency Rules, came into effect on April 1, 2014. The new version is the same as the 2010 version of the Rules, except that the new version includes Article 1(4), which incorporates the Transparency Rules into the Arbitration Rules. See UNCITRAL, UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014), available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency.html; UNCITRAL, UNCITRAL Arbitration Rules (with new article 1, paragraph 4, as adopted in 2013) (2014), available at http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf.

10 See Transparency Rules, supra note 3, arts. 2–7; Loken, supra note 6, at 1300–01 (also noting that Article 8 of the Transparency Rules “establish[es] a repository that is responsible for publication on a website of information regarding arbitration proceedings”).

11 Loken, supra note 6, at 1301.

12 Transparency Rules, supra note 3, art. 1(1). The treaty parties, for example, could “agree otherwise” by specifying in the new investment treaty that the 1976 version of the UNCITRAL Arbitration Rules are to apply. Loken, supra note 6, at 1301.

13 Transparency Rules, supra note 3, art. 1(2); Loken, supra note 6, at 1301. In the case of a multilateral investment treaty, only the “State of the claimant and the respondent State” have to agree after April 1, 2014 to application of the Transparency Rules for them to apply. See Transparency Rules, supra note 3, art. 1(2)(b).

14 Loken, supra note 6, at 1301.

15 Id.

16 G.A. Res. 69/116, supra note 1, at 1–2.

17 The Mauritius Convention permits regional economic integration organizations (e.g. the European Union) to become a party, as long as the organization is also party to an investment treaty. See Mauritius Convention, supra note 1, arts. 7(1), 8. Accordingly, Article 1(1) provides that the “Convention applies to arbitration between an investor and a State or a regional economic integration organization conducted on the basis of an investment treaty concluded before 1 April 2014,” which is defined as “investor-State arbitration.” Id. art. 1(1).

18 Id. art. 2(1). Although the Mauritius Convention permits regional economic integration organizations to become a party, it is insufficient for purposes of Article 2(1) for a claimant to be from such an organization. See id. (requiring, among other things, that “the claimant is of a State that is a Party”).

19 Id. art. 2(2).

20 Id. arts. 2(1), 3(1)(a) & (b).

21 Id. arts. 2(2), 3(1).

22 Id. art. 2(4).

23 See UNCITRAL, Rep. of Working Group II (Arbitration and Conciliation) on its 59th Sess., ¶¶ 7779, U.N. Doc. A/CN.9/794 (Sept. 26, 2013), available at http://daccessdds-ny.un.org/doc/UNDOC/GEN/V13/867/63/PDF/V1386763.pdf?OpenElement.

24 Mauritius Convention, supra note 1, art. 2(5).

25 See UNCITRAL, Rep. of Working Group II (Arbitration and Conciliation) on its 60th Sess., ¶ 123, U.N. Doc. A/CN.9/799 (Feb. 13, 2014), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V14/009/28/PDF/V1400928.pdf?OpenElement (stating that “[t]he Working Group agreed to retain the provision . . . on the basis that the only risk identified by the Working Group concerned the potential use of an MFN clause by claimants. It was reiterated that the Working Group could not, and did not purport to, make any statement or take any position as to the applicability or otherwise of MFN clauses to any given situation, but was merely providing for a procedural bar to prevent a claimant from invoking an MFN provision to seek to alter the application or non-application of the Rules on Transparency under this convention.”); Rep. of the United Nations Commission on International Trade Law, 47th Sess., July 7–18, 2014, ¶ 34, U.N. Doc. A/69/17, U.N. GAOR 69th Sess. Supp. No. 17 (2014), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V14/053/54/PDF/V1405354.pdf?OpenElement (“The Commission confirmed that the deliberations on MFN clauses in the context of the convention should not be interpreted as taking, and did not take, a position on the question of whether MFN clauses applied to dispute settlement procedures under investment treaties.”).

26 Mauritius Convention, supra note 1, art. 3(4).

27 Id. art. 3(1)(a) & (b).

28 Id. art. 3(1)(c).

29 Id. art. 3(2).

30 Id. art. 4(2) & (3). Reservations made at the time of signature, however, are subject to confirmation upon ratification, acceptance or approval. Id. art. 4(2).

31 Id. art. 4(4).

32 Id. arts. 3(2), 4(4).

33 Id. art. 4(6). Notably, the Convention and any reservation or withdrawal of a reservation only applies to investor-State arbitrations commenced after the date when the Convention, reservation, or withdrawal of a reservation enters into force or takes effect. Id. art. 5.

34 Id. art. 9(1). As of August 14, 2015, Canada, Finland, France, Germany, Italy, Mauritius, Sweden, the Syrian Arab Republic, the United Kingdom of Great Britain and Northern Ireland, and the United States of America have signed the Mauritius Convention, but thus far only Mauritius had ratified, accepted, approved, or acceded to it. See UNCITRAL, Status – United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York 2014), http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention_status.html (showing the latest status of the Convention) (last accessed Aug. 14, 2015).

35 Mauritius Convention, supra note 1, art. 6.

1 Official Records of the General Assembly, Sixty-eighth Session, Supplement No. 17 (A/68/17), chap. III and annex I.

2 Ibid., chap. III and annex II.

3 Ibid., para. 127.

4 See A/CN.9/813 and Add.1.

5 Official Records of the General Assembly, Sixty-ninth Session, Supplement No. 17 (A/69/17), para. 106.

6 Ibid., annex I.

* Neale H. Bergman is a Legal Officer at the International Institute for the Unification of Private Law (UNIDROIT). He formerly served as an Attorney-Adviser in the Office of Legal Adviser at the U.S. Department of State and, in that capacity, participated in the negotiations that produced the UNCITRAL Convention on Transparency in Treaty-based Investor-State Arbitration and the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. The views expressed herein are solely those of the author and do not necessarily reflect the views of UNIDROIT, the U.S. Department of State, or the U.S. Government.

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