The UN adopts Convention to enhance ISDS transparency

On 10 December 2014, the United Nations General Assembly adopted the Convention on Transparency in Treaty-based Investor-State Arbitration. The Convention will be open for signature on 17 March 2015.

The new Convention is to take into account the public interest involved in an ISDS by giving the public access to documents and the opportunity to participate in the ISDS proceeding. It has been globally recognized that transparency will promote predictability and accountability.

Previously, in 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted Rules on Transparency in Treaty-based Investor-State Arbitration.

As a general rule, the Transparency Rules are set to apply to ISDS proceeding under future investment treaties, concluded after 1 April 2014. However, thanks to the newly adopted Convention, the impact of the UNCITRAL Transparency Rules will become more far-reaching, by making it possible for States to apply the rules to ISDS cases arising also under any of the 3,000 investment agreements concluded also before 1 April 2014. The Transparency Rules may also apply to ISDS cases decided under arbitration rules different from the UNCITRAL Arbitration Rules.

Salient features of the Transparency Rules:

  1. All documents related to the arbitration proceedings shall be made public, including notice of claims, submissions by parties, transcript of hearings and the award.
  2. Hearings should be open to the public; the public may also attend through video links.
  3. The tribunal may allow written submission of a non-party to the dispute about a matter within dispute.

It may be noted that also before the adoption of this Convention, transparency and public participation have existed in ISDS. For instance, the NAFTA countries United States, Canada and Mexico have agreed that all ISDS cases under the NAFTA shall be made transparent, and that tribunals should provide opportunities for submissions from non-disputing parties.

However, the new Convention forwards a level of transparency that is unprecedented in international arbitration. With the new rules, ISDS will be more transparent than most domestic courts.

The adoption of the Convention demonstrates how ISDS reform is entirely possible – and under way.