UNCITRAL Transparency Rules and the Mauritius Convention Dr. Elizabeth Whitsitt YCAP 2018 FALL SYMPOSIUM in conjunction with ICC YAF Ottawa, Ontario November 8, 2018 As we have been discussing, a number of developments have emerged in response to concerns about the openness (or lack thereof) in investor-state dispute settlement (ISDS). As a response to this concern and because of the development of different practices regarding transparency in arbitral proceedings UNCITRAL developed a set of transparency rules that came into force in April 2014.

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 Submissions must be w/in scope of dispute 3rd Person must make application In determining whether to permit such applications arbitral tribunal has to balance a number of interests (e.g. whether the third party has an interest in the proceedings, whether their participation will assist in determining factual/legal issues from a perspective that is different from disputing parties and whether participation will unduly burden the process)

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 Arbitral tribunal in consultation with the disputing parties may invite submissions by non-disputing parties. Any invitation for submissions on further matters requires arbitral tribunal to consider a number of factors, one of which is the avoidance of submissions that are tantamount to diplomatic protection

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 All of these transparency provisions are subject to an exception where information is confidential or protected information. Determinations about whether information is confidential or protected are to be made by arbitral tribunal in conjunction with the parties. Arbitral tribunals are required to make arrangements to ensure that this information is not disclosed. This may involve arranging private hearings, redaction determinations, Limits on publication if it would jeopardize the integrity of the arbitral process (Articles 7(6) & (7))

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 Application of Rules Article 1 (1) The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (“Rules on Transparency”) shall apply to investor-State arbitration initiated under the UNCITRAL Arbitration Rules pursuant to a treaty providing for the protection of investments or investors (“treaty”)* concluded on or after 1 April 2014 unless the Parties to the treaty** have agreed otherwise. (2) In investor-State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a treaty concluded before 1 April 2014, these Rules shall apply only when: (a) The parties to an arbitration (the “disputing parties”) agree to their application in respect of that arbitration; or (b) The Parties to the treaty or, in the case of a multi- lateral treaty, the State of the claimant and the respondent State, have agreed after 1 April 2014 to their application. - provision requires States and/or investors to expressly “opt in” to the Transparency Rules for disputes arising under existing treaties. because there are literally thousands of investment treaties concluded prior to 1 April 2014 that are likely to ground investment arbitrations going forward, application of the UNCITRAL Rules on Transparency had a limited impact in terms of promoting sweeping (or all-encompassing) changes to transparency in ISDS. This is where the Mauritius Convention comes in.

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 Mechanism for pre- April 2014 investment treaties to update to the Rules (Article 1) The Mauritius Convention was finalized and adopted in July 2014. It came into force in Canada in late 2017. Transparency Rules apply automatically where: both the respondent State and the investor’s home state are parties to the Mauritius Convention or where the respondent State is a party to the Mauritius Convention and the investor agrees to the application of the UNCITRAL Rules on Transparency.

Mauritius Convention _________________________________ Reservations (Article 3) Parties can exclude application of Convention particular treaties arbitrations conducted using rules outside of UNCITRAL where rules are revised Parties can limit application of the Transparency Rules by making reservations, and application is not impacted by whether or not UNCITRAL was selected as the governing forum for disputes. As I already stated at the outset. The Mauritius Convention came into force for Canada in late 2017. Thus far, the Convention is in force in only 3 other states (Cameroon, Mauritius and Switzerland). The Convention will also come into force for Gambia in late March 2019. For Canada, then the transparency rules may have broad application, particularly where an investor unilaterally consents to that application. One question we might all ask is why Canada has ratified the Mauritius Convention: Some of the rationale may be explainable based on public outcry over ISDS in recent years. But, we also have some indication that Canada was considering the potential benefits that transparency may provide to investors operating abroad or looking to invest here.

Benefits & Challenges ___________________________ 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 With that I will turn things over to Stephanie to discuss third party participation.

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?