Frequently Asked Questions on Transparency
The Rules on Transparency are a set of procedural rules that, when they apply, will make treaty-based investor-State arbitrations (also widely known as investor-State dispute settlements, or ISDS) open and accessible to the public.
Currently, most arbitrations between investors and States are conducted outside the public spotlight - but such cases are often of public interest, they involve taxpayers' money and disputes on, for instance, natural resources or environmental issues. These new innovative Rules mean that the public is able to find out about such cases.
The Rules are available on UNCITRAL's website, here.
The Transparency Registry (also called the repository) is a central, online source that publishes all information to be made public under the Rules.
The Transparency Registry is freely accessible to the public.
The Rules came into effect on 1 April 2014. For investment treaties concluded on or after that date, the Rules will apply if included in the treaties.
For investment treaties concluded before 1 April 2014, the Rules can also be applied if parties to treaties or parties to disputes agree to their application.
The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, adopted by the General Assembly on 10 December 2014, is an instrument by which Parties to investment treaties concluded before 1 April 2014 express their consent to apply the Rules on Transparency and it constitutes an efficient mechanism for the application of the Rules to disputes arising under such treaties.
If the Rules apply following their inclusion in an investment treaty, the disputing parties must apply the Rules, and cannot derogate from them, unless the investment treaty permits them to do so.
Can parties to a treaty-based investor-State arbitration decide to use the Rules on Transparency even if they are not contained in the investment treaty under which the arbitration is initiated?
Under the Rules, information and documents in the arbitration process are made public, subject to certain safeguards, including the protection of confidential information.
At the "notice of arbitration" stage of proceedings, the following is being published: the name of the disputing parties, the economic sector involved, and the investment treaty under which the claim is being made.
Each published case will include: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defence, any further written statements or written submissions by a disputing party, a table listing all exhibits to those documents, if it has been prepared for the proceedings, any written submissions by the non-disputing treaty Party/Parties and by third parties, transcripts of hearings, where available, and orders, decisions and awards of the arbitral tribunal.
Further, expert reports and witness statements are being published upon request by any person to the arbitral tribunal, and subject to confidentiality provisions in the Rules.
Hearings will be open, subject to certain safeguards for the protection of confidential information or the integrity of the arbitral process.
Can third parties (amicus curiae) and non-disputing treaty parties make submissions under the Rules on Transparency?
Yes, under certain criteria set out in the Rules, both third parties and non-disputing treaty parties can make submissions.
Under the Rules arrangements will be made to prevent any confidential or protected information from being made available to the public. There are further safeguards in the Rules to ensure that submissions do not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
No. The Rules apply to investor-State arbitration arising under an investment treaty.