U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

69–118 

" ! SENATE 

114TH CONGRESS

2d Session 

TREATY DOC. 

2016

114–15 

UNITED NATIONS CONVENTION ON TRANSPARENCY 

IN TREATY-BASED INVESTOR-STATE ARBITRATION 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

UNITED NATIONS CONVENTION ON TRANSPARENCY IN TREATYBASED INVESTOR-STATE ARBITRATION (CONVENTION), DONE AT 

NEW YORK ON DECEMBER 10, 2014 

DECEMBER 9, 2016.—Treaty was read the first time, and together with 

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, December 9, 2016. 

To the Senate of the United States: 

With a view to receiving the advice and consent of the Senate to 

ratification, subject to certain reservations, I transmit herewith the 

United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (Convention), done at New York on December 10, 2014. The report of the Secretary of State, which includes 

an overview of the Convention, is enclosed for the information of 

the Senate. 

The Convention requires the application of the modern transparency measures contained in the United Nations Commission on 

International Trade Law (UNCITRAL) Transparency Rules to certain investor-state arbitrations occurring under international investment agreements concluded before April 2014, including under 

the investment chapters of U.S. free trade agreements and U.S. bilateral investment treaties. These transparency measures include 

publication of various key documents from the arbitration proceeding, opening of hearings to the public, and permitting non-disputing parties and other interested third persons to make submissions to the tribunal. As the UNCITRAL Transparency Rules by 

their terms automatically apply to arbitrations commenced under 

international investment agreements concluded on or after April 1, 

2014, and that use the UNCITRAL Arbitration Rules (unless the 

parties to such agreements agree otherwise), there is no need for 

the Convention to apply to international investment agreements 

concluded after that date. 

Transparency in investor-state arbitration is vital, given that 

governmental measures of interest to the broader public can be the 

subject matter of the proceedings. The United States has long been 

a leader in promoting transparency in investor-state arbitration, 

and the 11 most recently concluded U.S. international investment 

agreements that contain investor-state arbitration already provide 

for modern transparency measures similar to those made applicable by the Convention. However, 41 older U.S. international investment agreements lack all or some of the transparency measures. 

Should the United States become a party, the Convention would require the transparency measures to apply to arbitrations under 

U.S. international investment agreements concluded before April 

2014, to the extent that other parties to those agreements also join 

the Convention and to the extent the United States and such other 

parties do not take reservations regarding such arbitrations. The 

Convention would also require the transparency measures to apply 

in investor-state arbitrations under those agreements when the 

United States is the respondent and the claimants consent to their 


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application, even if the claimants are not from a party to the Convention. 

The United States was a central participant in the negotiation of 

the Convention in the UNCITRAL. Ratification by the United 

States can be expected to encourage other countries to become parties to the Convention. The Convention would not require any implementing legislation. 

I recommend, therefore, that the Senate give early and favorable 

consideration to the Convention and give its advice and consent to 

ratification by the United States, subject to certain reservations. 

BARACK OBAMA.


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LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, DC, April 26, 2016. 

The PRESIDENT, The White House. 

THE PRESIDENT: I have the honor to submit to you, with a view 

to its transmittal to the Senate for advice and consent to ratification, the United Nations Convention on Transparency in TreatyBased Investor-State Arbitration, subject to the reservations set 

forth in the enclosed Overview of the Convention. The Convention 

was adopted in New York on December 10, 2014. 

As a leader in the development of transparency measures in investor-state arbitration, the United States was a central participant in the negotiation of this treaty at the United Nations Commission on International Trade Law (UNCITRAL). The Convention 

requires the application of modern transparency measures, similar 

to those included in the investment chapters of recent U.S. free 

trade agreements (FTAs) and bilateral investment treaties (BITs), 

to investor-state arbitrations occurring under certain international 

investment agreements concluded before April 2014, most of which 

lack some or all such measures. 

Transparency in investor-state arbitration is vital, given that 

government measures of interest to the broader public can be the 

subject matter of the proceedings. Moreover, transparency helps 

both the public and governments monitor how international investment agreements are being interpreted. 

The transparency measures applied by the Convention are contained in the UNCITRAL Rules on Transparency in Treaty-Based 

Investor-State Arbitration (UNCITRAL Transparency Rules) adopted in 2013, which have three main effects on the transparency of 

investor-state arbitrations. First, the UNCITRAL Transparency 

Rules require a wide range of key documents from the arbitration 

proceeding to be made available to the public, which lets the public 

review the arguments that are being made on both sides of the dispute, as well as the reasoning of the arbitral tribunal in its award. 

Second, they require that hearings for the presentation of evidence 

or oral arguments be open to the public, which enables attendance 

at the proceedings just as if they had occurred in a domestic court. 

Third, they permit non-disputing parties and other third persons to 

make submissions to the arbitral tribunal, which provides an opportunity for those with a significant interest in the dispute to contribute their voices to the proceedings. 

Every U.S. BIT and FTA concluded since 2003 that provides for 

investor-state arbitration already includes similar transparency 

measures. However, 41 older U.S. international investment agreeVerDate Sep 11 2014 05:54 Dec 11, 2016 Jkt 069118 PO 00000 Frm 00005 Fmt 7633 Sfmt 7633 E:\HR\OC\TD015.XXX TD015

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ments lack all or some of the transparency measures. Should the 

United States become a party, the Convention would require the 

application of the UNCITRAL Transparency Rules in arbitrations 

under U.S. international investment agreements concluded before 

April 2014, to the extent that other parties to those agreements 

also join the Convention and if neither the United States nor those 

other parties take reservations permitted by the Convention pertaining to such arbitrations. The Convention would also require the 

application of the UNCITRAL Transparency Rules to investor-state 

arbitrations under U.S. international investment agreements where 

the United States is the respondent in the dispute and claimants 

in such arbitrations consent to their application, even if those 

claimants are from countries that are not parties to the Convention. As the 11 U.S. international investment agreements concluded between 2003 and 2008 already contain modern transparency standards that are as high as or higher than those applied 

by the Convention, it is recommended that the United States decline to apply the Convention to those 11 agreements by making 

a permissible reservation to that effect. 

Only international investment agreements concluded before April 

1, 2014, are within the scope of the Convention because the 

UNCITRAL Transparency Rules by their terms automatically 

apply to arbitrations under international investment agreements 

that are concluded on or after April 1, 2014, and that use the 

UNCITRAL Arbitration Rules, unless the parties to such agreements otherwise agree. Therefore, parties to international investment agreements concluded on or after April 1, 2014, who wish to 

apply the UNCITRAL Transparency Rules can easily incorporate 

those Rules into their agreements simply by calling for the application of the UNCITRAL Arbitration Rules or by otherwise explicitly 

incorporating the Transparency Rules into their agreements at the 

time of negotiation of their agreements. 

In addition to the United States, fifteen other countries have 

signed the Convention thus far. Ratification by the United States 

can be expected to encourage other countries to sign and become 

parties to the Convention. Moreover, even to the extent that other 

countries do not ratify, the Convention will still apply the Transparency Rules to arbitrations in which the United States is the respondent if investors from those countries consent to the application of the Transparency Rules. The Convention would not be selfexecuting, and no implementing legislation would be needed. 

I recommend, therefore, that you transmit the Convention to the 

Senate for advice and consent to ratification, subject to the reservations set forth in the enclosed Overview of the Convention. 

Respectfully submitted. 

JOHN F. KERRY.

Enclosure: As stated. 


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OVERVIEW OF THE CONVENTION 

I. Background and Purpose 

The 2014 United Nations Convention on Transparency in Treaty-Based InvestorState Arbitration ("Convention") requires the application of modem transparency 

measures to investor-state arbitrations occurring under certain international 

investment agreements concluded between Parties. The transparency measures to 

be applied under the Convention are the Rules on Transparency in Treaty~Based 

Investor-State Arbitration adopted by the United Nations Commission on 

International Trade Law ("UNCITRAL") in 2013 ("UNCITRAL Transparency 

Rules" or "Transparency Rules"). The Transparency Rules are substantively 

similar to those included in recent U.S. bilateral investment treaties ("BITs") and 

investment chapters of free trade agreements ("FTAs"). The United States 

participated in the development and adoption of the UNCITRAL Transparency 

· Rules and supports their widespread application. The text of the UNCITRAL 

Transparency Rules is included as an annex to this overview. 

The Convention was negotiated under the auspices ofUNCITRAL and was 

adopted by the U.N. General Assembly on December 10, 2014. It opened for 

signature on March 17, 2015, and, as of March 1, 2016, has sixteen signatories, 

including the United States. As of March 1, 2016, the Convention has not entered 

into force. 

The Convention has three main effects on the transparency of investor-state 

arbitration occurring under an international investment agreement covered by the 

Convention. First, it requires a wide range of documents from the arbitration 

proceeding to be made available to the public (e.g., written statements by parties, 

transcripts of hearings, and awards issued by the tribunal). Second, it requires that 

hearings for the presentation of evidence or oral arguments be open to the public. 

Third, it permits non-disputing parties and other third persons to make submissions 

to the arbitral tribunal. 

Every U.S. BIT and FTA that was concluded since 2003 and that provides for 

investor-state arbitration already includes similar transparency measures. However, 

41 older U.S. international investment agreements do not include all of these 

transparency measures. 

By their terms, the Transparency Rules only apply in disputes initiated under 

UNCITRAL Arbitration Rules and arising out of international investment 
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agreements that were concluded on or after April I, 2014 (unless the disputing 

parties otherwise agree). The Convention in tum only applies to agreements 

concluded prior to April 2014. The Convention thus provides an efficient 

mechanism for countries to bind themselves to apply these transparency measures 

to international investment agreements concluded before April2014 that lack such 

measures, without the need to reach separate agreements to that effect with the 

relevant partners for each such older agreement. Under the Convention, the 

transparency measures apply to investor-state arbitration under any international 

investment agreement concluded before April I, 2014, as long as both relevant 

countries (the respondent in the arbitration as well as the investor's country) are 

parties to the Convention and have not taken a relevant reservation. The 

Convention also requires application of the transparency measures to investor-state 

arbitration under covered international investment agreements if the respondent is 

a Party to the Convention that has not made an applicable reservation and the 

claimant consents to such application (even if the claimant is from a state that is 

either a non-Party or that has made such a reservation). Each party to the 

Convention can take reservations to prevent the Convention (and therefore the 

UNCITRAL Transparency Rules) from applying to particular international 

investment agreements. Because recent U.S. BITs and FTAs already contain 

provisions that set a standard of transparency that is at least as high as that found in 

the Transparency Rules, it is proposed that the U.S. take reservations with respect 

to those 11 agreements. 

II. Transparency Rules 

As noted above, the Convention requires the application ofUNCITRAL's 

Transparency Rules to certain investor-state arbitrations. The application of the 

Transparency Rules to a particular arbitration would have three main effects on the 

arbitration. It would require publishing certain documents, opening hearings to the 

public, and providing non-disputing parties and other third persons with the ability 

to file submissions. 

The publication requirement has several elements. The Transparency Rules 

provide, in Article 2, that "[ o ]nee the notice of arbitration has been received by the 

respondent, each ofthe disputing parties shall promptly communicate a copy of the 

notice of arbitration to the repository," which then makes public the name of the 

disputing parties, the economic sector involved, and the international investment 

agreement under which the claim is being made. (UNCITRAL is currently 

operating the repository.) Article 3 of the Transparency Rules then provides for the 

publication by the repository of various documents during the arbitration. Under 
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Article 3, the repository is required to publish most of these documents as a matter 

of course. Other documents are to be made available to the public "upon request by 

any person to the arbitral tribunal" or, in some cases, on the initiative of the arbitral 

tribunal or upon request from any person "and after consultation with the disputing 

parties." 

With regard to submissions by persons other than parties to the dispute, the 

Transparency Rules provide in Article 5 that the tribunal shall allow a nondisputing party to the international investment agreement to file a submission on 

issues of interpretation of the agreement, subject to the requirement that the 

submission "does not disrupt or unduly burden the arbitral proceedings, or unfairly 

prejudice any disputing party." The Transparency Rules also enable arbitral 

tribunals to invite non-disputing party submissions on issues pertaining to 

interpretation ofthe international investment agreement, after consultation with the 

parties to the dispute. Moreover, after consulting with the disputing parties, the 

tribunal may also permit non-disputing parties to the agreement to file submissions 

on other matters. With respect to third persons other than non-disputing parties to 

the international investment agreement, Article 4 of the Transparency Rules also 

allows the tribunal to accept submissions after consultation with the disputing 

parties. The Transparency Rules set forth a number of factors for the tribunal to 

take into account in deciding how to exercise this discretion. 

With regard to public hearings, Article 6 of the Transparency Rules requires that 

hearings for the presentation of evidence or oral arguments be open to the public. 

Parts of hearings can be held in private if necessary to protect confidential business 

information or the integrity of the arbitral process, and "the arbitral tribunal may, 

after consultation with the disputing parties, decide to hold all or part of the 

hearings in private where this becomes necessary for logistical reasons." 

The Transparency Rules limit the application of these transparency measures by 

providing in Article 7 that "confidential or protected information" (including, for 

example confidential business information or information the disclosure of which 

would impede law enforcement) shall not be made available to the public. The 

tribunal is responsible for putting procedures in place to protect such information. 

Moreover, nothing in the Transparency Rules "requires a respondent State to make 

available to the public information the disclosure of which it considers to be 

contrary to its essential security interests." Finally, the Transparency Rules provide 

that information shall not be made available to the public where doing so would 

')eopardize the integrity of the arbitral process because it could hamper the 

collection or production of evidence, lead to the intimidation of witnesses, lawyers 
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acting for disputing parties or members of the arbitral tribunal, or in comparably 

exceptional circumstances." 

III. Article-by-Article Summary of the Convention 

Preamble 

The Preamble to the Convention identifies the need for provisions on transparency 

in arbitration proceedings used to settle investor-state disputes to take into account 

the public interest in such arbitrations. The Preamble notes the existence of many 

existing international investment agreements and highlights the Convention's goal 

of enabling countries to easily apply the Transparency Rules to arbitrations under 

those agreements. 

Article 1. Scope of application 

Article 1 identifies the scope of the Convention's application. It 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 April2014." In tum, "investment treaty" is defined as "any 

bilateral or multilateral 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." 

Thus, the term "treaty" as used in this Convention has the meaning the term has 

under international law and refers to international agreements governed by 

international law, which under U.S domestic law and practice include both 

investment treaties made by the President with the advice and consent of the 

Senate under Article II of the U.S. Constitution (such as U.S. bilateral investment 

treaties) as well as executive agreements addressing investment (such as certain 

free trade agreements). 

The United States has 52 existing agreements that quali:ty as "investment treaties" 

under the Convention: the North American Free Trade Agreement- NAFTA (to 

which Canada and Mexico are also parties); the Dominican Republic-Central 

America FTA (to which Costa Rica, El Salvador, Guatemala, Honduras, 

Nicaragua, and the Dominican Republic are also parties); FT As with Chile, 

Colombia, South Korea, Morocco, Oman, Panama, Peru, and Singapore; the 

Bilateral Trade Agreement with Vietnam; and BITs with Albania, Argentina, 

Armenia, Azerbaijan, Bahrain, Bangladesh, Bolivia, Bulgaria, Cameroon, the 
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Democratic Republic of the Congo, the Republic of Congo, Croatia, the Czech 

Republic, Ecuador, Egypt, Estonia, Georgia, Grenada, Honduras, Jamaica, Jordan, 

Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Mongolia, Morocco, 

Mozambique, Panama, Poland, Romania, Rwanda, Senegal, Slovakia, Sri Lanka, 

Trinidad and Tobago, Tunisia, Turkey, Ukraine, and Uruguay. (Although four of 

those BITs-those with Bolivia, Honduras, Morocco, and Panama-have been 

either terminated or suspended in part, their arbitration provisions continue to 

apply to certain investments in accordance with the terms of such terminations and 

suspensions.) 

As noted below under the discussion of Article 3, 11 recent U.S. FT As and BITs 

already contain provisions that set transparency standards at least as high as those 

contained in the Transparency Rules. As explained in more detail under the 

discussion of Article 3, it is proposed that the United States take reservations 

regarding these 11 international investment agreements. This approach would 

result in the United States applying the Convention to 41 international investment 

agreements. 

Under each of these 41 international investment agreements, an investor of one 

party can choose binding arbitration as a means of settling certain investment 

disputes with another party. All of these agreements permit the investor to choose 

to submit the dispute to the International Centre for the Settlement oflnvestment 

Disputes (ICSID), and most also provide that, where applicable, the dispute can be 

submitted under the ICSID Additional Facility Rules (e.g., if the respondent state is 

not a party to the ICSID convention). Most of the international investment 

agreements also permit an investor to choose arbitration under the UNCITRAL 

Arbitration Rules or any other arbitration institution or rules to which the parties to 

the dispute agree. The Convention would apply the Transparency Rules to 

arbitrations occurring under any of these sets of arbitration rules, and the 

Transparency Rules would prevail in the event of a conflict with those other rules 

except to the extent a party takes a relevant reservation. 

The Convention only applies to international investment agreements concluded 

before April 1, 2014, and thus would not apply to any new international investment 

agreements that the United States may conclude in the future. 
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Article 2. Application of the UNCITRAL Rules on Transparency 

Article 2 establishes m-ider what circumstances the Convention requires that the 

Transparency Rules be applied to investor-state arbitrations occurring under 

international investment agreements within its scope. 

For arbitration under agreements within its scope, subparagraph 2(1) of the 

Convention provides that the UNCITRAL Transparency Rules shall apply to any 

investor-state arbitration in which the respondent is a Party to the Convention and 

the claimant is of a state (i.e., a country) that is also a Party to the Convention (as 

long as neither the respondent nor the state of the claimant has made a relevant 

reservation under Article 3). Thus, this provision requires the application of the 

UNCITRAL Transparency Rules only in cases where both relevant states (or, for a 

respondent, a regional economic integration organization ("REIO")) are Parties to 

the Convention. Only by agreement of both such states can the Convention 

supplement or supersede the procedures established in the international investment 

agreement under which the arbitration occurs. (If the claimant is from a state that is 

not a Party to the Convention or from a state that has taken a relevant reservation, 

Article 2(1) does not apply, even if the claimant's state is a member of a REIO that 

is a Party to the Convention. However, as described below, Article 2(2) might 

apply.) Thus, Article 2(1) would only affect U.S. international investment 

agreements within the scope of the Convention with respect to which a reservation 

is not taken, to the extent that other parties to those agreements also join the 

Convention and similarly do not take a reservation. 

Subparagraph 2(2) further requires the application of the Transparency Rules to 

investor-state arbitration in which the respondent is a Party to the Convention that 

has not made an applicable reservation, but the claimant is from a state that is 

either a non-Party or that has made such a reservation, if the claimant agrees to 

application of the Transparency Rules. Thus, for situations in which the claimant's 

state has not agreed that the Transparency Rules should apply, this provision 

essentially establishes a "unilateral offer" by the respondent state to apply the 

Transparency Rules; the claimant can then choose whether or not to accept the 

offer. As noted below, Article 3(l)(c) permits a Party to take a reservation 

declining to apply Article 2(2) (i.e., declining to make the unilateral offer) when it 

is a respondent. 

Subparagraph 2(3) provides that if the Transparency Rules are updated in the 

future, the most recent version will apply under Articles 2(1) and 2(2). When such 

an update occurs, a Party can opt out of this rule by making a reservation within six 
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month of the adoption of such update pursuant to Article 3(2), in which case the 

new version of the Transparency Rules will not apply to arbitrations in which it is 

the respondent. However, the newer version will apply to arbitrations in which that 

Party's investor is the claimant, unless the respondent has also made a reservation 

under Article 3(2). If the Transparency Rules are updated more than once in the 

future, the most recent version to which the respondent has not made a reservation 

will apply. 

Subparagraph 2(4) provides that in an arbitration covered by Article 2(1) of the 

Convention, the final sentence of Article 1(7) of the Transparency Rules (which 

provides that the terms of the treaty under which the arbitration is conducted shall 

prevail in case of a conflict between the Rules and the treaty) shall not apply. As 

the Rules alone are not in the form of a legally binding instrument, they cannot 

trump binding treaty provisions. However, the Convention makes the Rules legally 

binding in cases covered by Article 2(1), and is intended to displace any 

conflicting provisions of the investment treaty under which the arbitration is being 

conducted. Therefore, applying this conflict rule would be contrary to the very 

purposes of the Convention, given that many international investment agreements 

that were in effect before April2014 may have provisions that conflict with the 

Convention's transparency provisions. 

Subparagraph 2(5) provides that "[t]he Parties to this Convention agree that a 

claimant may not invoke a most favoured nation provision to seek to apply, or 

avoid the application of, the UNCITRAL Rules on Transparency under this 

Convention." Article 2(5) does not suggest that use of the Transparency Rules 

should be considered either more or less favorable treatment. Instead, Article 2(5) 

establishes a procedural bar preventing claimants from invoking such an MFN 

clause to argue that the Transparency Rules should not apply when under the terms 

of the Convention they would otherwise apply, or that they should apply when 

under the terms of Convention they otherwise would not apply. 

Article 3. Reservations 

Article 3 permits Parties to make four specific types of reservations (and precludes 

all other reservations). 

Article 3(1)(a) allows a Party to decline to apply the Convention to particular 

investment treaties to which it is a party. Eleven of the 52 U.S. international 

investment agreements that are within the scope of the Convention-all of the 

FTAs since 2003 that include in their investment chapters provisions on investor-
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state arbitration, as well as the Rwanda and Uruguay BITs-already contain 

provisions that establish transparency standards slightly higher than those in the 

Transparency Rules. For example, unlike the Transparency Rules, these II 

agreements do not contain an exception explicitly permitting a hearing to be held 

entirely in private where necessary for logistical reasons, and most of these 

agreements provide arbitral tribunals with slightly broader discretion than under 

the Transparency Rules to accept submissions by third persons (i.e., amicus 

curiae). Thus, applying the Convention to those agreements would result in the 

application of a slightly lower standard of transparency than those agreements 

currently provide. Therefore, it is recommended that the United States decline to 

apply the Convention to those II agreements by including the following 

reservation in its instrument of ratification to the Convention: 

Pursuant to Article 3(I)(a) of the Convention, the United States declares that 

it shall not apply the Convention to investor-state arbitration under the 

following investment treaties: 

Title: Dominican Republic -Central America- United States Free Trade 

Agreement; 

Contracting Parties: the Republic of Costa Rica, the Republic of El Salvador, 

the Republic of Guatemala, the Republic of Honduras, the Republic of 

Nicaragua, the Dominican Republic, and the United States of America. 

Title: United States - Chile Free Trade Agreement; 

Contracting Parties: the Republic of Chile and the United States of America. 

Title: United States - Colombia Trade Promotion Agreement; 

Contracting Parties: the Republic of Colombia and the United States of 

America. 

Title: Free Trade Agreement between the United States of America and the 

Republic of Korea; 

Contracting Parties: the Republic of Korea and the United States of 

America. 

Title: United States - Peru Trade Promotion Agreement; 

Contracting Parties: the Republic of Peru and the United States of America. 

Title: United States - Morocco Free Trade Agreement; 
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Contracting Parties: the Kingdom of Morocco and the United States of 

America. 

Title: Agreement between the Government of the United States of America 

and the Government of the Sultanate of Oman on the Establishment of a 

Free Trade Area; 

Contracting Parties: the Sultanate of Oman and the United States of 

America. 

Title: United States - Panama Trade Promotion Agreement; 

Contracting Parties: the Republic of Panama and the United States of 

America. 

Title: Treaty between the United States of America and the Oriental 

Republic of Uruguay Concerning the Encouragement and Reciprocal 

Protection of Investment; 

Contracting Parties: the Oriental Republic of Uruguay and the United States 

of America. 

Title: Treaty between the Government of the United States of America and 

the Government of the Republic of Rwanda Concerning the Encouragement 

and Reciprocal Protection ofinvestment; 

Contracting Parties: the Republic of Rwanda and the United States of 

America. 

Article 3(1)(b) allows a Party to reserve against the application of Articles 2(1) and 

2(2) to arbitrations in which the Party is a respondent, where such arbitration is 

conducted under specific sets of arbitration rules or procedures other than the 

UNCITRAL Arbitration Rules. Without such a reservation, those Articles provide 

for the application of the Transparency Rules to arbitrations within their scope 

regardless of which arbitration rules or procedures are used. A Party cannot take 

such a reservation with respect to arbitrations conducted under the UNCITRAL 

Arbitration Rules. Moreover, any reservation made pursuant to Article 3(l)(b) 

applies only when the reserving Party is the respondent in an arbitration; if an 

investor of that Party brings a claim against another Party that has not made such a 

reservation, the Transparency Rules will still apply. It is not proposed that the 

United States make a reservation under Article 3(1 )(b), thus enabling the 

application of modem transparency measures to investor-state arbitrations under 

older U.S. international investment agreements regardless of which set of 

arbitration rules is used. 
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Article 3(l)(c) allows a Party to opt out of Article 2(2)-the "unilateral offer" of 

application of the Transparency Rules. If a Party makes such a reservation, the 

Convention does not require the Transparency Rules to be applied in an arbitration 

brought against that Party by an investor from a state that is not a Party (or that has 

taken a relevant reservation under Article 3(l)(a) or 3(l)(b)), even if the investor 

wants the Transparency Rules to apply. In such a situation, the Party and the 

investor could still agree to apply the Transparency Rules; the Party simply would 

not be obliged pursuant to the Convention to so agree. It is not proposed that the 

United States make a reservation under Article 3(l)(c), in order to facilitate the 

application of modem transparency measures to investor-state arbitrations under 

these international investment agreements even when the claimant's state is not a 

Party to the Convention or has taken a relevant reservation under Article 3(l)(a) or 

3(l)(b). 

Article 3(2) provides that, if the Transparency Rules are revised in the future, a 

Party has six months after the adoption of the revised version to make a reservation 

declining to apply the revision. As with a reservation under Article 3(l)(b), a 

reservation under Article 3(2) only applies to arbitrations in which the reserving 

Party is a respondent; as noted above, Article 2(3) provides for the application of 

the most recent version of the Transparency Rules to which the respondent has not 

made such a reservation. No revision of the Transparency Rules has been adopted, 

nor is the negotiation of such revisions expected at this time. Therefore, this 

reservation cannot be made at this time. The possible future need for a reservation 

under Article 3(2) would be evaluated if the Transparency Rules are revised in the 

future. The executive branch would expect to consult with the Senate should such a 

circumstance arise. It is expected that the United States would participate in any 

revision of the Transparency Rules. Any such revision would be developed by 

UNCITRAL, which has a general practice of operating by consensus, and would 

be subject to approval by the U.N. General Assembly. 

Article 3(3) provides that Parties may make multiple reservations in a single 

instrument for each of the permitted reservations: (i) in respect of a specific 

investment treaty under paragraph 3(l)(a); (ii) in respect of a specific set of 

arbitration rules or procedures under paragraph 3(1 )(b); (iii) a "unilateral offer" 

under paragraph 3(l)(c); or (iv) in respect of a specific set of arbitration rules or 

procedures under paragraph 3(2). In such cases, however, Article 3(3) provides 

that each individual declaration shall constitute a separate reservation that can be 

withdrawn separately pursuant to Article 4( 6). This approach encourages protransparency actions by Parties by facilitating the withdrawal of reservations and 
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thereby allowing the application of the Transparency Rules to a broader set of 

arbitrations. 

Article 3( 4) provides that no reservations to the Convention are permitted except as 

authorized in Article 3. 

Article 4. Formulation of reservations 

Article 4 contains provisions on the form, timing, and process for making and 

withdrawing reservations. Among other things, it provides that reservations can be 

made and withdrawn at any time, except for a reservation under Article 3(2) to the 

application of a revision of the UNCITRAL Rules, which can only be made within 

six months of the adoption of such revision. Reservations made after entry into 

force of the Convention for a Party take effect after twelve months from the date of 

deposit with the depositary. 

Article 5. Application to investor-State arbitrations 

Article 5 provides that the Convention, and any reservation or withdrawal of a 

reservation, only applies to arbitrations commenced after the date on which the 

Convention, the reservation, or the withdrawal enters into force or takes effect in 

respect of each Party concerned. 

Article 6. Depositary 

The Secretary-General ofthe United Nations is the depositary for the Convention. 

Article 7. Signature, ratification, acceptance, approval, accession 

Article 7 contains provisions on signature, ratification, acceptance, approval, and 

accession. Among other things, Article 7(1) provides that any state and any REIO 

that is constituted by states and is a contracting party to an investment treaty can 

become parties to the Convention. 

Article 8. Participation by regional economic integration organizations 

Article 8(1) requires any REIO that becomes a Party to the Convention to identify 

an investment treaty to which it is a party, in order to demonstrate that it qualifies 

to be a Party to the Convention under the terms of Article 7. 
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Article 8(2) provides that where the number of Parties is relevant under the 

Convention, a REIO shall not count as a Party in addition to its member states that 

are Parties. 

Article 9. Entry into force 

Article 9 provides for the Convention to enter into force six months after the date 

of deposit of the third instrument of ratification, acceptance, approval, or 

accession. For any state or REIO that joins after the date of deposit of the third 

instrument of ratification, acceptance, approval, or accession, the Convention will 

enter into force six months after the date of the deposit of its instrument. 

Article 10. Amendment 

Article 10 contains provisions regarding the process for amending the Convention. 

Any amendment that enters into force is only binding on those Parties that have 

expressed their consent to be bound by it. Any state or REIO that becomes a Party 

after an amendment enters into force shall be considered a Party to the Convention 

as amended. 

Article 11. Denunciation of this Convention 

Article 11 provides that, if a Party denounces the Convention, the denunciation 

will take effect after 12 months. The Convention shall continue to apply to 

arbitrations commenced before the denunciation takes effect. 
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UNITED NATIONS CONVENTION ON TRANSPARENCY 

IN TREATY-BASED INVESTOR-STATE ARBITRATION 

Preamble 

The Parties to this Convention, 

Recognizing the value of arbitration as a method of settling disputes that 

may arise in the context of international relations, and the extensive and wideranging use of arbitration for the settlement of investor-State disputes, 

Also recogmzmg the need for prov1s1ons on transparency in the 

settlement of treaty-based investor-State disputes to take account of the public 

interest involved in such arbitrations, 

Believing that the Rules on Transparency in Treaty-based Investor-State 

Arbitration adopted by the United Nations. Commission on International Trade 

Law on 11 July 2013 ("UNCITRAL Rules on Transparency"), effective as of 

I April 2014, would contribute significantly to the establishment of a 

harmonized legal framework for a fair and efficient settlement of international 

investment disputes, · · 

Noting the great number of treaties providing for the protection of 

investments or investors already in force, and the practical importance of 

promoting the application of the UNCITRAL Rules on Transparency to 

arbitration under those already concluded investment treaties, 

Noting also article 1(2) and (9) of the UNCITRAL Rules on 

Transparency, 

Have agreed as follows: 
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Scope of application 

Article l 

l. This 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 ( .. investor-State arbitration"). 

2. The term "investment treaty" means any bilateral or multilateral treaty, 

including any treaty commonly referred to as a free trade agreement, economic 

integration agreement, trade and investment framework or co.operation 

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. 

Application of the UNCITRAL Rules on Transparency 

Article 2 

Bilateral or multilateral application 

I. The UNCITRAL Rules on Transparency shall apply to any investorState arbitration, whether or not initiated under the UNCITRAL Arbitration 

Rules, in which the respondent is a Party that has not made a relevant 

reservation under article 3(l){a) or {b), and the claimant is of a State that is a 

Party that has not made a·relevant reservation under article 3(l){a). 

Unilateral offer of application 

2. Where the UNCITRAL Rules on Transparency do not apply pursuant to 

paragraph I, the UNCITRAL Rules on Transparency shall apply to an investorState arbitration, whether or not initiated under the UNCITRAL Arbitration 

Rules, in which the respondent is a Party that has not made a reservation· 

relevant to that investor-State arbitration under article 3(1), and the claimant 

agrees to the application of the UNCITRAL Rules on Transparency. 

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Applicable version of the UNCJTRAL Rules on Transparency 

3. Where the UNCITRAL Rules on Transparency apply pursuant to 

paragraph I or 2, the most recent version of those Rules as to which the 

respondent has not made a reservation pursuant to article 3(2) shall apply. 

Article 1 (7) of the UNCITRAL Rules on Transparency 

4. The final sentence of article 1(7) of the UNCITRAL Rules on 

Transparency shall not apply to investor-State arbitrations under paragraph 1. 

Most favoured nation provision in an investment treaty 

5. The Parties to this Convention agree that a claimant may not invoke a 

most favoured nation provision to seek to apply, or avoid the application .of, 

the UNCITRAL Rules on Transparency under this Convention. 

Reservations 

Article 3 

J. A Party may declare that: 

(a) It shall not apply this Convention to investor-State arbitration 

under a specific investment treaty, identified by title and name of the 

contracting parties to that investment treaty; 

(b) Article 2(1) and (2) shall not apply to investor-State arbitration 

conducted using a specific set of arbitration rules or procedures other than the 

UNCITRAL Arbitration Rules, and in which it is a respondent; 

(c) Article 2(2) shall not apply in investor-State arbitration in which 

it is a respondent. 

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2. In the event of a revision of the UNCITRAL Rules on Transparency, a 

Party may, within six months of the adoption of such revision, declare that it 

shall not apply that revised version of the Rules. 

3. Parties may make multiple reservations in a single instrument. In such 

an instrument, each declaration made: 

(a) In respect of a specific investment treaty under paragraph (1 )(a); 

(b) In respect of a specific set of arbitration rules or procedures under 

paragraph (l)(b); 

(c) Under paragraph (l)(c); or 

(d) Under paragraph (2); 

shall constitute a separate reservation capable of separate withdrawal under 

article 4(6). 

4. No reservations are permitted except those expressly authorized in this 

article. 

Formulation of reservations 

Article 4 

1. Reservations may be made by a Party at any time, save for a reservation 

under article 3(2). 

2. Reservations made at the time of signature shall be subject to 

confirmation upon ratification, acceptance or approval. Such reservations shall 

take effect simultaneously with the entry into force of this Convention in 

respect of the Party concerned. 

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3. Reservations made at the time of ratification, acceptance or approval of 

this Convention or accession thereto shall take effect simultaneously with the 

entry into force of this Convention in respect ofthe Party concerned. 

4. Except for a reservation made by a Party under article 3(2), which shall 

take effect immediately upon. deposit, a reservation deposited after the entry 

into force of the Convention for that Party shall take effect twelve months after 

the date of its deposit. 

5. Reservations and their confirmations shall be deposited with the 

depositary. 

6. Any Party that makes a reservation under this Convention·may withdraw 

it at any time. Such withdrawals are to be deposited with the depositary, and 

shall take effect upon deposit. 

Application to investor-State arbitrations 

Article 5 

This Convention and any reservation, or withdrawal of a reservation, 

shall apply only to investor-State arbitrations that are commenc~d after the 

date when the Convention, reservation, or withdrawal of a reservation, enters 

into force or takes effect in respect of each Party concerned. 

Depositary 

Article 6 

The Secretary-General of the United Nations is hereby designated as the 

depositary of this Convention. 
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Signature, ratification, acceptance, approval, accession 

Article 7 

1. This Convention is open for signature in Port Louis, Mauritius, on 

17 arch 2015, and thereafter at United Nations Headquarters in New York by 

any (a) State; or (b) regional economic integration organization that is 

constituted by States and is a contracting party to an investment treaty. 

2. This Convention is subject to ratification, acceptance or approval by the 

signatories to this Convention. 

3. This Convention is open for accession by all States or regional 

economic integration organizations referred to in paragraph 1 which are not 

signatories as from the date it is open for signature. 

4. Instruments of ratification, acceptance, approval or accession are to be 

deposited with the depositary. 

Participation by regional economic integration organizations 

Article 8 

1. When depositing an instrument of ratification, acceptance, approval or 

accession, a regional economic integration organization shall inform the 

depositary of a specific investment treaty to which it is a contracting party, 

identified by title and name of the contracting parties to that investment treaty. 

2. When the number of Parties is relevant in this Convention, a regional 

economic integration organization does not count as a Party in addition to its 

member States which are Parties. 

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Entry into force 

Article 9 

1. This Convention shall enter into force six months after the date of 

deposit of the third instrument of ratification, acceptance, approval or 

accession. 

2. When a State or a regional 'economic integration organization ratifies, 

accepts, approves or accedes to this Convention after the deposit of the third 

instrument of ratification, acceptance, approval or accession, this Convention 

enters into force in respect of that State or regional economic integration 

organization six months after the date of the deposit of its instrument of 

ratification, acceptance, approval or accession. 

Amendment 

Article 10 

l. Any Party may propose an amendment to the present Convention by 

submitting it to the Secretary-General of the United Nations. The SecretaryGeneral shall thereupon communicate the proposed amendment to the Parties 

to this Convention with a request that they indicate whether they favour a 

conference of Parties for the purpose 9f considering and voting upon the 

proposal. In the event that within four months from the date of such 

communication at least one third of the Parties favour such a conference, the . 

Secretary-General shall convene the conference under the auspices of the 

United Nations. 

2. The conference of Parties shall make every effort to achieve consensus 

on each amendment. If all efforts at consensus are exhausted and no consensus 

is reached, the amendment shall, as a last resort, require for its adoption a twothirds majority vote of the Parties present and voting at the conference. 

3. An adopted amendment shall be submitted by the Secretary-General of 

the United Nations to all the Parties for ratification, acceptance or approval. 

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4. An adopted amendment enters into force six months after the date of 

deposit of the third instrument of ratification, acceptance or approval. When an 

amendment enters into force, it shall be binding on those Parties which have 

expressed consent to be bound by it. 

5. When a State or a regional economic integration organization ratifies, 

accepts or approves an amendment that has already entered into force, the 

amendment enters into force in respect of that State or that regional economic 

integration organization six months after the date of the -dej>osit of its 

instrument of ratification, acceptance or approval. 

6. Any State or regional economic integration organization which becomes 

a Party to the Convention after the entry into force of the amendment shall be 

considered as a Party to the Convention as amended. 

Denunciation of this Convention 

Article 11 

1. A Party may denounce this Convention at any time by means of a formal 

notification addressed to the depositary. The denunciation shall take effect 

twelve months after the notification is received by the depositary. 

2. This Convention shall continue to apply to investor-State arbitrations 

commenced before the denunciation takes effect. 

DONE in a single original, of which the Arabic, Chinese, English, 

French, Russian and Spanish texts are equally authentic. 

IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly 

authorized by their respective Governments, have signed the present 

Convention. 

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UNCITRAL 

Rules on Transparency 

in Treaty-based 

Investor-State Arbitration 
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Further information may be obtained from: 

UNCITRAL secretariat, Vienna Intemational Centre 

P.O. Box 500, 1400 Vienna, Austria 

Telephone: (+43-1) 26060-4060 Telefax: (+43-l) 26060-5813 

,Intcmet: www.uncitral.org E-mail: uncitral@uncitral.org 
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UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW 

UNCITRAL 

Rules on Transparency 

in Treaty-based 

Investor-State Arbitration 

, •. ~ ~ ~ \kJ ~ 

UNITED NATIONS 

New York, 2014 
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© United Nations: United Nations Commission on International 

Trade Law. January 2014. All rights reserved. 

This publication has not been formally edited. 

Publishing production: English, Publishing and Library Section. 

United Nations Office at Vienna. 
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Contents 

Page 

General Assembly resolution 68/t 09 . ............. . 

UNCITRAL Rules on Transparency in Treaty-based 

Investor-State Arbitration . . . . . . . . . . . . . . . . . . . . . . . 5 

Article 1. Scope of application. . . . . . . . . . . . . . . . . . . . 5 

Applicability of the Rules. . . . . . . . . . . . . . . . . . . . . 5 

Application of the Rules...... . . . . . . . . . . . . . . . . 5 

Discretion and authority of the arbitral tribunal . . . 6 

Applicable instrument in case of conflict . . . . . . . . 6 

Application in non-UNCITRAL arbitrations . . . . . . 7 

Article 2. Publication of information at the 

commencement of arbitral proceedings . . . . . . . . . . . . 7 

Article 3. Publication of documents . . . . . . . . . . . . . . . 7 

Article 4. Submission by a third person . . . . . . . . . . . . 8 

Article 5. Submission by a non-disputing Party to 

the treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 

Article 6. Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Article 7. Exceptions to transparency. . . . . . . . . . . . . . . 10 

Confidential or protected information . . . . . . . . . . . 10 

Integrity of the arbitral process . . . . . . . . . . . . . . . . 12 

Article 8. Repository of published information. . . . . . . 12 

iii 
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Resolution adopted by the 

General Assembly on 16 December 2013 

[on the report of the Sixth Committee (A/68/462)] 

68/109. United Nations Commission on 

International Trade Law Rules on Transparency in 

Treaty-based Investor-State Arbitration and 

Arbitration Rules (as revised in 2010, with new article 1, 

paragraph 4, as adopted in 2013) 

The General Assembly, 

Recalling its resolution 2205 (XXI) of 17 December 1966, 

by which it established the United Nations Commission on 

International Trade Law with a mandate to further the progressive harmonization and unification of the law of international 

trade and in that respect to bear in mind the interests of all 

peoples, in particular those of developing countries, in the 

extensive development of international trade, 

Recognizing the value of arbitration as a method of settling 

disputes that may arise in the context of international relations 

and the wide use of arbitration for the settlement of treaty-based 

investor-State disputes, 

Recalling its resolutions 31198 of 15 December 1976 and 

65/22 of 6 December 2010, in which it recommended the use 

of the Arbitration Rules of the United Nations Commission on 

International Trade Law, 1 

Bearing in mind that the Arbitration Rules are widely used 

for the settlement of treaty-based investor-State disputes, 

Recognizing the need for provisions on transparency in the 

settlement of such treaty-based investor-State disputes to take 

account of the public interest involved in such arbitrations, 

Believing that rules on transparency in treaty-based investorState arbitration would contribute significantly to the establishment of a harmonized legal framework for a fair and efficient 

1

0fficial Records of the General Assembly. Thirty-first Session, 

Supplement No. 17 (A/3!/17), chap. V, sect. C; and ibid., Sixty-fifth 

Session, Supplement No. 17 (A/65/17), chap. III and annex I. 
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settlement of international investment disputes, increase transparency and accountability and promote good govemance, 

Noting that the Commission, at its forty-sixth session, 

adopted the Rules on Transparency in Treaty-based InvestorState Arbitration2 and amended the Arbitration Rules as revised 

in 2010 to include, in a new article 1, paragraph 4, a reference 

to the Rules on Transparency/ 

Noting also that the Rules on Transparency are available 

for use in investor-State arbitrations initiated under rules other 

than the Arbitration Rules or in ad hoc proceedings, 

Noting further that the preparation of the Rules on 

Transparency was the subject of due deliberation in the 

Commission and that they benefited from consultations with 

Govemments and interested intergovemmental and intemational 

non-governmental organizations, 

l. Expresses its appreciation to the United Nations 

Commission on International Trade Law for having prepared 

and adopted the Rules on Transparency in Treaty-based 

Investor-State Arbitration2 and the Arbitration Rules (as revised 

in 2010, with new article 1, paragraph 4, as adopted in 2013),3 

as annexed to the report of the Commission on the work of its 

forty-sixth session;4 

2. Requests the Secretary-General to publish, including 

electronically, and disseminate broadly the text of the Rules on 

Transparency, both together with the Arbitration Rules (as 

revised in 2010, with new article 1, paragraph 4, as adopted in 

2013) and as a stand-alone text, and to transmit them to 

Governments and organizations interested in the field of dispute 

settlement; 

3. Recommends the use of the Rules on Transparency in 

relation to the settlement of investment disputes within the 

scope of their application as defined in article 1 of the Rules, 

and invites Member States that have chosen to include the Rules 

in their treaties to inform the Commission accordingly; 

4. Also recommends that, subject to any provision in relevant treaties that may require a higher degree of transparency 

2 Ibid., Sixty-eighth Session, Supplement No. 17 (A/68/17), 

chap. III and annex I. 3 Ibid., chap. III and annex II. 

'Official Records of the General Assembly, Sixty~eighth Session, Supplement No. 17 (A/68/17). 

2 
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than that provided in the Rules on Transparency, the Rules be 

applied through appropriate mechanisms to investor-State arbitration initiated pursuant to treaties providing for the protection 

of investors or investments concluded before the date of coming 

into effect of the Rules, to the extent that such application is 

consistent with those treaties. 

3 

68th plenary meeting 

16 December 2013 
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UN CITRAL Rules on 'fransparency in 

Treaty-based Investor-State Arbitration 

Article 1. Scope of application 

Applicability of the Rules 

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 multilateral treaty, the State of the claimant and the respondent State, 

have agreed after 1 April 2014 to their application. 

Application of the Rules 

3. In any arbitration in which the Rules on Transparency 

apply pursuant to a treaty or to an agreement by the Parties to 

that treaty: 

(a) The disputing parties may not derogate from these 

Rules, by agreement or otherwise, unless permitted to do so by 

the treaty; 

*For the purposes of the Rules on Tt'ansparency, a "treaty" shall be understood broadly as encompassing any bilateral or multilateral treaty that contains 

provisions on the protection of investments or investors and a right for investors 

to resort to arbitration against Patties to the treaty, including any treaty commonly 

refetTed to as a free trade agreement, economic integration agreement, trade and 

investment framework or cooperation agreement, or bilateral investment treaty. 

**For the purposes of the Rules on Transparency, any reference to a "Party 

to the treaty" or a "State" includes, for example, a regional economic integration 

organization where it is a Patty to the treaty. 

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(b) The arbitral tribunal shall have the power, besides its 

discretionary authority under certain provisions of these Rules, 

to adapt the requirements of any specific provision of these 

Rules to the particular circumstances of the case, after consultation with the disputing parties, if such adaptation is necessary 

to conduct the arbitration in a practical manner and is consistent 

with the transparency objective of these Rules. 

Discretion and authority of the arbitral tribunal 

4. Where the Rules on Transparency provide for the arbitral 

tribunal to exercise discretion, the arbitral tribunal in exercising 

such discretion shall take into account: 

(a) The public interest in transparency in treaty-based 

investor-State arbitration and in the particular arbitral proceedings; and 

(b) The disputing parties' interest in a fair and efficient 

resolution of their dispute. 

5. These Rules shall not affect any authority that the arbitral 

tribunal may otherwise have under the UNCITRAL Arbitration 

Rules to conduct the arbitration in such a manner as to promote 

transparency, for example by accepting submissions from third 

persons. 

6. In the presence of any conduct, measure or other action 

having the effect of wholly undermining the transparency objectives of these Rules, the arbitral tribunal shall ensure that those 

objectives prevail. 

Applicable instrument in case of conflict 

7. Where the Rules on Transparency apply, they shall supplement any applicable arbitration rules. Where there is a conflict between the Rules on Transparency and the applicable 

arbitration rules, the Rules on Transparency shall prevail. Notwithstanding any provision in these Rules, where there is a 

conflict between the Rules on Transparency and the treaty, the 

provisions of the treaty shall prevail. 

8. Where any of these Rules is in conflict with a provision 

of the law applicable to the arbitration from which the disputing 

parties cannot derogate, that provision shall prevail. 

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Application in non-UNCITRAL arbitrations 

9. These Rules are available for use in investor-State arbitrations initiated under rules other than the UNCITRAL 

Arbitration Rules or in ad hoc proceedings. 

Article 2. Publication of information at the 

commencement of arbitral proceedings 

Once the notice of arbitration has been received by the respondent, each of the disputing parties shall promptly communicate 

a copy of the notice of arbitration to the repository referred to 

under article 8. Upon receipt of the notice of arbitration from 

the respondent, or upon receipt of the notice of arbitration and 

a record of its transmission to the respondent, the repository 

shall promptly make available to the public information 

regarding the name of the disputing parties, the economic 

sector involved and the treaty under which the claim is 

being made. 

Article 3. Publication of documents 

1. Subject to article 7, the following documents shall be made 

available to the public: the notice of arbitration, the response 

to the notice of arbitration, the statement of claim, the statement 

of defence and any further written statements or written submissions by any disputing party; a table listing all exhibits to 

the aforesaid documents and to expert reports and witness 

statements, if such table has been prepared for the proceedings, 

but not the exhibits themselves; any written submissions by the 

non-disputing Party (or Parties) to the treaty and by third 

persons, transcripts of hearings, where available; and orders, 

decisions and awards of the arbitral tribunal. 

2. Subject to article 7, expert reports and witness statements, 

exclusive of the exhibits thereto, shall be made available to the 

public, upon request by any person to the arbitral tribunal. 

3. Subject to article 7, the arbitral tribunal may decide, on 

its own initiative or upon request from any person, and after 

consultation with the disputing parties, whether and how to 

make available exhibits and any other documents provided to, 

or issued by, the arbitral tribunal not falling within paragraphs 1 

or 2 above. This may include, for example, making such documents available at a specified site. 

7 
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4. The documents to be made available to the public pursuant 

to paragraphs I and 2 shall be communicated by the arbitral 

tribunal to the repository referred to under article 8 as soon as 

possible, subject to any relevant arrangements or time limits for 

the protection of confidential or protected information prescribed under article 7. The documents to be made available 

pursuant to paragraph 3 may be communicated by the arbitral 

tribunal to the repository referred to under article 8 as they 

become available and, if applicable, in a redacted form in 

accordance with article 7. The repository shall make all documents available in a timely manner, in the form and in the 

language in which it receives them. 

5. A person granted access to documents under paragraph 3 

shall bear any administrative costs of making those documents 

available to that person, such as the costs of photocopying or 

shipping documents to that person, but not the costs of making 

those documents available to the public through the 

repository. 

Article 4. Submission by a third person 

I. After consultation with the disputing parties, the arbitral tribunal may allow a person that is not a disputing party, 

and not a non-disputing Party to the treaty ("third person(s)"), 

to file a written submission with the arbitral tribunal regarding 

a matter within the scope of the dispute. 

2. A third person wishing to make a submission shall 

apply to the arbitral tribunal, and shall, in a concise written 

statement, which is in a language of the arbitration and complies 

with any page limits set by the arbitral tribunal: 

(a) Describe the third person, including, where relevant, 

its membership and legal status (e.g., trade association or other 

non-governmental organization), its general objectives, the 

nature of its activities and any parent organization (including 

any organization that directly or indirectly controls the third 

person); 

(b) Disclose any connection, direct or indirect, which the 

third person has with any disputing party; 

(c) Provide information on any government, person or 

organization that has provided to the third person (i) any financial or other assistance in preparing the submission; or (ii) 

substantial assistance in either of the two years preceding the 

application by the third person under this article (e.g. funding 

around 20 per cent of its overall operations annually); 

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(d) Describe the nature of the interest that the third person 

has in the arbitration; and 

(e) Identify the specific issues of fact or Jaw in the arbitration that the third person wishes to address in its written 

submission. 

3. In determining whether to allow such a submission, the 

arbitral tribunal shall take into consideration, among other 

factors it detetmines to be relevant: 

(a) Whether the third person has a significant interest in 

the arbitral proceedings; and 

(b) The extent to which the submission would assist the 

arbitral tribunal in the determination of a factual or legal issue 

related to the arbitral proceedings by btinging a perspective, 

particular knowledge or insight that is different from that of the 

disputing parties. 

4. The submission filed by the third person shall: 

(a) Be dated and signed by the person filing the submission on behalf of the third person; 

(b) Be concise, and in no case longer than as authorized 

by the arbitral tribunal; 

(c) Set out a precise statement of the third person's position on issues; and 

(d) Address only matters within the scope of the dispute. 

5. The arbitral tribunal shall ensure that any submission does 

not disrupt or unduly burden the arbitral proceedings, or unfairly 

prejudice any disputing party. 

6. The arbitral tribunal shall ensure that the disputing parties 

are given a reasonable opportunity to present their observations 

on any submission by the third person. 

Article 5. Submission by a non-disputing Party 

to the treaty 

1. The arbitral tribunal shall, subject to paragraph 4, allow, 

or, after consultation with the disputing parties, may invite, 

submissions on issues of treaty interpretation from a nondisputing Party to the treaty. 

2. The arbitral tribunal, after consultation with the disputing 

parties, may allow submissions on further matters within the 

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scope of the dispute from a non-disputing Party to the treaty. 

In determining whether to allow such submissions, the arbitral 

tribunal shall take into consideration, among other factors it 

determines to be relevant, the factors referred to in article 4, 

paragraph 3, and, for greater certainty, the need to avoid submissions which would support the claim of the investor in a 

manner tantamount to diplomatic protection. 

3. The arbitral tribunal shall not draw any inference from the 

absence of any submission or response to any invitation pursuant 

to paragraphs 1 or 2. 

4. The arbitral tribunal shall ensure that any submission does 

not disrupt or unduly burden the arbitral proceedings, or unfairly 

prejudice any disputing party. 

5. The arbitral tribunal shall ensure that the disputing ,parties 

are given a reasonable opportunity to present their observations 

on any submission by a non-disputing Party to the treaty. 

Article 6. Hearings 

l. Subject to article 6, paragraphs 2 and 3, hearings for the 

presentation of evidence or for oral argument ("hearings") shall 

be public. 

2. Where there is a need to protect confidential information 

or the integrity of the arbitral process pursuant to article 7, the 

arbitral tribunal shall make arrangements to hold in private that 

part of the hearing requiring such protection. 

3. The arbitral tribunal shall make logistical arrangements to 

facilitate the public access to hearings (including where appropriate by organizing attendance through video links or such 

other means as it deems appropriate). However, the arbitral 

tribunal may, after consultation with the disputing parties, 

decide to hold all or part of the hearings in private where this 

becomes necessary for logistical reasons, such as when the circumstances render any original arrangement for public access 

to a hearing infeasible. 

Article 7. Exceptions to transparency 

Confidential or protected information 

1. Confidential or protected information, as defined in paragraph 2 and as identified pursuant to the arrangements referred 

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to in paragraphs 3 and 4, shall not be made available to the 

public pursuant to articles 2 to 6. 

2. Confidential or protected information consists of: 

(a) Confidential business information; 

(b) Information that is protected against being made 

available to the public under the treaty; 

(c) Information that is protected against being made 

available to the public, in the case of the information of the 

respondent State, under the law of the respondent State, and in 

the case of other information, under any law or rules determined 

by the arbitral tribunal to be applicable to the disclosure of such 

information; or 

(d) Information the disclosure of which would impede 

law enforcement. 

3. The arbitral tribunal, after consultation with the disputing 

parties, shall make arrangements to prevent any confidential or 

protected information from being made available to the public, 

including by putting in place, as appropriate: 

(a) Time limits in which a disputing party, non-disputing 

Party to the treaty or third person shall give notice that it seeks 

protection for such information in documents; 

(b) Procedures for the prompt designation and redaction 

of the particular confidential or protected infom1ation in such 

documents; and 

(c) Procedures for holding hearings in private to the 

extent required by article 6, paragraph 2. 

Any determination as to whether information is confidential or 

protected shall be made by the arbitral tribunal after consultation with the disputing parties. 

4. Where the arbitral tribunal determines that information 

should not be redacted from a document, or that a document 

should not be prevented from being made available to the 

public, any disputing party, non-disputing Party to the treaty or 

third person that voluntarily introduced the document into the 

record shall be permitted to withdraw all or part of the document from the record of the arbitral proceedings. 

5. Nothing in these Rules requires a respondent State to make 

available to the public information the disclosure of which it 

considers to be contrary to its essential security interests. 

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Integrity of the arbitral process 

6. Information shall not be made available to the public pursuant to articles 2 to 6 where the information, if made available 

to the public, would jeopardize the integrity of the arbitral 

process as detennined pursuant to paragraph 7. 

7. The arbitral tribunal may, on its own initiative or upon the 

application of a disputing party, after consultation with the 

disputing parties where practicable, take appropriate measures 

to restrain or delay the publication of information where such 

publication would jeopardize the integrity of the arbitral process 

because it could hamper the collection or production of evidence, lead to the intimidation of witnesses, lawyers acting for 

disputing parties or members of the arbitral tribunal, or in 

comparably exceptional circumstances. 

Article 8. Repository of published information 

The repository of published information under the Rules on 

Transparency shall be the Secretary-General of the United 

Nations or an institution named by UNCITRAL. 

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