As yet another proof of the principal standing of transparency in investment arbitration is the novel endeavour of the UNCITRAL to introduce a model legal framework including rules for more open investor-state arbitration in the “new” revised rules from 2013. Nevertheless, since the rules are relatively fresh, the question still remains whether the rules actually will change the scene or whether they become a legal instrument of which the goals only remain at an illusory level.
The UNCITRAL Arbitration Rules today come in three different versions; the original rules from 1976, the revised rules from 2010 and the “new” revised rules from 2013. Article 1 paragraph 4 of the new UNCITRAL Arbitration Rules from 2013 incorporates the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration248 (the UNCITRAL Transparency Rules), which like the new Arbitration Rules also came into effect 1 April 2014. The new rules from 2013 are as such the same as the previous rules with the addition of a specific inclusion of the UNCITRAL Transparency Rules and with the aim of clarifying the application of these. The main goal of the UNCITRAL Transparency Rules is to enhance transparency within investor-state arbitration and they are a result of nearly three years of negotiations by the Working Group II on Arbitration and Conciliation. The reformed rules are a ground breaking step towards a more open institution of investor-state arbitration by taking into account the interests of the public in a more formal and official way. Article 4 in the UNCITRAL Transparency Rules explicitly confirms that investment tribunals can accept amicus curiae submissions. The article also describes in detail under what conditions third-party submissions can be accepted.
As noted above, the UNCITRAL Arbitration Rules are often pointed out as the relevant procedural rules for the conduct of investor-state arbitrations and the Transparency Rules will apply to the agreements referring to these rules that have been entered into as of 1 April 2014. Alternatively, the Transparency Rules will be applicable in the case the agreement is concluded earlier than 1 April 2014 if the parties have explicitly “opted in” for the use of these new rules.249 The first case where the Transparency Rules are applied is the pending Iberdrola v. Bolivia case conducted under the auspices of the PCA.250 Another recent case applying the Transparency Rules is the ICSID case BSG Resources Limited v.
248 Article 1 paragraph 4 states: “For investor-State arbitration initiated pursuant to a treaty
providing for the protection of investments or investors, these Rules include the UNCITRAL Rules on Transparency in Treaty- based Investor-State Arbitration (“Rules on Transparency”), subject to article 1 of the Rules on Transparency.”
249 Mauritius Convention, adopted 10 December 2014 with a signing ceremony opened 17 March
2015 in Port Louis, Mauritius, is an instrument aiming at the facilitation of states to agree upon the usage of the Transparency Rules, though it has not yet come into force. The idea with the
Convention is that upon signature the UNCITRAL Transparency Rules will even be applicable on disputes arising out of already existing investment treaties between states (i.e treaties that are signed before 1 April 2014, thus before the 2013 UNCITRAL Arbitration Rules came into effect), independent of the arbitration rules applicable to the investment protection dispute. According to article 7 (1), the Convention is up for signature for ”any (a) state; or (b) regional economic integration organization that is constituted by States and is a contracting party to an investment treaty”, this thus including e.g. the EU.
Republic of Guinea.251 Even though the amended UNCITRAL Arbitration Rules and the Transparency Rules are steps towards from transparency point of view there are still some speed bumps in the way of an efficient application of the Transparency Rules since states are allowed to make reservations to the application of these rules.252
In addition to the new UNCITRAL Arbitration Rule, another example that can be mentioned is the draft investment arbitration rules of the Singapore International Arbitration Center (SIAC Draft IA Rules),253 which aim at addressing timely matters and at providing for a modern set of arbitration rules applicable to investor-state.254 Rule 28.2 in the SIAC Draft IA Rules address amicus curiae submissions. The rules look very much like the ICSID Arbitration Rules and the UNCITRAL Transparency Rules when it comes to third party submissions with the exception that instead of “significant interest” the term “sufficient interest” is used for the determination of whether or not the tribunal should allow third party submissions. It would in other words suffice for an amicus wishing to intervene to have a “sufficient interest” in the arbitration under the application of the SIAC Draft IA Rules. Consequently the threshold to accept third party submissions would be lowered. What is also novel about the SIAC Draft IA Rules is that they are a truly hybrid set of rules, since the rules for investment arbitrations would be separate from the rules for commercial arbitrations, which is not the case in many other arbitration centres. The idea behind the SIAC Draft IA Rules take into account the particular character and special needs of investment arbitration and they provide as a practical example of how the distinction between commercial arbitration and investment arbitration, including the desire for greater transparency, is taken into consideration.