CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM… and 5). However, when the UNCITRAL adopted the Transparency Rules, the concern was raised that their significance in practice could be limited. Indeed, the Transparency Rules apply automatically to arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to treaties concluded on or after 1 April 2014 (“subsequent” treaties), unless the parties to such treaty have agreed otherwise. 29 By contrast, they only apply to UNCITRAL arbitrations started pursuant to treaties concluded before 1 April 2014 (“existing” treaties), provided that the parties to such treaty 30 or that the parties to the dispute 31 have agreed to their application. Along this dividing line, it was feared that the outreach of the new transparency rules would be largely limited to subsequent investment treaties. As was noted, “[a]ll claims arising under the existing universe of 3000 treaties [would] continue to be exempt from any transparency requirements unless the disputing parties [were to] agree otherwise or unless the treaties [were] proactively amended by their Contracting State parties to explicitly incorporate the new rules.” The UNCITRAL therefore decided to draft a convention designed to facilitate the application of the Transparency Rules to the roughly 3000 treaties concluded before the adoption of the Transparency Rules. The purpose of this treaty was to “give those States that wished to make the Rules on Transparency applicable to their existing investment treaties an efficient mechanism to do so”. 32 In other words, the treaty was to provide an efficient and flexible mechanism by which States could express their agreement according to Article 1(2) of the Transparency Rules. The Mauritius Convention was adopted by the General Assembly of the United Nations on 10 December 2014. 33 The Convention is applicable to arbitrations between an investor and a State or a regional economic integration organization based on an investment treaty concluded before 1 April 2014 (i.e. the date on which the Transparency Rules became effective). 34 It achieves the “extension” of the Transparency Rules to existing treaties through the interplay between the Convention’s Article 2 (on scope of application) and its Articles 3 and 4 (the admissible reservations to such application). In this sense, the reform initiative contemplated in this paper wishes to take up the “call for multilateral reform” contained in those treaties which envisage, through programmatic language, the possibility of moving from a bilateral to a multilateral architecture. 35 Third, this reform initiative would focus on a discrete part of the 29 Transparency Rules, Article 1(1). 30 Transparency Rules, Article 1(2)(b). In presence of multilateral treaties, it is sufficient that the state of the claimant and the respondent state have reached an agreement to this avail. 31 Transparency Rules, Article 1(2)(a). 32 UN (2013a), para. 127. 33 UN (2014a), United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, General Assembly, 69th session, Resolution A/69/116 (18 December 2014). 34 Transparency Rules, Article 1(1). 35 See CETA, Article 8.29; EU-Vietnam FTA, Article 15. See also TPP, Article 9.22(11); Australia-Korea BIT (2014), Article 11.20.13; Korea-New Zealand FTA (2015), Article 10.26.9; U.S. Model BIT (2012), Article 28(10).

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