CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM… its basic features, while being complemented with an appeal. Because amending the ICSID Convention requires unanimity of the (now over 150) Contracting States, it would be unrealistic to pursue an amendment process. For those ICSID State parties wishing to embrace the reform, the Opt-in Convention would constitute an inter se agreement modifying the ICSID Convention as between those States. This possibility is contemplated under Article 41 of the VCLT, which allows State parties to multilateral treaties to “contract out” of the treaty under certain conditions, and create a special regime applicable in their mutual relations. Assuming that the conditions set out in Article 41 VCLT reflect customary international law, it will have to be considered whether those conditions would be met in case of the introduction of an AM for ICSID awards for certain ICSID Contracting States only. As a final matter, States could consider whether there should be room for limitations to the operation of MFN clauses on the application of the new dispute resolution mechanisms. The issue was discussed during the preparatory works of the Mauritius Convention, 47 as a result of which the Convention includes the following provision: “Most favoured nation provision in an investment treaty. 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 ”. 48 Finally, given the changes in the rules, it will be important to ensure that the modifications to the IIA network are clear. The modifications have to be clear and easily accessible. For instance, an Opt-in Convention prepared by the UNCITRAL and adopted by the UN General Assembly would mean that a publicly available list of ratifications, reservations and declarations would be made available by the UN Treaty Section. All the IIAs affected could also be listed, as is currently done by the UNCITRAL in relation to IIAs that refer to the Transparency Rules. 49

47 See in particular UNCITRAL (2014), Report of Working Group II (Arbitration and Conciliation) on the work of its sixtieth session, Records of the UNCITRAL, 47 th session, UN Doc. A/CN.9/799 (13 February 2014), paras. 40-46, 88-96. 48 Mauritius Convention, Article 1(5). 49 See http://www.uncitral.org/uncitral/en/uncitral texts/arbitration/2014Transparency_Rules_status.html (last visited on 30 May 2016).

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