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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).