Video post in “Observations on Arbitration” series: “The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration”

In the “Observations on Arbitration” series, Christian Leathley considers the impact of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.

 

 

For further information, please contact Christian Leathley, Partner, Hannah Ambrose, Professional Support Consultant or Vanessa Naish, Professional Support Consultant.

Christian Leathley
Christian Leathley
Partner
+44 20 7466 2532
Hannah Ambrose
Hannah Ambrose
Professional Support Consultant
+44 20 7466 7585
Vanessa Naish
Vanessa Naish
Professional Support Consultant
+44 20 7466 2112

Long-awaited EU-Canada trade agreement agreed – a blueprint to set the standard for future investment protection?

On Friday 26 September, after five years of negotiations, the EU and Canada agreed in principle to a text for the Comprehensive Economic Trade Agreement (CETA). It is certainly comprehensive, running to 1,500 pages. It is the first such agreement signed by the EU as part of its policy (since the Lisbon Treaty) of assuming competence for trade and investment from the individual Member States. Its contents have therefore been keenly anticipated as an indication of the tone of future agreements, particularly as regards investment protection and investor-state dispute resolution (ISDS) contained in Chapter X.

CETA’s provisions are comprehensive as regards both of these areas, but with significant caveats, largely mirroring the drafts that have so far been made public in the EU-US forthcoming agreement in the Transatlantic Trade and Investment Partnership (TTIP) (see our earlier post on the TTIP consultation here).

As its Preamble sets out, the agreement expressly recognizes “that the protection of investments… stimulates mutually beneficial business activity“. At the same time, it stresses principles of governmental autonomy (including enforcement of labour and environmental laws) which can in some circumstances limit the rights of the investor. It also points out the responsibility of businesses to respect “internationally recognized standards of corporate social responsibility“, bringing these soft law norms into the ambit of the agreement.

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A further step towards transparency: UNCITRAL approves Draft Convention on Transparency in Treaty-Based Investor-State Arbitration

On 9th July 2014, at its 47th session, the United Nations Commission on International Trade Law (UNCITRAL) approved a Draft Convention on Transparency in Treaty-Based Investor-State Arbitration (the Convention). The main aim of the Convention is to extend the application of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the Transparency Rules). As previously reported by us, the Transparency Rules were introduced to try and increase transparency in investor-state arbitrations by allowing for greater public access to documents and hearings and for interested parties to make submissions to the tribunal.

If adopted by the UN and embraced by states, the Convention has the potential to bring about a significant change to the resolution of investor-state disputes, impacting states and investors alike.

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