Transparency is one of the focal points in international investment arbitration. Its importance stems from the fact that investment treaty claims often concern and decide key public policy issues; thus, providing transparency in investor-state dispute settlement would develop public awareness and participation in disputes that deal with topics of public importance. For this reason, there is an increasing demand that the proceedings should be accessible and that interested third parties should be able to participate in them.

In 2014, the UNCITRAL Transparency Rules entered into force, providing for increased transparency in investor-state proceedings that are conducted under the UNCITRAL Arbitration Rules. The Rules include provisions on the publication of documents, open hearings and the possibility for non-disputing parties to make submissions. However, the Rules only apply automatically in disputes arising out of treaties concluded on or after 1 April 2014. For arbitrations that commenced before that date, the Rules apply only if the parties to the relevant treaty, or the parties to the arbitration, have agreed to their application.

Aware that the Rules would harmonise the settlement of international investment disputes, and to circumvent the issue of the scope of application of the UNCITRAL Transparency Rules, the UN General Assembly adopted in December 2014 the UN Convention on Transparency in Treaty-Based Investor-State Arbitration (the Mauritius Convention on Transparency). The Convention was opened for signature on 17 March 2015 and will enter into force six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.

The aim of the Mauritius Convention is to extend the scope of application of the UNICTRAL Rules on Transparency to, eventually, the whole treaty-based international investment regime. Therefore, the new Convention will make the UNCITRAL Transparency Rules applicable to all treaty-based investor-state arbitrations, also those brought before April 2014, independently of the applicable arbitration rules, thus establishing transparency as a general principle of international investment law.

Jan-Mar 2016 issue

Association for International Arbitration