A/HRC/29/28
(A/6317, para. 314). In a written submission in support of that mandate, a Member State
observed that the lack of transparency in investor-State arbitration was contrary to the
fundamental principles of good governance and human rights upon which the United
Nations is founded (see A/CN.9/662, para. 20). That work has culminated in two major
texts: (a) the rules on transparency in treaty-based investor-State arbitration, which came
into effect on 1 April 2014; and (b) a convention on transparency28 (the United Nations
Convention on Transparency), which was finalized by the Commission in July 2014 and
opened for signature on 17 March 2015. The Working Group on the issue of human rights
and transnational corporations and other business enterprises welcomes these new
transparency rules.
33.
Both the Guiding Principles and the UNCITRAL work on transparency back
procedural and legal transparency and take a practical approach to achieving that aim. The
new UNCITRAL rules on transparency seek to address a regular concern with investorState dispute settlement cases – namely that their typically confidential and nonparticipatory nature does not allow for involvement by affected stakeholders, or for an
adequate balance between the need for States to ensure that they retain adequate policy and
regulatory ability to protect human rights and provide investor protection, as clarified in
Guiding Principle 9. With the new UNCITRAL rules and the United Nations Convention
on Transparency in Treaty-based Investor-State Arbitration, States have a practical means
to promote good governance and respect for human rights with a broader policy framework
that is aligned with the Guiding Principles. 29
34.
These rules, when they apply, provide a transparent procedural regime under which
investment treaty arbitrations are conducted. They can be used in investor-State arbitrations
initiated under UNCITRAL arbitration rules, as well as under other institutional arbitration
rules or in ad hoc proceedings. States can now incorporate them into investment treaties
concluded on or after 1 April 2014, but for the rules to apply to disputes arising under the
more than 3,000 investment treaties concluded before that date, the States parties to a
treaty, or disputing parties in an investor-State arbitration, would need to agree to apply the
rules under that treaty or to that dispute. This highlights the importance of the Convention
on Transparency, which provides an efficient, multilateral mechanism by which States can
agree, subject to relevant reservations, to apply the rules to all arbitrations arising under
their investment treaties concluded before 1 April 2014. The Working Group welcomes the
rules and considers that an obvious step for States to remedy incoherence between current
modes of investment with norms for good governance and human rights considerations,
including those set out in the Guiding Principles, would be to sign and ratify the
Convention.
35.
The Working Group is pleased to have had the opportunity to engage with
UNCITRAL, including at its forty-seventh session in July 2014, and to note that in the
report of that session the Commission agreed that the UNCITRAL secretariat should
monitor developments in the area of business and human rights, in cooperation with
relevant bodies within the United Nations and beyond and inform the Commission about
developments of relevance to UNCITRAL work (see A/69/17, para. 204).
10
28
A/CN.9/812 and www.uncitral.org/pdf/english/texts/arbitration/transparency-convention/
Transparency-Convention-e.pdf. The Working Group chairperson was invited to speak at the March
2015 signing ceremony.
29
http://blogs.lse.ac.uk/investment-and-human-rights/portfolio-items/transparency-in-investment-treatyarbitration-and-the-un-guiding-principles-on-business-and-human-rights-the-new-uncitral-rules-andconvention-on-transparency/.
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