Rules of Arbitration of the United Nations Commission on International Trade Law

Scope of Application . . . . . . . . . . . . . . . . . 35 Applicability of the Rules. . . . . . . . . . . . . . . . . . 35 Application of the Rules. . . . . . . . . . . . . . . . . . . . 35 Discretion and authority of the arbitral tribunal . . 36 Applicable instrument in case of conflict . . . . . . . 36 Application in arbitrations not subject to the UNCITRAL Arbitration Rules . . . . . . . 37

Publication of information at the beginning of the arbitral proceeding . . . . . . . . . . . . . . . . . 37

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Publication of documents. . . . . . . . . . . . . 37

Submissions presented by third parties . . . . . . . 38

Submissions presented by parties to the treaty that are not parties to the dispute . . . . . . . . . . . . . . . . . 40

Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Exceptions to the transparency standard 41 Confidential or protected information. . . . . . . . . . . 41 Integrity of the arbitral process . . . . . . . . . . . . . . . . 42

Archiving of published information . . . . . 42

Resolution adopted by the General Assembly on 16 December 2013 [on the basis of the report of the Sixth Committee (A/68/462)] 68/109 Rules on Transparency in Treaty-based Investor-State Arbitration and Arbitration Rules (as revised in 2010, with the new article 1, paragraph 4, adopted in 2013) of the United Nations Commission on International Trade Law The General Assembly, Recalling its resolution 2205 (XXI) of 17 December 1966, in which it established the United Nations Commission on International Trade Law and entrusted it with the mandate to promote the progressive harmonization and unification of international commercial law and, in that respect, to take into account the interests of all peoples, in particular those of developing countries, in the general evolution of international trade, Recognizing the value of arbitration as a method for resolving disputes that may arise in the context of international relations and the widespread use of arbitration for resolving disputes between investors and States within the framework of a treaty, Recalling its resolutions 31/98 of 15 December 1976 and 65/22 of 6 December 2010, in which it recommended the use of the Arbitration Rules of the United Nations Commission on International Trade Law1, Bearing in mind that the Arbitration Rules are widely used in the resolution of disputes between investors and States within the framework of a treaty, 1Official Records of the General Assembly, thirty-first session, Supplement No. 17 (A/31/17), chap. V, sect. C; and ibid., sixty-fifth session, Supplement No. 17 (A/65/17), chap. III and annex I.

Recognizing the need for the provisions on transparency in the resolution of such disputes between investors and States within the framework of a treaty to take into account the public interest affected by arbitrations of that kind, Believing that rules on transparency in treaty-based investor-State arbitration would contribute significantly to the establishment of a harmonized legal framework for fairly and efficiently resolving international investment disputes, increasing transparency and accountability and promoting good governance, Noting that the Commission, at its 46th session, adopted the Rules on Transparency in Treaty-based Investor-State Arbitration2 and amended the Arbitration Rules as revised in 2010 to include, in a new article 1, paragraph 4, a reference to the Transparency Rules3, Noting also that the Transparency Rules may be used in investor-State arbitrations instituted pursuant to other provisions than the Arbitration Rules or in special proceedings, Noting further that the preparation of the Transparency Rules was the subject of appropriate deliberations in the Commission and that those deliberations included consultations with governments and with interested international non-governmental and intergovernmental organizations, 1. Expresses its appreciation to the United Nations Commission on International Trade Law for having prepared and adopted the Rules on Transparency in Treaty-based Investor-State Arbitration2 and the Arbitration Rules (as revised in 2010, with the new article 1, paragraph 4, adopted in 2013)3, which appear in the annex to the Commission's report on its work at its 46th session4; 2. Requests the Secretary-General to publish, including through electronic means, and widely disseminate the text of the2Ibid., sixty-eighth session, Supplement No. 17 (A/68/17), chap. III and annex I. 3Ibid., chap. III and annex II. 4Official Records of the General Assembly, sixty-eighth session, Supplement No. 17 (A/68/17).

Transparency Rules, together with the Arbitration Rules (as revised in 2010, with the new

article 1, paragraph 4, adopted in 2013) and as a standalone text, and to transmit them to Governments and to organizations interested in the field of dispute resolution; 3. Recommends the use of the Transparency Rules in the resolution of investment disputes within the scope of application defined in the

of the Rules, and invites Member States that have chosen to include the Rules in their treaties to inform the Commission thereof; 4. Recommends also that, subject to any provision of the relevant treaty that may require a higher degree of transparency than that provided for in the Transparency Rules, the latter be applied through appropriate mechanisms to investor-State arbitrations instituted in accordance with a treaty providing for the protection of investors or investments concluded before the date of entry into force of the Rules, to the extent that such application is compatible with those treaties. 68th plenary session 16 December 2013

*A model arbitration clause for contracts appears in the annex to the Rules. UNCITRAL Arbitration Rules (with the new article 1, paragraph 4, adopted in 2013) Section I Preliminary Provisions Scope of Application*

1. When the parties have agreed that disputes between them arising out of a defined legal relationship, whether contractual or not, shall be referred to arbitration in accordance with the UNCITRAL Arbitration Rules, such disputes shall be settled in accordance with these Rules, subject to such modification as the parties may agree. 2. It is presumed that parties to an arbitration agreement concluded after 15 August 2010 have agreed that their dispute shall be governed by these Rules as in force on the date the arbitration is initiated, unless the parties have agreed that their dispute shall be governed by a particular version of these Rules. That presumption shall not apply when the arbitration agreement was concluded by acceptance after 15 August 2010 of an offer made before that date. 3. These Rules shall govern the arbitration except that where any of its provisions is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail. 4. In the case of arbitrations between investors and States instituted pursuant to a treaty providing for the protection of investments or investors, these Rules shall include the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration ("Transparency Rules"), subject to the provision in article 1 of the Transparency Rules.

Notices and Computation of Periods of Time

1. Any notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission. 2. If a party has designated an address, an electronic address or an office for service of notice on it, or if the arbitral tribunal has authorized service by electronic means, any notice shall be delivered to that party at that address or office, and if so delivered, shall be deemed to have been received. Service by electronic means such as facsimile or electronic mail may only be made to an address that has been designated or authorized for that purpose. 3. In the absence of an address, electronic address or office designated as provided in paragraph 2, any notice: a) If delivered personally to the addressee, is received on the date of delivery; or b) If delivered to the addressee at the addressee's place of business, habitual residence or mailing address, is deemed to have been received on the date when it would be delivered in the ordinary course of business. 4. If, after making reasonable efforts, service cannot be effected in accordance with paragraphs 2 and 3, a notice is deemed to have been received if it is sent to the last-known place of business, habitual residence or mailing address of the addressee, or, if no such place is known, to the addressee's last-known residence, by registered letter or any other means that provides a record of delivery or of an attempt at delivery. 5. A notice is deemed to have been received on the date it is delivered in accordance with paragraphs 2, 3 or 4, or attempted to be delivered in accordance with paragraph 4. A notice transmitted by electronic means is deemed to have been received on the date when it is sent, except that a notice of arbitration is deemed to have been received only on the date when it reaches the addressee's electronic address. 6. For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day of such period is an official holiday or a non-working day at the residence or place of business of the addressee, the period is extended until the first working day following that date. Official holidays or non-working days falling within the period are included in calculating the period. Notice of Arbitration

1. The party or parties initiating recourse to arbitration (hereinafter called the "claimant") shall give written notice of arbitration to the other party or parties (hereinafter called the "respondent"). 2. Arbitration is deemed to be initiated on the date the notice of arbitration is received by the respondent. 3. The notice of arbitration shall include the following information:

• a)

  A request that the dispute be referred to arbitration;

• b)

  The names and contact details of the parties;

• c)

  Identification of the arbitration agreement invoked;

• d)

  Identification of any contract or other legal instrument from which the dispute arises or, in the absence thereof, a brief description of the relevant relationship;

• e)

  A brief description of the claim, an indication of the amount involved, if any, and the remedies sought;

• f)

  The subject-matter of the dispute; and g) A proposal as to the number of arbitrators, language and place of arbitration, if the parties have not previously agreed thereon. 4. The notice of arbitration may also include: a) A proposal concerning the appointment of an appointing authority as envisaged in paragraph 1 of

; b) A proposal concerning the appointment of a sole arbitrator as envisaged in paragraph 1 of article 8; c) A notice concerning the appointment of an arbitrator as envisaged in article 9 or article 10. 5. The constitution of the arbitral tribunal shall not be hindered by any controversy with respect to the sufficiency of the information set out in the notice of arbitration, which shall be finally resolved by the arbitral tribunal. Reply to the Notice of Arbitration

1. Within 30 days of receipt of the notice of arbitration, the respondent shall communicate its response to the notice of arbitration to the claimant in writing, which response shall contain the following information:

• a)

  The name and contact details of each respondent;

• b)

  Its response to the information set out in the notice of arbitration in accordance with articles 3, paragraphs 3(c) to (g). 2. The response to the notice of arbitration may also include:

  • a)

    Any objection that the respondent wishes to raise concerning the competence of the arbitral tribunal to be constituted;

  • b)

    A proposal concerning the appointment of an appointing authority as envisaged in paragraph 1 of

; c) A proposal regarding the appointment of a sole arbitrator in accordance with the provisions of paragraph 1 of Article 8; d) Notification regarding the appointment of an arbitrator in accordance with Article 9 or Article 10; e) A brief description of any counterclaim to the claim to be presented or any claim to be asserted for purposes of set-off, also indicating, where appropriate, the sums claimed and the subject matter or object of the claim; f) A notice of arbitration in accordance with Article 3 in the event that the respondent presents a claim against a party to the arbitration agreement who is not the claimant. 3. The constitution of the arbitral tribunal shall not be hindered by the fact that the respondent does not respond to the notice of arbitration, or by the incomplete or late response that the respondent gives to such notification, which shall ultimately be resolved by the arbitral tribunal.

Each party may be represented or assisted by the persons of its choice. The names and addresses of such persons shall be communicated to the other parties and to the arbitral tribunal, and the communication shall specify whether the designation of such persons is made for purposes of representation or assistance. When a person is to act as a representative of a party, the arbitral tribunal may require, at any time, either on its own initiative or at the request of a party, that proof of the authority conferred on the representative be furnished in such form as the arbitral tribunal shall deem appropriate. Appointing Authority and Nominating Authority

1. Unless the parties have already selected a nominating authority, either party may propose, at any time, the name or names of one or more institutions or persons, including the Secretary-General of the Permanent Court of Arbitration in The Hague ("Secretary-General of the PCA"), for one of them to act as nominating authority. 2. If, 30 days after all parties have received a proposal made in accordance with paragraph 1, the parties have not agreed to designate a nominating authority, either party may request the Secretary-General of the PCA to designate the nominating authority. 3. When this Rules provides for a period during which a party must submit a matter to a nominating authority but such authority has not been determined or designated, that period shall be suspended from the date when a party initiates proceedings for the determination or designation of a nominating authority until such determination or designation occurs. 4. Subject to the provisions of paragraph 4 of Article 41, if the nominating authority refuses to act, or if it does not appoint an arbitrator within 30 days following receipt of a request to do so from a party, or if it fails to act within any other period prescribed by these Rules or if it does not decide on the challenge to an arbitrator within a reasonable period from receipt of a request to do so from a party, either party may request the Secretary-General of the PCA to designate a substitute nominating authority. 5. In discharging the functions assigned to it by these Rules, the nominating authority and the Secretary-General of the PCA may request of any party and of the arbitrators such information as they deem necessary and shall give the parties and, where appropriate, the arbitrators the opportunity to present their views in such manner as they shall consider appropriate. Any communication between a party and the nominating authority or the Secretary-General of the PCA shall also be communicated by the sender to the other parties. 6. When the nominating authority is requested to appoint an arbitrator in accordance with Articles 8, 9, 10 or 14, the party making the request shall send to the nominating authority a copy of the notice of arbitration and, if it exists, a copy of the response to the notice of arbitration. 7. The nominating authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall also have regard to the advisability of appointing an arbitrator of a nationality other than that of the parties.

1. If the parties have not previously agreed on the number of arbitrators and if, within 30 days from the date when the respondent receives the notice of arbitration, the parties have not agreed that there shall be a sole arbitrator, three arbitrators shall be appointed. 2. Notwithstanding the provisions of paragraph 1, if neither party responds to a proposal to appoint a sole arbitrator within the period specified in paragraph 1 and if the party or parties concerned have not appointed a second arbitrator in accordance with Article 9 or Article 10, the nominating authority, at the request of a party, may appoint a sole arbitrator in accordance with the procedure set forth in paragraph 2 of Article 8, provided that it determines that, in view of the circumstances of the case, this solution is the most appropriate.

1. If the parties have agreed that a sole arbitrator shall be appointed and if, within 30 days following receipt by all parties of the proposal to make such appointment, the parties have not agreed on the appointment, the sole arbitrator shall be appointed, at the request of a party, by the nominating authority. 2. The nominating authority shall make the appointment as soon as possible. In making the appointment, the nominating authority shall use the following list procedure, unless the parties agree that the list procedure shall not be used, or unless the nominating authority determines, in its discretion, that the list procedure is not appropriate for the case:

• a)

  The nominating authority shall submit to each party an identical list containing at least three names;

• b)

  Within 15 days following receipt of this list, each party may return the list to the nominating authority after striking out the name or names to which it objects and numbering the remaining names in order of its preference;

• c)

  After the expiration of such period, the nominating authority shall appoint the sole arbitrator from among the persons approved on the lists returned and in accordance with the order of preference indicated by the parties;

• d)

  If for any reason the appointment cannot be made according to this procedure, the nominating authority shall exercise its discretion to appoint the sole arbitrator.

1. If three arbitrators are to be appointed, each party shall appoint one. The two arbitrators thus appointed shall choose the third arbitrator, who shall act as president of the arbitral tribunal. 2. If, within 30 days following receipt of notification of an arbitrator appointed by one party, the other party has not notified the first party of the arbitrator it has appointed, the first party may request the nominating authority to appoint the second arbitrator. 3. If, within 30 days following the appointment of the second arbitrator, the two arbitrators do not agree on the choice of the arbitrator who is to act as president, the president shall be appointed by the nominating authority in accordance with the procedure provided in Article 8 for appointing a sole arbitrator.

1. For purposes of paragraph 1 of Article 9, when three arbitrators are to be appointed and there are multiple claimants or respondents, unless the parties have agreed to use another method for the appointment of the arbitrators, the respective parties shall act jointly, as claimants or respondents, to appoint their respective arbitrator. 2. If the parties have agreed that the tribunal shall be composed of a number of arbitrators other than one or three, the arbitrators shall be appointed by such method as the parties have agreed. 3. In the event that the constitution of the arbitral tribunal does not take place in accordance with these Rules, the nominating authority, at the request of any party, shall constitute the arbitral tribunal and, in doing so, may revoke any appointment already made and appoint or reappoint each of the arbitrators and designate one to act as president.

When a person is approached in connection with his or her possible appointment as an arbitrator, that person shall disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. From the time of appointment and throughout the arbitral proceedings, an arbitrator shall without delay disclose any such circumstances to the parties and to the other arbitrators, unless they have already been informed of them.

1. An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. 2. A party may not challenge an arbitrator appointed by that party, or in whose appointment that party has participated, except for reasons of which the party becomes aware after the appointment has been made. 3. If an arbitrator fails or is unable to perform his or her functions, or for other reasons does not act without undue delay, the procedure in respect of the challenge of an arbitrator as provided in Article 13 shall apply.

1. A party wishing to challenge an arbitrator shall send notice of its challenge within 15 days after it has been notified of the appointment of the challenged arbitrator, or within 15 days after it has become aware of any circumstance described in Articles 11 and 12. 2. The notice of challenge shall be communicated to all other parties and to the challenged arbitrator and to the other members of the arbitral tribunal. The notice shall be in writing and shall state the reasons for the challenge. 3. When an arbitrator has been challenged by a party, the other parties may agree to the challenge. An arbitrator may also, after being challenged, withdraw from office. In neither case shall this imply acceptance of the validity of the reasons for the challenge. 4. If, within 15 days from notification of the challenge, all other parties do not agree to the challenge or the challenged arbitrator does not withdraw, the party making the challenge may elect to pursue it. In that event, it may, within 30 days from the date of notification of the challenge, request that the nominating authority decide on the challenge.

1. Subject to the provisions of paragraph 2, in the event that an arbitrator needs to be replaced at any stage of the arbitration, a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided in Articles 8 to 11, that was applicable to the appointment or choice of the arbitrator being replaced. This procedure shall apply even if the original appointment or choice of the arbitrator being replaced was not in accordance with such procedure. 2. If, at the request of a party, the nominating authority determines that, in view of the exceptional circumstances of the case, it would be justified to deprive a party of its right to appoint the substitute arbitrator, the nominating authority may, after having given a reasonable opportunity to the parties and to the other arbitrators to express their views, either: a) appoint the substitute arbitrator; or b) if the circumstances so warrant, particularly if the challenge occurs after the closure of the hearings, authorize the other arbitrators to continue the arbitration and make any award or other decision.

If an arbitrator is replaced, the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions, unless the arbitral tribunal decides otherwise.

Except in cases of intentional misfeasance, to the maximum extent permitted by the applicable law, the parties waive any claim against the arbitrators, the appointing authority and any person appointed by the arbitral tribunal on account of any act or omission in connection with the arbitration.

1. Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and each party is given a reasonable opportunity, at any stage of the proceedings, to present its case. In conducting the proceedings, the arbitral tribunal shall endeavor to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' dispute. 2. As soon as it is constituted and after inviting the parties to express their views, the arbitral tribunal shall establish the procedural timetable. The arbitral tribunal may, at any time, after inviting the parties to express their views, extend or shorten any period prescribed by these Rules or agreed by the parties. 3. If either party so requests at an appropriate stage of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence or for oral argument. In the absence of such a request, the arbitral tribunal shall determine whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other materials submitted by the parties. 4. All communications by a party to the arbitral tribunal shall be communicated by that party to the other parties. Such communications shall be made at the same time to all parties, unless the arbitral tribunal directs otherwise, provided that it is authorized to do so by the applicable law. 5. The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as parties, provided that such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after hearing the parties and the person to be joined, that joinder should not be permitted because it would result in prejudice to one of them. The arbitral tribunal may issue one or more awards with respect to all of the parties to the arbitration.

1. If the parties have not previously agreed on the seat of the arbitration, the seat shall be determined by the arbitral tribunal, having regard to the circumstances of the case. The award shall be deemed to be made at the seat of the arbitration. 2. The arbitral tribunal may meet at any place it deems appropriate for its deliberations. Unless the parties have agreed otherwise, the arbitral tribunal may also meet at any place it deems appropriate for hearings or for other purposes.

1. Subject to any agreement between the parties, the arbitral tribunal shall determine without delay after its appointment the language or languages to be used in the proceedings. That determination shall apply to the statement of claim, the statement of defense and any other written submission and, if hearings are held, to the language or languages to be used in those hearings. 2. The arbitral tribunal may order that any documents annexed to the statement of claim or the statement of defense, and any documents or other instruments submitted in the original language during the proceedings, be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal. Statement of Claim

1. The claimant shall communicate in writing its statement of claim to the respondent and to each of the arbitrators within such period of time as shall be determined by the arbitral tribunal. The claimant may elect to treat its notice of arbitration referred to in article 4 as constituting its statement of claim provided that the notice of arbitration also complies with the requirements set forth in paragraphs 2 to 4 of this article. 2. The statement of claim shall include the following particulars:

• a)

  The name and contact details of the parties;

• b)

  A statement of the facts supporting the claim;

• c)

  The points at issue;

• d)

  The relief or remedy sought;

• e)

  The legal grounds or arguments supporting the claim. 3. The statement of claim shall be accompanied by a copy of any contract or other legal instrument out of or in relation to which the dispute arises, as well as the arbitration agreement. 4. The statement of claim shall be accompanied, as far as possible, by all documents and other evidence relied upon by the claimant, or shall contain references to them. Statement of Defense

constitutes its statement of claim, provided that such notice of arbitration also complies with the requirements set forth in paragraphs 2 to 4 of this article. 2. The statement of claim shall include the following particulars:

• a)

  The name and contact details of the parties;

• b)

  A statement of the facts supporting the claim;

• c)

  The points at issue;

• d)

  The relief or remedy sought;

• e)

  The legal grounds or arguments supporting the claim. 3. The statement of claim shall be accompanied by a copy of any contract or other legal instrument out of or in relation to which the dispute arises, as well as the arbitration agreement. 4. The statement of claim shall be accompanied, as far as possible, by all documents and other evidence relied upon by the claimant, or shall contain references to them. Statement of Defense

1. The respondent shall communicate in writing its statement of defense to the claimant and to each of the arbitrators within such period of time as shall be determined by the arbitral tribunal. The respondent may elect to treat its response to the notice of arbitration as referred to in article 4 as constituting its statement of defense, provided that the response to the notice of arbitration also complies with the requirements of paragraph 2 of this article. 2. In its statement of defense, the respondent shall respond to the particulars referred to in paragraphs b) to e) of the statement of claim (paragraph 2 of article 20). The statement of defense shall be accompanied, as far as possible, by all documents and other evidence relied upon by the respondent, or shall contain references to them. 3. In its statement of defense or at a later stage in the proceedings if the arbitral tribunal decides that circumstances justify the delay, the respondent may make a counterclaim or rely on a claim for set-off, provided that the tribunal has jurisdiction to decide upon them. 4. The provisions of paragraphs 2 to 4 of article 20 shall apply to the counterclaim as well as to any claim made pursuant to subparagraph f) of paragraph 2 of article 4 or relied upon for set-off. Amendments to Claims or Defenses

During the course of the proceedings, a party may amend or supplement its claim or defense, including the formulation of a counterclaim or a claim for set-off, unless the arbitral tribunal considers that the amendment or supplement should not be permitted by reason of the undue delay in making it, the prejudice to the other party or any other circumstances. However, a claim or defense, including a counterclaim or a claim for set-off, may not be amended or supplemented in such a manner that the amended or supplemented claim or defense falls outside the jurisdiction of the arbitral tribunal. Objection to the Jurisdiction of the Arbitral Tribunal

1. The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. 2. The plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defense or, with respect to a counterclaim or a claim for set-off, in the reply to that counterclaim or claim for set-off. The parties are not precluded from raising such a plea by the fact that they have appointed an arbitrator or participated in its appointment. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. In any event, the arbitral tribunal may admit a later plea if it considers the delay justified. 3. The arbitral tribunal may rule on pleas referred to in paragraph 2 as a preliminary question or in an award on the merits. The arbitral tribunal may proceed with the arbitration and make an award, notwithstanding any objection to its jurisdiction pending before a court. Other Written Statements

The arbitral tribunal shall decide whether the parties shall submit written statements in addition to the statement of claim and statement of defense and, if so, shall fix the periods of time for submission of such statements. Periods of Time

The periods of time fixed by the arbitral tribunal for the submission of written statements (including the statement of claim and statement of defense) shall not exceed 45 days. However, the arbitral tribunal may extend the periods if it considers that an extension is justified. Interim Measures of Protection

1. The arbitral tribunal may, at the request of a party, grant interim measures of protection. 2. An interim measure of protection is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to, for example:

• a)

  Maintain or restore the status quo pending determination of the dispute;

• b)

  Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;

• c)

  Provide a means of preserving assets out of which a subsequent award could be satisfied; or d) Preserve evidence that may be relevant and material to the resolution of the dispute. 3. A party requesting an interim measure of protection under subparagraphs a), b) or c) of paragraph 2 shall satisfy the arbitral tribunal that: a) Harm not adequately reparable by an award of damages is likely to result if the measure is not granted, and that such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The arbitral tribunal's determination of the reasonable possibility of success shall not prejudice the arbitral tribunal's subsequent determination on the merits. 4. With respect to a request for an interim measure of protection referred to in subparagraph d) of paragraph 2, the requirements in subparagraphs a) and b) of paragraph 3 shall apply only insofar as the arbitral tribunal considers appropriate. 5. The arbitral tribunal may modify, suspend or terminate any interim measure of protection it has granted, whether at the request of a party or, in exceptional circumstances, on its own motion, provided that it shall give notice to the parties. 6. The arbitral tribunal may require the party requesting an interim measure of protection to provide appropriate security in connection with the measure. 7. The arbitral tribunal may require any party to disclose in a timely fashion any significant change in the circumstances that motivated the request for or the granting of an interim measure of protection. 8. A party requesting an interim measure of protection shall be liable for any costs and damages caused by the measure to any party, if the arbitral tribunal subsequently finds, on the basis of the circumstances of the case, that the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings. 9. A request for interim measures of protection, addressed to a judicial authority by any party, shall not be deemed incompatible with the arbitration agreement or a waiver of that agreement. Taking of Evidence

1. Each party shall bear the burden of proof of the facts relied on to support its claim or defense. 2. Any person may present evidence as a witness, including on matters of fact or expertise, whether or not that person is a party to the arbitration or is related to a party; and the arbitral tribunal shall decide on the acceptability of that evidence. Unless otherwise directed by the arbitral tribunal, the statements of witnesses, including those of experts, may be presented in written form, signed by them. 3. At any time during the proceedings, the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine. 4. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered. Hearings

1. If a hearing is to be held, the arbitral tribunal shall give the parties sufficient advance notice of the date, time and place thereof. 2. Witnesses, including experts, may be examined at the hearing on such terms and in such manner as the arbitral tribunal shall decide. 3. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require witnesses or experts to withdraw during the examination of other witnesses or experts and in particular during deliberations, save that witnesses or experts who are parties to the arbitration shall not, unless both parties agree, be required to withdraw. 4. The arbitral tribunal may decide that any of the witnesses, including experts, may appear at a hearing by means of telecommunications that do not require their physical presence in the same location as the arbitral tribunal and the other parties, if any arrangements can be made for satisfactory identification of the witness or expert and to establish an appropriate procedure for the hearing. Experts Appointed by the Arbitral Tribunal

1. After consultation with the parties, the arbitral tribunal may appoint one or more experts to report to it on specific issues determined by the arbitral tribunal. A copy of the expert's terms of reference issued by the arbitral tribunal shall be communicated to the parties. 2. The expert shall, in principle before accepting appointment, submit to the arbitral tribunal and the parties a description of the expert's qualifications and a statement of impartiality and independence. Within the period of time determined by the arbitral tribunal, the parties shall inform the arbitral tribunal whether they have any objections as to the expert's qualifications, impartiality or independence. The arbitral tribunal shall decide without undue delay whether to accept any such objections. After the appointment of the expert, a party may object to the expert's qualifications, impartiality or independence only if the objection is based on circumstances that were unknown to the objecting party at the time of the appointment or that subsequently came to the knowledge of that party. The arbitral tribunal shall decide without undue delay on the measures, if any, to be taken. 3. The parties shall provide the expert with all relevant information or produce for the expert's inspection all relevant documents or goods that the expert may require. Any dispute between a party and the expert as to the relevance of requested information or production shall be referred to the arbitral tribunal for decision. 4. Upon receipt of the expert's report, the arbitral tribunal shall communicate a copy of the report to the parties, who shall be given the opportunity to express in writing their opinion on the report. The parties shall be entitled to examine any documents on which the expert has relied in making the report. 5. After the submission of the expert's report, the parties may request that the expert be heard at a hearing where the parties shall have the opportunity to be present and to question the expert. In such a hearing, the parties may present expert witnesses in order to testify on the points in issue. The provisions of article 28 shall apply to such proceedings. Default

1. If, within the period of time fixed by these Rules or by the arbitral tribunal, without showing sufficient cause:

• a)

  The claimant fails to submit the statement of claim, the arbitral tribunal shall order the termination of the proceedings, unless there are other matters pending before the tribunal which would justify its continued exercise of jurisdiction;

• b)

  The respondent fails to submit the response to the notice of arbitration or the statement of defense, the arbitral tribunal shall order the continuation of the proceedings, without treating such failure in itself as an admission of the claimant's allegations. These provisions shall apply to the claimant's failure to submit a response to a counterclaim or to a claim for set-off. 2. If a party, duly called upon to appear at a hearing, fails to appear without showing sufficient cause, the arbitral tribunal may proceed with the proceedings. 3. If a party, duly required by the arbitral tribunal to produce documentary or other evidence, fails to do so within the established period without showing sufficient cause, the arbitral tribunal may make the award on the evidence before it. Closure of Hearings

1. The arbitral tribunal may ask the parties whether they have any further evidence to offer or witnesses to produce or statements to make and, if there are none, may declare the hearings closed. 2. The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide at any time before the award is issued, on its own motion or at the request of a party, to reopen the hearings. Waiver of Rules

A party which does not raise an objection in a timely manner to a failure to comply with these Rules or with the arbitration agreement shall be deemed to have waived its right to object, unless it can show that, in the circumstances of the case, it had valid reasons for its failure to object. Section IV The Award Decisions

1. When there is more than one arbitrator, any award or other decision of the arbitral tribunal shall be made by a majority vote of the arbitrators. 2. With respect to procedural matters, if there is no majority, or if the arbitral tribunal has authorized the presiding arbitrator to do so, the presiding arbitrator may decide alone, subject to possible review by the arbitral tribunal. Form and effects of the award

1. The arbitral tribunal may issue separate awards on different matters at different stages of the proceedings. 2. All awards shall be made in writing and shall be final and binding on the parties. The parties undertake to comply with the award without delay. 3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given. 4. The award shall be signed by the arbitrators and shall contain the date on which it was made and shall indicate the place of arbitration. When there is more than one arbitrator and one of them does not sign, the award shall indicate the reason for the absence of the signature. 5. The award may be made public with the consent of the parties or when a party has a legal obligation to disclose it in order to protect or exercise a right, and to the extent that it does so, or in connection with legal proceedings before a court or other competent authority. 6. The arbitral tribunal shall provide the parties with copies of the award signed by the arbitrators.

Applicable law, amiable compositeur

1. The arbitral tribunal shall apply the rules of law that the parties have indicated as applicable to the merits of the dispute. If the parties do not indicate the applicable rules of law, the arbitral tribunal shall apply the law which it considers appropriate. 2. The arbitral tribunal shall decide as amiable compositeur (ex aequo et bono) only if the parties have expressly authorized it to do so. 3. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any applicable trade usage in the case. Settlement or other grounds for termination of proceedings

1. If, before the award is made, the parties agree on a settlement that resolves the dispute, the arbitral tribunal shall issue an order for termination of proceedings or, if the parties request and the tribunal agrees, shall record the settlement in the form of an arbitral award on the terms agreed by the parties. Such award need not necessarily state the reasons. 2. If, before the award is made, the arbitral proceedings become unnecessary or impossible to continue for any reason not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for termination of proceedings. The arbitral tribunal shall be empowered to issue such order unless there are matters on which it may be necessary to rule and the arbitral tribunal considers it appropriate to do so. 3. The arbitral tribunal shall provide the parties with a copy of the order for termination of proceedings or of the arbitral award on the terms agreed by the parties, duly signed by the arbitrators. When an arbitral award is made on the terms agreed by the parties, the provisions of paragraphs 2, 4 and 5 of article 34 shall apply.

Interpretation of the award

1. Within 30 days after receipt of the award, a party may request the arbitral tribunal, notifying the other parties, to interpret the award. 2. The interpretation shall be given in writing within 45 days after receipt of the request. The interpretation shall form part of the award and the provisions of paragraphs 2 to 6 of article 34 shall apply. Correction of the award

1. Within 30 days after receipt of the award, either party, notifying the other parties, may request the arbitral tribunal to correct in the award any error of calculation, of copying, or of a typographical or similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 45 days after receipt of the request. 2. Within 30 days after communication of the award, the arbitral tribunal may make such corrections on its own initiative. 3. Such corrections shall be made in writing and shall form part of the award, and the provisions of paragraphs 2 to 6 of

Additional award

1. Within 30 days after receipt of the order for termination of proceedings or of the award, either party, notifying the other parties, may request the arbitral tribunal to make an award or an additional award on claims raised in the arbitral proceedings but not resolved in its decision. 2. If the arbitral tribunal considers the request for an award or an additional award to be justified, it shall make or complete such

award within 60 days after receipt of the request. If necessary, the arbitral tribunal may extend the period for making the award. 3. When an award or an additional award is made, the provisions of paragraphs 2 to 6 of article 34 shall apply. Definition of costs

1. The arbitral tribunal shall fix the costs of arbitration in the final award and, if it considers it appropriate, in any other award. 2. The term "costs" includes only the following:

• a)

  The fees of the arbitral tribunal, which shall be indicated separately for each arbitrator and which shall be fixed by the tribunal itself in accordance with article 41;

• b)

  The travel and other reasonable expenses incurred by the arbitrators;

• c)

  The reasonable cost of expert advice or any other assistance required by the arbitral tribunal;

• d)

  The travel and other reasonable expenses incurred by witnesses, to the extent that such expenses are approved by the arbitral tribunal;

• e)

  The legal and other costs incurred by the parties in the arbitral proceedings and only to the extent that the arbitral tribunal decides that the amount of such costs is reasonable;

• f)

  Any fees and expenses of the appointing authority, as well as the fees and expenses of the Secretary-General of the PCA. 3. When an interpretation, correction or addition of an award is made as provided in articles 37 to 39, the arbitral tribunal may fix costs based on subparagraphs b) to f) of paragraph 2, but shall not compute additional fees. Fees and expenses of arbitrators

1. The fees and expenses of the arbitrators shall be reasonable in amount, taking into account the amount in dispute, the complexity of the subject matter, the time devoted by the arbitrators and any other relevant circumstances of the case. 2. If an appointing authority has been designated and if such authority applies, or has stated that it will apply, a schedule of fees or a particular method for fixing the fees of arbitrators in international cases, the arbitral tribunal, in fixing its fees, shall apply such schedule or method to the extent it considers appropriate having regard to the circumstances of the case. 3. The arbitral tribunal, once constituted, shall promptly inform the parties of how it proposes to determine its fees and expenses, including the rates it proposes to apply. Within 15 days after receipt of such proposal, either party may refer the proposal to the appointing authority for examination. If, after 45 days from receiving such referral, the appointing authority considers that the proposal of the arbitral tribunal does not meet the criteria of paragraph 1, it shall make the necessary adjustments to it and the proposal shall be binding on the arbitral tribunal. 4.

• a)

  In informing the parties of the fees and expenses fixed in accordance with subparagraphs a) and b) of paragraph 2 of article 40, the tribunal shall also explain how the amounts have been calculated;

• b)

  Within 15 days after receipt of the determination by the arbitral tribunal of its fees and expenses, any party may appeal such determination to the appointing authority. If no appointing authority has been chosen or designated, or if the appointing authority does not rule within the time specified in this Rules, the Secretary-General of the PCA shall rule on the appeal submitted;

• c)

  If the appointing authority or the Secretary-General of the PCA finds that the determination made by the arbitral tribunal does not correspond to the proposal submitted by the tribunal (or any adjustment of such proposal) pursuant to paragraph 3 or if it finds that it is for any other reason manifestly excessive, such authority or the Secretary-General of the PCA shall make, within 45 days after receipt of such referral, any adjustment necessary in the calculation submitted by the arbitral tribunal so as to comply with the criteria stated in paragraph 1. Such adjustments shall be binding on the arbitral tribunal;

• d)

  Any adjustment thus made shall be reflected in the award issued by the tribunal or, if such award has already been issued, shall be set forth in a correction of the award to which the procedure provided in paragraph 3 of

5. During the entire procedure provided in paragraphs 3 and 4, the arbitral tribunal shall continue with the arbitration in accordance with the provisions of paragraph 1 of article 17. 6. Any adjustment made in accordance with the provisions of paragraph 4 shall not affect any other determination set forth in the award other than the determination by the arbitral tribunal of its fees and expenses; nor shall it delay the recognition and enforcement of the remaining parts of the award other than the determination of the fees and expenses. Allocation of costs

1. The costs of arbitration shall be borne by the unsuccessful party or parties. However, the arbitral tribunal may apportion any of these costs among the parties if it decides that such apportionment is reasonable, taking into account the circumstances of the case. 2. The tribunal shall fix in the final award or, if it considers it appropriate, in another award, the sum which one party may be ordered to pay to another party as a result of the decision on the allocation of costs. Deposit of costs

1. When constituted, the arbitral tribunal may require the parties to deposit an equal sum as an advance on the costs referred to in subparagraphs a) to c) of paragraph 2 of article 40. 2. During the course of the proceedings, the arbitral tribunal may require supplemental deposits from the parties. 3. If the parties have agreed on an appointing authority, or if one has been designated, and when one party so requests and the appointing authority consents to perform that

function, the arbitral tribunal shall fix the amount of the deposits or supplemental deposits only after consulting with such appointing authority, which may make to the arbitral tribunal such observations as it considers appropriate concerning the amount of such deposits and supplemental deposits. 4. If the required deposits are not paid in full within 30 days from the communication of the tribunal's request, the arbitral tribunal shall inform the party or parties in default in order that they proceed to make the payment. If such payment is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings. 5. Once an order for termination of proceedings or a final award has been issued, the arbitral tribunal shall provide the parties with a statement of account of the deposits received and shall refund to them any unused balance.

Annex Model arbitration clause for contracts Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules. Note. The parties should consider adding any of the following:

• a)

  The appointing authority shall be ... [name of institution or person];

• b)

  The number of arbitrators shall be ... [one or three];

• c)

  The place of arbitration shall be ... [city and country];

• d)

  The language to be used in the arbitral proceedings shall be ... . Declaration of waiver of objections Note. If the parties wish to exclude any right to challenge the award that may be available under applicable law, they may consider adding a clause along the following lines, provided, however, that the validity and effect of such exclusion shall be subject to the applicable law. Waiver The parties hereby waive any form of recourse against the award before any court or competent authority to the extent permitted by applicable law. Model statements of independence and impartiality under article 11 of the Rules Nothing to disclose I am and will remain impartial and independent of the parties in dispute. To the best of my knowledge, there is no circumstance, whether past or present, that could give rise to justifiable doubts as to my impartiality or independence. I hereby undertake to notify the parties and the other arbitrators without delay of any such circumstance that may come to my knowledge in the course of this arbitration. Information to be disclosed I am and will remain impartial and independent of the parties in dispute. I attach hereto a statement made pursuant to article 11 of the UNCITRAL Arbitration Rules with respect to a) any professional, business or other relations maintained, whether past or present, with any of the parties, and b) any other relevant circumstances. [Such statement shall be attached.] I confirm that these circumstances do not affect either my independence or my impartiality. I hereby undertake to notify the parties and the other arbitrators without delay of any such relationship or circumstance that may come to my knowledge in the course of this arbitration. Note. Each party may consider requesting the arbitrator to add to his or her statement of independence and impartiality the following: I confirm, on the basis of the information presently available to me, that I am able to devote the time necessary to conduct this arbitration diligently and efficiently and in accordance with the time limits set out in the Rules.

  UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration

Scope of application Applicability of the Rules 1. The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration ("Transparency Rules") shall apply to investor-State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a treaty that provides for the protection of investments or investors ("the treaty" *) concluded on or after 1 April 2014, unless the parties to the treaty ** have agreed otherwise. 2. With respect to investor-State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a treaty concluded before 1 April 2014, these Rules shall apply only if: a) The parties to an arbitration (the "disputing parties") agree to their application in respect of that arbitration; or b) The parties to the treaty or, in the case of a multilateral treaty, the State of the claimant and the respondent State have agreed to their application after 1 April 2014. Application of the Rules 3. In any arbitration in which the Transparency Rules are applicable pursuant to a treaty or pursuant to an agreement by the parties to that treaty: * For the purposes of the Transparency Rules, "treaty" shall be understood in a broad sense to mean any bilateral or multilateral treaty containing provisions on the protection of investments or investors and on the right of investors to resort to arbitration against the parties to the treaty, including treaties commonly referred to as free trade agreements, economic integration agreements, framework agreements or cooperation agreements on trade and investment, or bilateral investment treaties. ** For the purposes of the Transparency Rules, any reference to a "party to the treaty" or to a "State" includes, for example, a regional economic integration organization that is a party to the treaty.

a) The disputing parties shall not depart from these Rules, whether by agreement or otherwise, unless the treaty permits such departure; b) The arbitral tribunal, in addition to any discretion granted to it by some provisions of these Rules, shall be empowered to adapt the requirements of any specific provision of these Rules to the circumstances of the case, after consultation with the disputing parties, if such adaptation is necessary for the arbitration to be conducted in a practical manner and if it is consistent with the object and purpose of transparency of these Rules. Discretion and authority of the arbitral tribunal 4. Where the Transparency Rules provide that the arbitral tribunal has discretion, in the exercise of such discretion the arbitral tribunal shall take into account: a) The public interest in transparency of investor-State arbitrations initiated under a treaty and of the arbitral proceedings in question; and b) The interest of the disputing parties in achieving a fair and efficient resolution of the controversy. 5. These Rules shall not affect such authority as the arbitral tribunal may have under the UNCITRAL Arbitration Rules to conduct the arbitration in a manner that promotes transparency, for example, by accepting written submissions from third persons. 6. Faced with any conduct, measure or other action that has the effect of substantially undermining the objectives of transparency of these Rules, the arbitral tribunal shall ensure that such objectives prevail. Instrument applicable in the event of conflict 7. Where the Transparency Rules are applicable, they shall complement any other applicable arbitration rules. Where there is a conflict between the Transparency Rules and the applicable arbitration rules, the Transparency Rules shall prevail. Notwithstanding anything in these Rules, where there is a conflict between the Transparency Rules and the treaty, the treaty shall prevail.

8. Where a provision of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail. Application in arbitrations not subject to the UNCITRAL Arbitration Rules 9. These Rules may be applied to investor-State arbitrations conducted under other rules than the UNCITRAL Arbitration Rules or in ad hoc proceedings.

Publication of information at the commencement of arbitral proceedings Once the respondent has received notice of the arbitration, each of the disputing parties shall promptly transmit a copy thereof to the repository referred to in article 8. After having received the notice of arbitration from the respondent, or after having received the notice of arbitration and registered its transmission to the respondent, the repository shall promptly make available to the public the information relating to the names of the disputing parties, the economic sector affected and the treaty in respect of which the claim is being made.

Publication of Documents 1. Subject to the provisions of Article 7, the following documents shall be made available to the public: the notice of arbitration; the response to the notice of arbitration; the statement of claim, the statement of defense and any other written declaration or communication by either of the parties to the dispute; a list of all exhibits to those documents and to the expert reports and witness statements, if such a list has been prepared for the proceedings, but not the exhibits themselves; any written submission by treaty parties that are not parties to the dispute and by third persons; transcripts of hearings, if available; and procedural orders, decisions and awards of the arbitral tribunal. 2. Subject to the provisions of Article 7, expert reports and witness statements, excluding the exhibits thereto, shall be made available to the public if requested by any person to the arbitral tribunal. 3. Subject to the provisions of Article 7, the arbitral tribunal may decide, on its own initiative or at the request of any person, and after consultation with the parties to the dispute, whether documents and other materials produced or received by the arbitral tribunal not referred to in paragraphs 1 or 2 above shall be made public and, if so, in what form. For example, such documents could be made available to the public at a particular location. 4. Documents to be made available to the public in accordance with paragraphs 1 and 2 shall be communicated by the arbitral tribunal to the repository referred to in Article 8 as soon as possible, in accordance with any provisions or periods for the protection of confidential or protected information contained in Article 7. Documents to be made available to the public in accordance with paragraph 3 may be communicated by the arbitral tribunal to the repository referred to in Article 8 as they become available and, where appropriate, in a redacted form in accordance with Article 7. The repository shall make all documents publicly available in a timely manner in the form and language in which it received them. 5. Persons granted access to documents in accordance with paragraph 3 shall bear the administrative costs of providing them access to the documents, such as photocopying or sending the documents to them, but shall not bear the costs of providing public access to the documents through the repository.

Written Submissions by Third Persons 1. After consultation with the parties to the dispute, the arbitral tribunal may allow a person that is not a party to the dispute or a non-disputing party to the treaty ("third person") to file a written submission with the tribunal on questions of fact or law relevant to the dispute. 2. A third person desiring to file a written submission shall apply to the arbitral tribunal and shall indicate, in a concise written statement, drawn up in one of the languages of the arbitration and in compliance with the page limit set by the tribunal, the following:

• a)

  Description of the third person, including, where appropriate, the organization of which it is a member and its legal status (e.g., a trade association or other non-governmental entity), its general objectives, the nature of its activities, and any parent entity (including any entity that directly or indirectly controls the third person);

• b)

  Disclosure of whether the third person has any affiliation, direct or indirect, with any party to the dispute;

• c)

  Information about any government, person or organization that has provided the third person with i) financial or other assistance in preparing the submission; or ii) substantial assistance in either of the two years preceding the application of the third person under this Article (for example, funding of approximately 20 per cent of the third person's total operations on an annual basis);

• d)

  Description of the nature of the third person's interest in the arbitration; and e) Identification of the specific issues of fact or law in the dispute with respect to which the third person wishes to file a submission. 3. In determining whether to allow a third person to file a submission, the arbitral tribunal shall consider, among other factors it considers relevant: a) Whether the third person has a significant interest in the arbitral proceeding; and b) The extent to which the submission would assist the arbitral tribunal in determining a factual or legal issue by bringing a perspective, particular knowledge or insight that is different from that of the parties to the dispute. 4. A submission by a third person shall:

  • a)

    Be dated and signed by the person submitting it on behalf of the third person;

  • b)

    Be concise and not exceed any page limit set by the arbitral tribunal;

  • c)

    Articulate in precise terms the position of the third person regarding the issues in dispute; and d) Be limited to issues in dispute. 5. The arbitral tribunal shall ensure that submissions do not disrupt or unduly burden the arbitral proceedings and do not prejudice the rights of either party to the dispute. 6. The arbitral tribunal shall ensure that the parties to the dispute are given a reasonable opportunity to comment on any submission by a third person.

Written Submissions by Non-Disputing Parties to the Treaty 1. The arbitral tribunal shall allow, in accordance with paragraph 4, non-disputing parties to the treaty to file written submissions or, after consultation with the parties to the dispute, may invite non-disputing parties to the treaty to file written submissions on issues of treaty interpretation. 2. After consultation with the parties to the dispute, the arbitral tribunal may allow non-disputing parties to the treaty to file written submissions on other questions in dispute. In determining whether to allow such submissions, the arbitral tribunal shall consider, among other factors it considers relevant, the factors referred to in Article 4, paragraph 3, and, in order to promote greater certainty, the need to avoid the submission of statements in support of an investor's claim equivalent to diplomatic protection. 3. The arbitral tribunal shall not draw any inference from the absence of a submission or response to an invitation under paragraphs 1 or 2. 4. The arbitral tribunal shall ensure that the submissions do not disrupt or unduly burden the arbitral proceedings and do not prejudice the rights of the parties to the dispute. 5. The arbitral tribunal shall ensure that the parties to the dispute are given a reasonable opportunity to comment on any submission by a non-disputing party to the treaty.

Hearings 1. Subject to the provisions of Article 6, paragraphs 2 and 3, hearings held for the presentation of evidence or for oral argument ("hearings") shall be public. 2. To the extent necessary to protect confidential information or to ensure the integrity of the arbitral process in accordance with Article 7, the arbitral tribunal shall make arrangements for parts of the hearing to be held in private. 3. The arbitral tribunal shall make logistical arrangements for facilitating public access to hearings (including, as appropriate, by organizing attendance by video link or other appropriate means). However, the arbitral tribunal may, after consultation with the parties to the dispute, decide that all or part of the hearing shall be held in private when it is necessary for logistical reasons, for example where it is not practicable to make logistical arrangements for public access to the hearing due to the circumstances.

Exceptions to the Rule of Transparency Confidential or Protected Information 1. Confidential or protected information, as defined in paragraph 2 and as determined in accordance with the provisions set out in paragraphs 3 and 4, shall not be made available to the public in accordance with Articles 2 to 6. 2. Confidential or protected information includes:

• a)

  Confidential business information;

• b)

  Information that, by the treaty, must not be made available to the public;

• c)

  Information that, in the case of the respondent State, must not be made available to the public pursuant to the laws of the State, and in the case of other information, must not be made available to the public pursuant to any other law or regulation that the arbitral tribunal determines to be applicable to the disclosure of that kind of information; or d) Information that would impede the enforcement of any law. 3. The arbitral tribunal, after consultation with the parties to the dispute, shall make arrangements for preventing confidential or protected information from being made available to the public, including, where appropriate, by establishing:

  • a)

    Time periods within which a party to the dispute, a non-disputing party to the treaty or a third person may request that information contained in documents be protected;

  • b)

    Procedures for expeditiously selecting and redacting confidential or protected information from documents; and c) Procedures for holding hearings in private to the extent contemplated in Article 6, paragraph 2. The arbitral tribunal shall decide, after consultation with the parties to the dispute, whether information is confidential or protected. 4. If the arbitral tribunal determines that information in a document or a document itself should not be redacted or prevented from being made public, any party to the dispute, non-disputing party to the treaty or third person that voluntarily submitted the document to the file of the arbitral proceeding may withdraw such document or part thereof from the file. 5. Nothing in these Rules shall require the respondent State to disclose information that it considers contrary to its essential security interests. Integrity of the Arbitral Process 6. Information shall not be made available to the public in accordance with Articles 2 to 6 where such information, if made available to the public, would be likely to compromise the integrity of the arbitral process as provided in paragraph 7. 7. The tribunal may, on its own initiative or at the request of a party to the dispute, after consultation with the parties to the dispute where practicable, take measures to prevent or delay the publication of information where publication may be likely to compromise the integrity of the arbitral process because it may prevent or delay the gathering of evidence, result in the intimidation of witnesses, counsel of the parties to the dispute or members of the arbitral tribunal, or otherwise result in comparable exceptional circumstances.

Repository of Published Information The repository of information published under the Rules on Transparency shall be the Secretary-General of the United Nations or an institution designated by UNCITRAL.