Mauritius Convention Soon to Enter into Force
On 18 October 2017, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Mauritius Convention or the Convention) will enter into force. This follows Switzerland’s ratification of the Convention on 18 April 2017*.
The Mauritius Convention (which was drafted under the auspices of the United Nations Commission on International Trade Law – UNCITRAL) extends the applicability of the UNCITRAL Rules on Transparency in Treaty-based investor-State Arbitration (the UNCITRAL Transparency Rules), to investor-State arbitration proceedings conducted under an investment treaty concluded before 1 April 2014.
As you may know, the UNCITRAL Transparency Rules aim at supplementing the traditional UNCITRAL arbitration rules with specific transparency requirements (such as the publication of the names of the disputing parties, the notice of arbitration, the response to the arbitration notice, the statements of claim and defence, etc…).
Pending the entry into force of the Mauritius Convention, the UNCITRAL Transparency Rules are only applicable by default to investment arbitration proceedings arising under a treaty concluded on or after 1 April 2014. In addition, the proceedings must be initiated under the UNCITRAL arbitration rules. For any dispute arising from a treaty concluded before 1 April 2014, the UNCITRAL Transparency Rules only apply if the parties have explicitly agreed to their application.
To address the many other investor-State arbitration proceedings arising under investment treaties concluded prior to 1 April 2014, the Mauritius Convention enlarges the scope of application of the UNCITRAL Transparency Rules by providing that they will be applicable to all investor-State arbitration proceedings (whether or not initiated under the UNCITRAL arbitration rules) conducted pursuant to a treaty concluded before 1 April 2014. The Mauritius Convention will only apply mandatorily, however, when both the respondent State and the investor’s home State are parties to it. If only the respondent State is a party to the Mauritius Convention, the UNCITRAL Transparency Rules will be applicable if the claimant agrees to the application of those rules.
As of today, and since only three States (Canada, Mauritius and Switzerland) have become parties to the Mauritius Convention, this Convention will first only be applicable to a 1998 treaty between Switzerland and Mauritius. Canada has not concluded any investment treaty with either Switzerland and Mauritius.
* Pursuant to Article 9, the Mauritius Convention provides that it will only enter into force six months after the third ratification. So far, only 3 States (Canada, Mauritius and Switzerland) have ratified the Mauritius Convention while 18 other States have signed it.