The UNCITRAL working group II (Arbitration and Conciliation) meets twice a year to report on arbitration issues. For background information, including on the working group's discussions on transparency, see UNCITRAL working group II: tracker.

At its 57th session, the working group focused on the latest version of Articles 3 to 9 of the draft rules on transparency in investment treaty arbitration, prepared by the Secretariat.

Draft Article 3 provides for publication of documents or information.

Article 3(1) sets out the list of documents to be automatically disclosed to the public (subject to the exceptions in Article 8). The working group agreed that:

As currently drafted, Articles 3(2) and 3(3) confer a discretionary power on the arbitral tribunal to order publication of additional documents or information (Article 3(2)) and a right for third persons to request access to additional documents or information (Article 3(3)).

The working group agreed to consolidate these provisions into a single paragraph, providing a uniform provision for an application to the tribunal in respect of "other documents" not falling within Article 3(1) or the new Article 3(2) on expert reports and witness statements.

The working group expressed agreement on the substance of Article 3(4), which sets out how the documents made available to the public pursuant to this Article are communicated to the repository referred to in article 9 (see Article 9 below). Only consequential amendments were required from the amalgamation of Articles 3(2) and 3(3).

The working group also agreed to amend the wording in Article 3 to refer to Article 8 as a whole, rather than the exceptions in Article 8.

The working group agreed that arbitral awards should be included in the list of documents to be automatically disclosed. Therefore, Article 3(1) would be amended to refer to "orders, decisions and awards". As a result, it was agreed that article 4 was no longer necessary and should be deleted.

Article 5 deals with submissions by third persons (also known as amicus curiae submissions). Article 5(1) provides that the tribunal may allow a third person to file a written submission regarding a matter within the scope of the dispute. Article 5(2) sets out the information that a third person wishing to make a submission must provide. Articles 5(3), 5(5) and 5(6) list factors for the tribunal to take into account, and Article 5(4) gives guidance on the content of the submission.

The working group decided to retain the substance of the majority of Article 5. However, Article 5(2)(c) (requiring the third person to disclose financial or other assistance provided to it) is to be amended. It will now require disclosure of:

Article 6(1) deals with submissions on issues of treaty interpretation from a non-disputing party to the treaty. Opinion was divided as to whether the arbitral tribunal should be required to accept such submissions or whether it should have a discretion to do so. This Article will be discussed further. In the meantime, the working group agreed to invite states to review their treaties to identify if they contained provisions giving the non-disputing party the right to submit its opinion on treaty interpretation to the tribunal.

The working group agreed that this Article should be amended to provide for submission on "further matters within the scope of the dispute".

The working group also agreed to delete the wording which expressed the arbitral tribunal's power to invite submissions from non-disputing parties to a treaty. Therefore, it will not be open to a tribunal to invite such submissions.

Article 6(3), (4) and (5) were adopted with only minor amendments made to Article 6(5).

Article 7(1) provides that hearings shall be public, unless otherwise decided by the arbitral tribunal, after consultation with the parties. After discussion as to whether public hearings should be the rule, rather than the exception, it was ultimately agreed to leave this paragraph open for further deliberation.

This paragraph allows the tribunal to hold certain parts of the hearing in private where there is a need to "protect [confidential or sensitive] information". The working group agreed that the square brackets around "confidential or sensitive" be removed, and, subject to discussion on Article 8, that the words "or sensitive" be deleted.

Article 7(3) provides for the arbitral tribunal to make "logistical arrangements to facilitate the public's right of access to hearings". It was agreed that the words "right of" be removed, as the logistical arrangements concerned access rather than the right to access.

A revised draft of article 8 on exceptions to transparency was put before the working group. The working group agreed to retain most of the paragraphs in the revised Article 8 with only minor amendments. Most of the discussion centred on Articles 8(2) and 8(4).

Article 8(2) defines "confidential and protected information", which is one of the exceptions to transparency. The working group debated article 8(2)(c), which provides that confidential or protected information consists of "Information that is protected against being made available to the public under any law or rules determined to be applicable to the disclosure of such information by the arbitral tribunal". Various proposals were made regarding the reference to the law of the disputing party. After discussion, three options were set out for the secretariat to include in its subsequent drafts for further consideration by the working group.

A new paragraph was also suggested, to the effect that a party would not disclose information which it considered would impede law enforcement or would be contrary to the public interest or its essential security interests. It was proposed that this be included as article 8(2)(bis), though it was suggested that it should be dealt with under Article 8(2)(c).

Article 8(2)(c) remains open for deliberations.

Article 8(4) enables a disclosed document to be withdrawn from the record of the proceedings if the tribunal decides it should not be redacted or protected from publication.

It was agreed that this paragraph should be amended to clarify that it only applied where the document had been voluntarily introduced into the record.

The working group also agreed to retain the substance of Articles 8(10) and (11), which provide for non-publication of information where publication would jeopardise the integrity of the arbitral process.

Article 9 provides for the establishment of a repository of published information The working group did not reach a consensus as to whether there should be a single administrative body or multiple institutions designated as repositories. Therefore, a mandate was given to UNCITRAL to liaise with other arbitral institutions to assess better the cost and other implications of acting as a repository, and to report back to the working group at its next session.

The remaining issues outstanding on the working group's second reading of the draft rules are:

This would leave for the third reading consideration of outstanding issues in Article 1 (scope of application), Article 6(1) and Article 7(1), on the question of open hearings.