Examples of using Transparency rules in English and their translations into Arabic
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Possible limitations to transparency rules.
The treaty provisions and the transparency rules would need to be interpreted by the arbitral tribunal which would apply them.
Possible exceptions to transparency rules.
It was said that such a presumption implied that the UNCITRAL ArbitrationRules be amended in order to include the transparency rules.
It was further questioned how the disputingparties could be compelled to comply with transparency rules, in instances where those rules would be contrary to the applicable law.
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The view was expressed that the underlying treaty between State parties would prevent one State party andthe investor to depart from the transparency rules.
He had taken duenote of the views expressed concerning the work on transparency rules in investor-State arbitration and would faithfully report back to the Working Group.
It was noted that reasons for holding a closed hearing couldbe treated as part of the possible exceptions to the transparency rules(see below, paras. 67-72).
However, it was pointed out that article 1(4) of the transparency rules aimed at providing a rule of interpretation, and the attention of the Working Group was called on the difficulties to deal with such a matter.
The Chair proposed that, in its report, the Commission should support the work of the Working Group; express appreciation for the work of the secretariat; and request the Working Group to pursue its efforts andproduce a text on transparency rules for consideration by the Commission at its next session.
Further, it was said that, in order to ensure application of the transparency rules to existing investment treaties,it might be necessary to include a reference to the transparency rules in the UNCITRAL Arbitration Rules. .
After discussion, the proposal under paragraph 74, with the modifications proposed in paragraph 78, was found acceptable with some delegations maintaining their position in favour of deleting paragraph(2)or reserving their position until all substantive matters in the transparency rules had been discussed.
After discussion, the prevailing view was that, regardless of the level of transparency, in case of conflict between the transparency rules and treaty provisions dealing with the same subject matter, the treaty provisions would prevail.
It was also questioned how the transparency rules would operate in connection with article 1(3) of the UNCITRAL Arbitration Rules(as revised in 2010), which provided that the mandatory provisions of the applicable law prevailed.
It was recalled that, for existing investment treaties, the Working Group had agreed to explore a number of solutions,including recommendations or a convention, and that the transparency rules should not apply to existing investment treaties, unless consent would be expressed by Parties to the treaty to that effect.
Option 1 provided, as a principle, application of the transparency rules unless the Parties to an investment treaty agreed differently, thereby putting the burden of negotiating exclusion of the transparency rules on the Party advocating exclusion.
A contrary view expressed was that the disputing parties could, as a matter of law, always amend their arbitration agreements(including the reference to the transparency rules contained therein) and that it was accordinglynot possible to entrench non-derogable provisions in the transparency rules.
A few delegations still opposed to combine the transparency rules with the UNCITRAL Arbitration Rules, and insisted that stand-alone rules would guarantee Parties conscious and explicit consent to the rules on transparency. .
For existing investment treaties, the rules on transparency would only apply where the parties had expressly consented thereto, with wording being used to make it clear that there could be no dynamic interpretation ofexisting investment treaties which would make the transparency rules applicable to them.
In noting that some political parties refused public funding in order toavoid having to comply with transparency rules, one speaker underscored that legislative and administrative measures needed to be kept up to date to address new challenges.
The determination of the scope of application of the rules on transparency should be done in a manner that would leave no ambiguity, and it was clarified that the efforts of the Working Group aimed at identifying the most widely acceptable rule of application,taking account of the divergence of views on the desired impact of the transparency rules on existing investment treaties.
It was said that the presumption in paragraph(2) that the transparency rules would apply when the investment treaty contained a reference to the UNCITRAL Arbitration Rules raised questions as to the form that the transparency rules would take.
With a view to enhancing certainty as to the applicability of the rules on transparency with respect to existing treaties, various suggestions were made, including unilateral declarations by Governments, a joint interpretation by Governments, an instrument open to signature or ratification wherebyStates could express consent or agree to apply the transparency rules under existing treaties.
Another proposal made was to includewording similar to that contained in article 1(3) of the transparency rules, in order to indicate that the arbitral tribunal should exercise its discretion to adapt the rules, with a view to ensure a fair and efficient resolution of the dispute.
Export control legislation should include distinct purposes and objectives, clear jurisdictions of authority,clear jurisdictions for controlled items, transparency, rules on document retention, allowance for information sharing for enforcement, a mandate for enforcement and appropriate penalties for violations.
It would not becertain that arbitral tribunals would apply the transparency rules in particular in cases where the existing treaties would refer to the" 1976 UNCITRAL Arbitration Rules", since arbitral tribunals might consider that the 1976 UNCITRAL Arbitration Rules were different from the 1976 UNCITRAL Arbitration Rules amended in, for instance, 2013, to incorporate the rules on transparency. .
It was suggested to make certain provisions of the rules on transparency non-derogable, for example,by omitting from the transparency rules any right for the parties to amend the transparency rules by subsequent agreement, such as that contained in article 1(1) of the UNCITRAL Arbitration Rules. .
Views were expressed in favour of option 2,variant 2 on the basis that transparency rules should be drafted in line with the fundamental principle of public international law that States Parties to investment treaties should not be bound unless they explicitly consented in the investment treaty.
That proposal also contained a proposed new article 1(4) of the UNCITRAL Arbitration Rules 2010, in order to articulate the link between the existing UNCITRAL Arbitration Rules andthe draft transparency rules, without formally making the transparency rules part of, or an annex to, the UNCITRAL Arbitration Rules, thus making the transparency rules accessible to arbitrations conducted under rules other than the UNCITRAL Arbitration Rules. .
Diverging views were expressed, that fell into three categories:those in favour of including a provision to the effect that the transparency rules would not apply to existing treaties by a dynamic interpretation of those investment treaties; those expressing preference for permitting application of the rules on transparency to existing investment treaties, where so permitted, by a dynamic interpretation of the investment treaties; and lastly, those in support of not providing any rules on that matter.