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UNCITRAL Exp  
UNCITRAL Expedited Arbitration Rules (2021)

ZivilrechtZivilprozessrecht

Schiedsverfahrensrecht

  1. The suitability of the Expedited Rules for investment arbitration is a question left to the disputing parties, as express consent of the parties is required for the Expedited Rules to apply (see paras. 2, 4 and 5 above). States could refer to and consent to the Expedited Rules in their respective investment treaty, based on which an investor claimant may consent to refer a dispute under the Expedited Rules. However, a reference to the UARs in investment treaties (regardless of whether the reference was included prior to or after the effective date of the Expedited Rules) should not be construed as consent by the State Parties to the Expedited Rules as express consent is necessary for the application of the Expedited Rules.
  2. According to article 1(4) of the UARs (as adopted in 2013), the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (“Transparency Rules”) form part of the UARs. Article 1 of the Transparency Rules addresses the applicability of the Transparency Rules to “investor-State arbitration initiated under the UNCITRAL Arbitration Rules”. As the Expedited Rules are presented as an appendix to the UARs, an investor-State arbitration initiated under the Expedited Rules should be considered as being initiated under the UARs and therefore, the Transparency Rules could apply.
  3. If the investor-State arbitration is initiated pursuant to an investment treaty concluded before 1 April 2014, the Transparency Rules would only apply when the disputing parties have agreed to their application or the States Parties to the treaty have agreed to their application after 1 April 2014. Therefore, even if the disputing parties agree to the application of the Expedited Rules, the proceedings would not be subject to the Transparency Rules unless above-mentioned conditions are met.
  4. If the investor-State arbitration is initiated pursuant to an investment treaty concluded on or after 1 April 2014, the Transparency Rules would apply unless the States Parties to the treaty have agreed otherwise. In other words, if States Parties to the treaty have not agreed otherwise and the disputing parties agree to the application of the Expedited Rules, the proceedings would be subject to the Transparency Rules.
  5. Parties that have agreed to refer an investor-State dispute to arbitration under the Expedited Rules may agree that the Transparency Rules shall not apply to the arbitration. For example, States could include a reference to the Expedited Rules in their investment treaties, while opting out of the Transparency Rules, for example, by making a reference to (i) the 2010 version of the UARs as modified by the Expedited Rules or (ii) the Expedited Rules without article 1(4) of the UARs.
  6. However, the flexibility for the disputing parties to opt out of the Transparency Rules in investor-State arbitration initiated pursuant to an investment treaty concluded on or after 1 April 2014 which includes a reference to the UARs will be restricted, if the States Parties to that treaty have not opted out of the Transparency Rules. For example, if two States conclude a treaty after 1 April 2014 allowing an investor to refer a dispute to the UARs and the States have not opted out of the Transparency Rules, it would not be possible for a claimant investor and the respondent State to agree to the Expedited Rules without being subject to the Transparency Rules.
Quelle: UNCITRAL
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