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Investment | Brussels, 29 January 2015

European Commission pushes for full transparency for ISDS in current investment treaties

The European Commission has today proposed to allow UN rules on transparency for Investor-to-State Dispute Settlement (ISDS) to apply also to existing investment treaties that the EU and Member States have in place.

These rules represent an important change in giving the public access to documents submitted in ISDS cases, making hearings open to the public, and allowing interested parties to make submissions to the proceedings.

So far, these UN rules on transparency are only used in new investment treaties. The European Commission has integrated them in all of the EU’s completed and on-going ISDS negotiations.

Today's proposals, when adopted by the Council, will enable the EU and its Member States to adhere to the new UN Convention on Transparency. This will make it legally and technically possible to extend these transparency rules to existing treaties. There are 3000 such treaties in force worldwide and EU Member States account for around half of these.

'The EU and Member States should sign up to this Convention without delay. These new rules are a welcome and necessary reform of the ISDS system worldwide, making old agreements more transparent,' said EU Trade Commissioner Cecilia Malmström.

The EU was instrumental in drawing up both the UN transparency rules and the new UN Convention on Transparency. The Convention allows countries, and regional economic integration organizations like the EU, to declare their willingness to apply the UN transparency rules to cases brought under their existing investment treaties.

Thus, in practice, the transparency rules could be applied to the more than 1400 bilateral investment treaties concluded by EU Member States and to the Energy Charter Treaty to which the EU has been a party since 1998.

The more countries and organizations adhere to the UN Convention, the more the rules will apply to the 3000+ investment agreements currently in force worldwide. This means the Convention will make it faster and easier to improve transparency of investor-state arbitration than a one-by-one renegotiation of the existing investment treaties.

It is now up to the Council to approve the Commission's proposals. The UN Convention will be open for signature as of 17 March 2015 in Port Louis, Mauritius and then with the United Nations in New York.

Read the memo