The Federal Cabinet has decided to sign the Mauritius Convention. By taking this decision, the government has paved the way for much greater transparency in any future investor-state dispute-settlement cases.
Federal Minister for Economic Affairs and Energy Sigmar Gabriel said: "We need to finally bring these cases out into the open. The public has a fundamental interest in knowing the substance of a case brought against a state by a private investor - and they are entitled to this information. After all, these are always cases of public interest, not least for taxpayers. I am therefore a fierce advocate for greater transparency in investor-state dispute-settlement cases. The German government was actively involved in the drafting of the new UN transparency rules and we now want to consistently apply them to cases that are brought under the provisions of German's existing bilateral investment treaties. By taking the decision to sign the Mauritius Convention, the government is sending a strong political signal for greater transparency."
The Mauritius Convention (Convention on Transparency in Treaty-Based Investor-State Arbitration) marks a paradigm shift in ISDS procedures brought under the provisions of existing investment promotion and protection treaties. It ensures that the 2014 UNCITRAL transparency rules approved by the United Nations Commission on International Trade Law are applied by all signatory states, including in their existing investment treaties with other signatory states. The UNCITRAL transparency rules state that for every case, a notice of arbitration shall be made available to the public (Art. 2), that all written submissions are to be made public (Art. 3), that the hearings are to be held in public (Art. 6), that civil society is to be given the opportunity to get involved (Art. 4), and that the decisions/rulings are also to be made public (Art. 3). Investor-state dispute-settlement procedures based on the UNCITRAL transparency rules will be more transparent than cases brought before German administrative courts or WTO procedures.
Out of the 129 bilateral investment promotion and protection treaties that Germany has concluded, 86 provide for investor-state dispute-settlement. All of these treaties were concluded before the entry into force of the 2014 UNCITRAL transparency rules, which means that these rules are not directly applicable to any investor-state dispute settlement procedures brought under the provisions of Germany's bilateral investment treaties. The Mauritius Convention was drawn up to allow for the UNCITRAL transparency rules to be applied to cases brought under the provisions of these older treaties. It extends the scope of the UNCITRAL transparency rules to existing investment treaties, provided that the case in question has been brought against a signatory to the Mauritius Convention, and that the investor is from a state that is also a signatory to the Convention. As of today, there are about 3,000 investment treaties in force across the globe.
The signing of the Mauritius Convention is due to take place in Port Louis, Mauritius, on 17 March 2015.