{"id":219,"date":"2009-01-22T08:21:00","date_gmt":"2009-01-22T13:21:00","guid":{"rendered":"http:\/\/itn.mattrock.ca\/2009\/01\/22\/the-united-kingdom-tight-lipped-over-dispute-with-an-indian-investor\/"},"modified":"2013-02-05T10:08:52","modified_gmt":"2013-02-05T16:08:52","slug":"the-united-kingdom-tight-lipped-over-dispute-with-an-indian-investor","status":"publish","type":"post","link":"https:\/\/www.iisd.org\/itn\/2009\/01\/22\/the-united-kingdom-tight-lipped-over-dispute-with-an-indian-investor\/","title":{"rendered":"The United Kingdom tight-lipped over dispute with an Indian investor"},"content":{"rendered":"

By Damon Vis-Dunbar
\n22 January 2009<\/strong><\/p>\n

The United Kingdom has formally declined to release a notice of arbitration delivered by an Indian citizen under the UK-India bilateral investment treaty, explaining that it would likely \u201cprejudice relations between the United Kingdom and an international organisation; UNCITRAL<\/span>.\u201d<\/p>\n

UNCITRAL is a United Nations body responsible for international business law whose arbitration rules\u00a0are commonly used to settle investment disputes between host states for foreign investors.<\/p>\n

In this case, the UNCITRAL Arbitration Rules have been applied to a dispute between an Indian citizen and the United Kingdom. In 2006, an Indian lawyer named Ashok Sancheti served the UK with a notice of arbitration, complaining of \u201cblatant discrimination by different organs and functions of the United Kingdom in dealing with me as an inward investor.\u201d This is the only investment-treaty claim currently pending against the UK, according to the UK\u2019s Foreign and Commonwealth Office (FCO).<\/p>\n

The arbitration proceedings became public in 2008, when UK courts described the dispute in rulings related to a separate case between Sancheti and the City of London. ITN<\/span> subsequently requested a copy of the notice of arbitration, as well as any other decisions or awards which may have been submitted by the tribunal. However, the UK\u2019s Foreign Office has formally declined the request, citing provisions on confidentiality in the UNCITRAL rules.<\/p>\n

In coming to a decision, the FCO said it had considered \u201cthe desirability for disclosure based on the grounds of transparency and accountability of a public authority.\u201d However, the FCO also weighed \u201cfactors favouring withholding the material\u2014in particular the public interest in maintaining good relations with UNCITRAL.\u201d<\/p>\n

Ultimately, the FCO concluded that \u201cthe public interest in withholding the material outweighs the public interest in disclosure.\u201d The FCO explained that it risked censor from the Tribunal hearing the arbitration, given that the parties had not agreed to publicly disclose documents submitted in the arbitration proceedings.<\/p>\n

The UNCITAL arbitration rules state that \u201cHearings shall be held in camera unless the parties agree otherwise\u201d and \u201cThe award may be made public only with the consent of both parties.\u201d<\/p>\n

The UNCITRAL rules of arbitration\u2014popular for settling commercial and treaty-based investment disputes\u2014have come under increased scrutiny in the last couple years, as governments are currently in the process of revising the rules for the first time since they were adopted in 1976. As ITN has previously reported, certain civil society groups\u2014including the IISD<\/span>, the publishers of ITN\u2014have called for revisions that would increase the level of transparency with regards to investor-state arbitrations under international investment agreements.<\/p>\n

For previous ITN reporting on Ashok Sancheti v. the United Kingdom<\/em>, see \u201cIndian lawyer pursues claim against the United Kingdom under the India-UK BIT<\/span>\u201d, By Damon Vis-Dunbar, 28 November, 2008, available here: http:\/\/www.investmenttreatynews.org\/cms\/news\/archive\/2008\/11\/28\/indian-lawyer-pursues-claim-against-the-united-kingdom-under-the-india-uk-bit.aspx<\/a><\/p>\n

For previous ITN reporting on transparency in the UNCITRAL Arbitration Rules, see: \u201cUNCITRAL Working Group meets as investor-state questions loom\u201d, By Luke Eric Peterson, 5 February 2008, available here: http:\/\/www.IISD<\/span>.org\/pdf\/2008\/itn_feb5_2008.pdf<\/a><\/p>\n