Dear Alexander,

Thanks for the response and for looking into this.

Our concern is that despite of the analysis by the Secretariat there is a risk that if nothing is said in the text of the EAPs arbitrators/parties could still claim that the Transparency Rules automatically apply if they choose to use the EAPs and no exclusion was agreed, under the circumstances described in our paper (because the EAPs will likely be an annex to the existing UNCITRAL Rules which incorporate the Transparency Rules) .

The ultimate way to prevent this would be for the EAPs to explicitly allow such exclusion.

Best,

Itai

Itai Apter, Adv.

Director, International Civil Affairs

Office of the Deputy Attorney General (International Law)

Israel Ministry of Justice

Tel: 972-73-3928797

Fax:: 972-3-7634706

From: Плахов Александр Владиславович <PlahovAV@economy.gov.ru>
Sent: Thursday, March 11, 2021 3:15 PM
To: Itai Apter‏ <ItaiA@justice.gov.il>
Cc: Yael Weiner‏ <Yaelw@justice.gov.il>; Lianna Bernstein‏ <LiannaB@justice.gov.il>; Nir Deutsch‏ <NirDe@justice.gov.il>; Dana Daybog‏ <DanaDa@justice.gov.il>; Hila Echerman‏ <HilaE@justice.gov.il>
Subject: RE: UNCITRAL WG II Meeting - Transparency Rules

Dear Itai!

Thank you for sharing your statement on EAR. I am going to ask the Ministry of justice to consider it in a shortest period of time.

Just to have a clear understanding – Rules on Transparency will automatically apply if parties of the dispute have not excluded them from application?

Yours,

Alexander

From: Itai Apter <ItaiA@justice.gov.il>
Sent: Thursday, March 11, 2021 12:58 PM
To: Плахов Александр Владиславович <PlahovAV@economy.gov.ru>
Cc: Yael Weiner <Yaelw@justice.gov.il>; Lianna Bernstein <LiannaB@justice.gov.il>; Nir Deutsch <NirDe@justice.gov.il>; Dana Daybog <DanaDa@justice.gov.il>; Hila Echerman <HilaE@justice.gov.il>
Subject: UNCITRAL WG II Meeting - Transparency Rules

Dear Alex,

We hope all is well with you and that you will be attending the UNCITRAL WG II meeting in a couple of weeks.

One of the remaining issues flagged by the Secretariat to be discussed in the meeting is the question of the interaction between the Expedited Provisions (EAPs) and the UNCITRAL Transparency Rules (incorporated to the current UNCITRAL Arbitration Rules - UARs) (WP 216, para. 84-85).

Israel has made a submission on this issue (see enclosed).

In short, our position is that parties to dispute should be explicitly able to exclude the application of the Transparency Rules when agreeing to the application of the EAPs. If the EAPs would be presented as an appendix to the UARs, as currently drafted, this might make it difficult for parties who wish to utilize the EAPs to avoid the automatic application of the Transparency Rules. While we agree that there is benefit to referring to this in the Explanatory Note, as suggested by the Secretariat, it seems much more clear and useful to include an explicit text in the EAPs to avoid any misconceptions.

It would be good if you Russia can consider supporting Israel's proposal on this in the meeting.

If you like to discuss over teams/zoom sometime next week we will be glad to suggest some time options.