February 11, 2011
This week, the United Nations Commission on International Trade Law (UNCITRAL) resumes negotiations on including transparency and access to information in its rules for investor-State arbitrations at the United Nations headquarters in New York. CIEL, together with the International Institute for Sustainable Development (IISD), has spearheaded the efforts to include transparency, access to information and public participation in arbitrations brought by investors against States at UNCITRAL and elsewhere..
Originally developed more than three decades ago for use in private commercial disputes, UNCITRAL arbitration rules are now used around the world to resolve disputes involving not only private companies but national governments. In fact, UNCITRAL rules are now the second most commonly used rules in arbitrations where a State is a party. In light of this, CIEL’s and IISD are working to raise awareness of the profound public interest in these rules, and the disputes resolved under them. These disputes often raise important public policy issues that can deeply affect decision-making on issues of national importance. Unfortunately, the existing rules stifle transparency, access to information and public participation. It is often impossible to even know whether an arbitration exists or what the outcome is. This secrecy undermines democratic values and thwarts both domestic freedom-of-information laws and the human right to access to information.
UNCITRAL’s Working Group II, the group mandated to revise the arbitration rules, initially rebuffed calls by CIEL and IISD to introduce transparency requirements into investment arbitrations. But, in 2008, UNCITRAL’s main body agreed that the arbitration rules should provide for transparency in investor-State arbitrations. More recently, CIEL has worked to raise the linkage between these negotiations and countries’ obligations under international human rights law. As the Working Group resumes discussions on transparency in February 2011, stiff opposition is expected, in part because so many of the negotiators are members of the private arbitration bar that is benefited by the current secretive rules.