In July 2013, the United Nations Commission on International Trade Law (UNCITRAL) adopted a package of rules aiming to ensure transparency in investor-State arbitration (the “Rules on Transparency”), ratifying the work done by delegations to UNCITRAL—comprised of 55 Member States, additional observer States and observer organizations—over the course of nearly three years of negotiations. These new Rules on Transparency, which will officially come into effect on April 1, 2014, provide for a significant degree of openness throughout the arbitral proceedings.
With UNCITRAL’s official recognition and recurring affirmation of the “importance of ensuring transparency” in treaty-based investor-State dispute resolution,2 and its development and adoption of these new rules operationalizing that policy stance, there is now a carefully negotiated and widely approved template that can serve as a model for how to conduct investor-State arbitrations. This model reflects and is consistent with broader worldwide trends recognizing the
importance of transparency as a tool for promoting and ensuring effective democratic participation, good governance, accountability, predictability and the rule of law.
Under previous versions of the UNCITRAL Arbitration Rules, disputes between investors and States were often not made public, even where important public policies were involved or illegal or corrupt business practices were uncovered. The new Rules on Transparency now replace the previous UN-sanctioned standard, which regularly enabled investor-State disputes to be kept out of the public view.
The new Rules on Transparency will apply on a default basis to UNCITRAL arbitrations conducted under treaties concluded after the new rules come into effect on April 1, 2014. Unfortunately, however, the previous standard will still apply in UNCITRAL arbitrations brought under treaties concluded before that date unless States or disputing parties expressly “opt into” the new rules. To facilitate that “opt in” process, UNCITRAL has decided that its next steps must include drafting a convention that will provide States an “efficient mechanism” for applying the on Transparency to existing treaties, and will begin work on that mandate in the fall of 2013.
In order to highlight the significance of these developments and encourage use of the new Rules on Transparency, this note first provides an overview of transparency in investor-State arbitration prior to adoption of the rules, describes what the new rules require and then discusses options for promoting use of the rules in future disputes.