The United Nations Commission on International Trade Law (UNCITRAL) is currently revising its Arbitration Rules for the first time since 1976 in its Working Group II on Arbitration (WG II). UNCITRAL rules are primarily used for arbitrating commercial disputes between private parties, but they are also used for investment arbitration, including in disputes initiated by foreign investors against host States. These disputes are based on an investment treaty or a contract between the investor and the government (host-government agreement). UNCITRAL arbitration rules are now thought to be the second most commonly employed set of arbitration rules in investment disputes, after those of the International Centre for Settlement of Investment Disputes (ICSID).
Investment disputes brought by private investors against States have become increasingly frequent and with more than 2500 international investment treaties now in existence the number of disputes will likely continue to increase. These disputes typically involve significant public interest issues because investors allege wrongdoing by a government or governmental agency. In addition, they frequently involve important domestic issues such as environmental and health protection, exploitation of minerals, forests, water and other natural resources, and the delivery of public services. Moreover, the disputes can result in large awards affecting the public purse. Several recent cases have resulted in awards against host States for over US$100 million.
Despite the public interests involved, arbitration proceedings under UNCITRAL rules can remain secret, and often do. This is due to the fact that the rules were crafted 30 years ago with commercial disputes between private parties in mind. They were not crafted for disputes involving States and public interests. As a result, investment disputes, including their initiation and the final and interim awards, can remain confidential if one party so requests, even against the will of the other party (who may be a government, wishing to inform its citizens about the case).