International Experience of Applying Transparency Rules in Arbitration Processes Between Investors and States

Abstract

Abstract Following modern worldwide trend of transparency, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, which were incorporated in UNCITRAL Arbitration Rules. The Convention on Transparency (the Mauritius Convention) adopted later was an attempt to resolve the situation with treaties, which were concluded prior to April 1, 2014. As soon as few previous studies covered this issue, the research is aimed to assess the extent to which the Rules on Transparency are applicable and inevitable. By way of qualitative analysis of documents covering the transparency issue in investor-state treaties and arbitration was revealed that like the treaties concluded after April 1, 2014, which were automatically covered by the scope of application, the treaties made prior to that date were dropped out of the Rules on Transparency and the parties thereto have to express an explicit will to apply the Rules on Transparency. The Mauritius Convention designated to resolve this problem still requires a member state to join the Convention to make the Rules applicable to all treaties with such member state. On the other hand, both discussed documents provide the parties with options to avoid transparency in arbitration. Thus, despite increasing mandatory transparency in national legislations, the transparency of investor-state arbitration proceedings remains the matter of a good will of the parties. This study provides the foundation for stakeholders to conduct investor-state agreements as well as arbitration processes in line with transparency. The issue of transparency in investor-state agreements and arbitration processes in different countries can be illustrated in the following studies based on this study.