The role of the UNCITRAL rules on transparency in enforcing societal control over investment treaties

Abstract

In order to improve the transparency principle in the arbitral process of the investment treaties, and to enable the public to know how the arbitration case proceeds, the United Nations Commission on International Trade Law (UNCITRAL), adopted, at its 46th session (8–26th of July 2013), the UNCITRAL Rules on Transparency in Treaty-Based Investor-State (UNCITRAL, 2014). This raises an important question about the extent to which these rules contribute to strengthening public oversight over arbitration processes. The study assesses these rules through the analytical method, by analyzing those rules, and clarifying the extent of their contribution to expanding the scope of public control over arbitration processes. The study shows that the basic principle in determining confidential or protected information that is withheld from the public and excluded from transparency is the consent of the treaty parties. Whenever the treaty parties agree to consider certain information as confidential, it is considered so and it may not be made available to the public. The study recommends expanding the scope of transparency by granting the arbitral tribunal the right to decide, after consulting with the arbitrating parties, that certain documents or information are confidential or protected.