Abstract
he values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration. Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings. The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them. There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.It is in this connection that this article makes an in-depth analysis of how investment arbitration frameworks have approached the questions of transparency, confidentiality and amicus curiae participation over the years. The article assesses and explores similar issues within the International Convention on the settlement of investment disputes between States and nationals of other States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis of celebrated cases falling within each category. The article further elaborates the transparency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based InvestorState Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.
Highlights
Transparency is considered to be one of the key aspects of good governance and corporate social responsibility
Article 1126(13) requires that “public register of arbitration claims... be maintained by the NAFTA Secretariat.”9 it provides that publication of arbitral awards is possible only with the consent of the parties.10. In practice this provision is restricted only to the arbitration claims initiated against Mexico, as the other NAFTA members often resort to the publication of awards even without the consent of the parties
After analysing the relevant provisions and celebrated cases, we found that NAFTA Chapter Eleven arbitrations have taken a leading role in the matters of transparency and the acceptance of amicus briefs
Summary
Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. Confidentiality in international investment law means the evidence, claims, documents, counterclaims, any other information prepared for and exchanged during the course of arbitration, awards, and any other decisions cannot be disclosed to any third parties It restricts the participation of amicus curiae in the arbitral process.. There is debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them It is in this connection that this paper reiterates how investment arbitration frameworks have approached questions of transparency, confidentiality and amicus curiae participation over the years. Transparency touches on the feasibility of amicus curiae participation in investorstate dispute settlement proceedings, access to information and documents, and publication of investment arbitral awards. The earlier scenario of reduced public participation in investment arbitration changed after 1995 with civil societies strongly registering their participation in investment arbitration through amicus curiae submissions. This situation has led to the conducting of mandatory public review while drafting a new model BIT
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