Transparency in Investor State Arbitration

Abstract

International trade and investment agreements have become the most recent battleground for the apparently conflicting views the arbitration community and civil society have on confidentiality and transparency. This article aims to clarify the debate and, exploring the concept of confidentiality in international commercial arbitration, explain the rationale for the increased transparency in Investor State Dispute Settlement (ISDS). It gives specific consideration to the rules of major institutions and their national legal environments while also considering the practical differences between investor state and commercial arbitration. In this light, the increasing trend for transparency in ISDS, codified by the 2013 UNCITRAL Transparency Rules, are argued not only to be acceptable but intelligent, considered changes which adroitly balance current public policy demands within the existing norms of commercial arbitration.