Transparency In Investment Arbitration Research Articles

Javnost i tajnost arbitraže

It is very often heard that confidentiality is one of the principal advantages of arbitration. Nevertheless, confidentiality is not recognized as a general principle of arbitration and there are no provisions on confidentiality to be found in legal sources such as the New York Covention on Recognition and Enforcement of Foreign Arbitral Awards, or the UNCITRAL Model Law on International Commercial Arbitration. If arbitration is very often confidential, this comes from the nature of things rather than from hard and fast rules. This paper explores to what extent has confidentiality ceased to be the basic feature of arbitration in modern practice. The trend towards greater transparency has germinated mainly in the field of investment arbitration during the last two decades, but it had diffused accross international commercial arbitration. The UNCITRAL Rules on Transparency in Investment Arbitration are the result of that development that was driven by different forces and interests: those of arbitral institutions, arbitrators, legal counsel, non-governmental organizations, states and the general public. That development has enabled the system of quasi-precedent in investor-state arbitration and incited numerious challenges of arbitrators. It has informed the observers of gender and ethnic inequality prevailing in this line of legal business. Step by step, each segment of the arbitral procedure became open to the public in investor-state arbitrations: the names of the parties and the fact that the dispute is pending, the names of arbitrators and legal counsel, the arbitral award and the outcome of the dispute, procedural orders, memorials and exhibits, hearing and transcripts of the hearing. The things that would be just unheard of in the nineties, such as broadcasting of the hearing, started to happen in the new millenium. Influenced by this trend, the institutions predominantly operating in the field of commercial arbitration, such as the ICC, started revealing more of their own business. Although some of them, such as the LCIA still give great weight to confidentiality, it is generally difficult not to succumb in one way or another to the newest transparency trend, that is, like an irresistible force, changing the face of arbitration.

Transparency in Investment Arbitration: Its Importance for Japan

Transparency in Investment Arbitration: Its Importance for Japan

Current State of Transparency in Investment Arbitration: Progress Made But Not Enough

Current State of Transparency in Investment Arbitration: Progress Made But Not Enough

Participatory Aspects of Investor-State Dispute Settlement in the EU New Wavee Trade Agreements

This article will scrutinize the anatomy of the new EU Free Trade Agreements, in particular their chapters on the protection of foreign investment, from a transparency perspective. The article will put to test the claims that the dispute settlement mechanisms in the new wave treaties are sufficiently participatory and, in fact, are recognizably more transparent than their predecessors. Specific procedural standards related to confidentiality and privacy of proceedings shall be analyzed in the context of the push for transparency in investment arbitration, observable in recent years. Besides procedural guarantees of transparency, the article will also examine relevant substantive rules, directly affecting participatory aspect of dispute settlement (such as adopted definitions of investor, which determine the scope of actors who might become parties to the dispute). Furthermore, the paper will discuss the possible impact of an establishment of an investment court onto forum shopping strategies of the parties in the field of investment-related disputes, including internal forum shopping, as well as parallel proceedings utilizing different procedural mechanisms. In this context, lessons from other fields (in particular international commercial arbitration), related to procedural standards of transparency in cases in which public interest is present, will be highlighted. A recurring proposal of establishment of a global permanent appellate court for investment and commercial arbitration (to review awards in cases in which public interest is involved) will also be invoked.

Transparency Rules and the Mauritius Convention: A Favourable Haircut of the State’s Sovereignty in Investment Arbitration?

This paper investigates whether the United Nations Commission on International Trade Law (UNCITRAL) Transparency Rules on treaty-based investor-state arbitration (Transparency Rules) increases transparency in investment arbitration fairly for all the participants. The hypothesis is that the Transparency Rules and the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention), work together as a mechanism that is more favourable for the host states than for the investor, and thereby anticipate the different roles of all participants in treaty-based arbitration. Transparency brings pressure for a level playing field among disputing parties. In Detroit International Bridge Company v Government of Canada, UNCITRAL, PCA Case 2012-25, the tribunal accepted the prevalence of the in camera obligation in the procedural rules upon a general treaty obligation, and against the state’s arguments. In Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, PCA Case 2012-12, the tribunal accepted Australia’s need to disclose certain information under their national laws, but to exclude confidential business information as determined by the arbitral tribunal. Other decisions exist in which tribunals decide similarly. This paper explores the actual principle of equality as applied by arbitral tribunals. Thereafter, it considers the legal nature of transparency under the Transparency Rules, standing alone and in combination with the Mauritius Convention. It concludes by determining how this discretion affects the level playing field of all the participants.

DEMOCRATIC DEFICIT OF INVESTMENT ARBITRATION IN THE VIEW OF RULES ON TRANSPARENCY AND MAURITIUS CONVENTION ON TRANSPARENCY

This paper presents and analyzes the concept of transparency in investment arbitration, recognized by the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration and Mauritius Convention on Transparency in Treaty-based Investor-State Arbitration in the perspective of democratic principles of public participation, legitimacy and accountability. It holds that, transparency of investment arbitration endorsed by these documents constitutes a next step in the process of democratizing investment arbitration, contributes to the increase of democratic principles and cures the alleged democratic deficit of Investor— State arbitration.

Transparency Rules and the Mauritius Convention: A Favourable Haircut of the State's Sovereignty in Investment Arbitration?

This paper investigates whether the United Nations Commission on International Trade Law (UNCITRAL) Transparency Rules on treaty-based investor-state arbitration (Transparency Rules) increases transparency in investment arbitration fairly for all the participants. The hypothesis is that both together work as a more favourable conflict of laws for the host states than as an independent international transparency obligation. Several tribunals have accepted third persons' submissions; for instance, the North American Free Trade Agreement’s (NAFTA) Free Trade Commission declared disputes accessible and freedom of information acts established duties to inform the public. After this success for a civil society, since 2006, civil society lobbied for transparency at UNCITRAL. In 2013, this commission adopted the Transparency Rules and successfully suggested that the United Nations General Assembly adopt the UN Draft convention on transparency in treaty-based investor-state arbitration (Mauritius Convention). Transparency brings pressure for a level playing field among disputing parties. In Detroit International Bridge Company v Government of Canada, UNCITRAL, PCA Case 2012-25, the tribunal accepted the prevalence of the in camera obligation in the procedural rules upon a general treaty obligation and against the state’s arguments. In Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, PCA Case 2012-12, the tribunal accepted Australia’s need to disclose certain information under their domestic laws but to exclude confidential business information as determined by the arbitral tribunal. Other decisions exist in which tribunals decide in one or the other direction, re-shaping the level playing field. Over all, tribunals seem to increasingly consult the disputing host state's freedom of information act irrespective of their seat. The adoption of the Transparency Rules seems to constitute this principle and the Mauritius Convention emphasises the legitimacy of the Transparency Rules. This paper investigates the actual principle of equality as applied by arbitral tribunals. Thereafter, it considers the legal nature of transparency under the Transparency Rules standalone and in combination with the Mauritius. It outlines the content and its reference to freedom of information acts. It concludes by determining how this discretion affects the level playing field of all the participants.

Sustainable Investment Through Effective Resolution of Investment Disputes — Is Transparency the Answer?

In investment arbitration, procedural rules that incorporate broad transparency provisions subject both sides of an investment dispute to public scrutiny and, as a consequence, establish an equitable and sustainable framework for investors to seek a remedy against respondent-states. In this day and age, procedural transparency in investment arbitration cannot be ignored. The article draws on the arguments advanced by various non-profit organizations, primarily in North-America, demanding public accountability in investment arbitration. The article deduces three pillars that support investors’ needs in resolving investment disputes against respondent-states. First, broad procedural rules facilitate the enforcement of an award since transparent procedural principles are already incorporated in the ICSID Arbitration Rules, which incidentally also offer, pursuant the ICSID Convention, the most favorable framework for enforcement of awards against a state. Second, relying on such transparent procedural rules enhances the level of credibility that is necessary for the enforcement of a foreign award, which leads to the third point — that of justification — inherent in the public relations benefits that mirror the resolve of the investment arbitration proceedings. The article contextualizes these pillars through a review of the dispute resolution mechanisms in the three major model investment agreements, which reveal that the sustainable framework, despite the difficulty of implementing it, is shaped by transparent procedural rules that are no longer an aspiration but a reality.

Current Use of the UNCITRAL Arbitration Rules in the Context of Investment Arbitration

UNCITRAL Arbitration Rules play their part in international investment arbitration; between 20 to 30 per cent of the publicised investment cases are conducted under these Rules. NAFTA and many bilateral investment treaties provide an option for arbitration under the UNCITRAL Rules. In light of ongoing work for the revision of the Rules, it is time to reconsider their suitability for the special needs of investment arbitration and to ask whether the revision of the Rules should include special provisions in this respect. In the discussion on the specific needs of investment arbitration, much attention was paid to the question whether and to what extent transparency of the proceedings should be established in investment arbitration. An overall appraisal of the suitability of the Rules for investment claims must include other aspects as well, not to forget that, in contrast with ICSID arbitration, in UNCITRAL investment arbitration the role of state courts in enforcement and annulment procedures comes into play. A review of recent arbitral and court decisions relating to UNCITRAL investment arbitration shows that UNCITRAL investment arbitration is still an attractive alternative to ICSID arbitration. Decisions under the UNCITRAL Rules have given answers to key issues of transparency in investment arbitration. These decisions have achieved a balance between the interests of those who wanted to open the proceedings to non-disputing parties and the public, on the one hand, and the interests of the parties to have an efficient dispute settlement without undue delay, extra costs and lack of confidentiality, on the other, on the basis of a flexible interpretation of article 15 of the Rules on the power of the tribunal, and article 25(4) on confidentiality. The decisions may serve as an inspiration for the amendment of the Rules and, if such amendment is not carried out, they will give guidance in future UNCITRAL arbitration proceedings involving investment claims.

Are Amici Curiae the Proper Response to the Public's Concerns on Transparency in Investment Arbitration?

AbstractIn the context of investment arbitration, amici curiae have for a long time been quite unheard of. This can easily be explained by the privacy of international arbitration, which implies that only directly involved parties can participate in the proceedings. Several recent decisions have, however, brought renewed attention to the issue of amici curiae intervention in investment arbitration.