A notable feature of investment treaty arbitrations is that they nearly always concern issues relating to a State’s treatment of foreign investment and its exercise of public policy. Potential significant State liability may also arise pursuant to an award which goes against the State.
Unlike ICSID arbitrations, the UNCITRAL Arbitration Rules do not make it a requirement that a public record is made of the dispute, which has led to criticism on the grounds that this is contrary to the principle of transparency – a principle which all State functions and activities should be subject to. After more than two years of discussions, on 8 February 2013 the UNCITRAL Working Group II agreed on modifications to the UNCITRAL Arbitration Rules to ensure greater transparency to the arbitral process. These amendments are due to come into force once approval by the UNCITRAL Commission and the UN General Assembly has been obtained.
The main developments set out in the amendments are as follows:
All key documents in the arbitration will be published, including the Notice of Arbitration, all pleadings, transcripts and decisions and awards issued by the tribunal
Oral hearings for the presentation of evidence shall be open to the public (subject to the tribunal’s discretion to take steps to protect confidential information)
Details about the claimant and the respondent State will be posted on a public registry prior to the constitution of the arbitral tribunal
Non-disputing parties to the original investment treaty may make submissions, provided that any such submissions do not disrupt the proceedings or unfairly prejudice either parties
These rules will only apply to investor-State arbitrations initiated under the UNCITRAL Arbitration Rules pursuant to a recognised international investment agreement. They will not, for example, apply to commercial disputes referred to international arbitration under the UNCITRAL Arbitration Rules. However, the new transparency rules are not retrospective – they will only apply to a provision for UNCITRAL Arbitration Rules-based arbitration in an international investment agreement concluded after the transparency rules come into effect. In addition, the transparency rules maintain certain carve-outs with respect to confidential or protected information, including information that may compromise national security if released into the public domain.
Nonetheless, these changes represent an important alignment of the UNCITRAL Arbitration Rules with ICSID arbitrations, and once implemented will go a long way to answering criticisms that investment treaty arbitration is a “closed shop”. UNCITRAL investor-state arbitrations will be as open and transparent as court proceedings in some jurisdictions, such as the United Kingdom.