Part III Procedural Issues, Ch.19 Procedural Transparency

Subject(s):

Procedural orders — Confidentiality and privilege — Transparency — Equal treatment — NAFTA (North American Free Trade Agreement) — Arbitration — UNCITRAL Model Law — Appointment of arbitrator — Choice of law — Recognition and enforcement

This chapter examines the transparency and public participation opportunities that should be provided at each stage of the arbitral process to ensure that (a) the public is appropriately informed and (b) information, perspectives, and arguments provided by the public can appropriately be considered by arbitral tribunals. Section 1 briefly describes the increasing use of arbitration in investment disputes (both disputes between States and disputes between investors and States); the process of arbitration in the context of international investment; and the different arbitral rules and institutions typically used or available for investment arbitrations, including the institution's rules and practices regarding transparency and public participation and including how these issues have been handled under the North American Free Trade Agreement (NAFTA). Section 2 examines the issue of transparency in investment arbitrations, discussing how the courts of several countries have dealt with the related issues of privacy and confidentiality in arbitration; the role of transparency in international investment arbitration disputes; various arbitral tribunals' consideration of transparency; and the advantages and disadvantages of transparency at the different stages of the arbitration proceedings, drawing in part on the experience of trade dispute settlement mechanisms. Section 3 addresses the practical role of public participation in the proceedings by way of pleadings and other submissions from non-arbitrating parties and the tribunal's obligation or discretion to accept such submissions, including consideration of the advantages and disadvantages of public participation and the means of improving public participation. Finally, the chapter presents very brief conclusions with respect to transparency and public participation in investment arbitrations.