Comments on Draft Rules on Transparency in Investor-State ArbitrationNathalie Bernasconi-Osterwalder, Lise Johnson
October 2011: From October 3-7, 2011, a working group of the United Nations Commission on International Trade Law (UNCITRAL) will meet in Vienna to continue work it began a year ago on how to ensure transparency in investor-State arbitration. At the end of its last session in February 2011, the working group had directed the UNCITRAL Secretariat to begin work on drafting proposed arbitration rules that reflected the options and issues discussed by the working group up to that point. In accordance with that instruction, the UNCITRAL Secretariat has produced a text containing draft arbitration rules that will likely serve as the basis for discussion during the upcoming October 2011 meeting. IISD and CIEL have reviewed the text, and are encouraged by a number of the options presented in it, as they would represent crucial steps forward in allowing public access to information regarding investor-State arbitrations. Some of the options, however, would either merely entrench the status quo where arbitrations can be shrouded in secrecy and out of the public view, or would even represent a step backward in terms of transparency. IISD and CIEL have produced a note summarizing their response to the proposed draft articles and noting which options are, and which options are not, consistent with the working group's task to ensure transparency in investor-State arbitrations.