A Critical Opportunity for Transparency in Investor-State Disputes as Government Delegations and Arbitration Experts Meet in New YorkNathalie Bernasconi-Osterwalder
Country delegations to the United Nations have a critical opportunity to bring much-needed transparency to international arbitrations between foreign investors and host governments in discussions to be held on February 6-10, 2012 in New York.
In 2008, it looked as though the arbitration rules developed in 1976 by a United Nations body, the United Nations Commission on International Trade Law (UNCITRAL), might be revised to address the lack of transparency in arbitration proceedings under the rules. Many developing (and several developed) states stressed the importance of increasing transparency, which led to a decision by UNCITRAL member governments to prepare a legal standard to ensure transparency in investor-state arbitrations. The Working Group on International Arbitration and Conciliation of country delegations was mandated to create the new rules.
Four years later, the Working Group is close to finalizing its work on a set of new arbitration rules on transparency. Unfortunately, there is a great risk that some delegations will try to impede true progress by adopting superficially improved rules on transparency but ensuring that they will not be applied in practice.