Policy Analysis

Countries Continue to Pursue Efforts to Increase Transparency in Investor-state Dispute Settlement

By Lise Johnson on February 17, 2012

In New York last week, a large number of countries, both developed and developing, strongly supported concrete options to ensure transparency in investor-state arbitrations.

However, some delegations continue to actively block progress on these important efforts to improve UN arbitration rules.

A set of procedural rules commonly used to govern investor-state arbitrations was created by a United Nations body, the United Nations Commission on International Trade Law (UNCITRAL), in 1976. In 2008, in response to mounting concerns regarding how these arbitration rules developed by UNCITRAL keep investor-state arbitrations removed from public view, UNCITRAL took action to remedy the situation.

In particular, UNCITRAL formally agreed on the importance of ensuring transparency in investor-state dispute arbitrations and mandated a working group to draft a legal standard that would open those cases up to the public. The working group initiated its work on this issue in 2010, and had its fourth session on the topic during the week of February 6-10, 2012. During that meeting, draft arbitration rules on transparency were strongly supported by a large number of developed and developing countries. However, progress stalled after some countries who attended the working group's session insisted that disputes arising under existing treaties be exempt from the new transparency rules.

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