11 - The application of transparency

Summary

11.1 Introduction

1. As the preceding chapters illustrate, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the Rules) were adopted following much consultation, deliberation and negotiation. In heralding their arrival onto the field of investor-State arbitration, UNCITRAL expressed with confidence that the Rules ‘constitute a robust, innovative set of procedural rules that will make arbitrations involving a State, initiated under an investment treaty, accessible to the public’. Yet when the Rules came into effect on 1 April 2014, they did not become immediately and universally applicable to all treaty-based investor-State arbitrations. Most notably, they did not dispose of the transparency mechanisms provided for in existing treaties and arbitration rules. Rather, for the time being at least, the Rules will coexist alongside arbitration rules utilised in, and other provisions governing, investor- State arbitrations.

2. In this chapter, we voyage through the paradoxically ‘murky territory’ of transparency to cast light on the likely application of the Rules in the context of investor-State arbitration. This includes consideration of when the Rules apply, when they might be invoked, when any such application or invocation might give rise to conflicts with existing arbitration rules and other provisions governing the arbitral proceedings, and how any such conflicts are to be resolved.

3. This chapter is comprised of three sections. In the first section, we outline the scope of the application of the Rules, noting the classes of investor-State arbitrations to which the Rules will apply, and might apply. In the second section, we summarise the duties imposed by the Rules on parties and arbitral tribunals alike. These first two sections are intended to bring together and provide an overview of the issues analysed in greater detail in the preceding chapters of this book. In the third section, we move on to consider when conflicts might arise between the Rules and other provisions governing the arbitration, namely the applicable arbitration rules, the treaty pursuant to which the arbitration was initiated, and the laws applicable to the arbitration; and analyse how any such conflicts might be resolved.