All parties in investment arbitration will need to adapt to new UNCITRAL rules on transparency — in force April 2014

By Dr David Buntenbroich

The confidentiality of arbitral proceedings is generally regarded as one of the key benefits of arbitration. However, in the area of investment arbitration, there appears to be an emerging trend towards increased transparency.

A major step towards more transparency is the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, which enter into force on 1 April 2014. Enhanced transparency in investment arbitration is also part of the European Union’s investment policy and is likely to be integrated in its future free-trade agreements, currently being negotiated with Canada and the US.

The UNCITRAL Transparency Rules were adopted by the United Nations Commission on International Trade Law on 11 July 2013. They will apply to investor-state arbitration initiated under the UNCITRAL Arbitration Rules pursuant to an investment treaty concluded on or after 1 April 2014 unless the parties to the treaty have agreed otherwise. They will also apply to investor-state arbitration pursuant to investment treaties concluded before 1 April 2014 if the parties to the arbitration or the parties to the investment treaty have agreed to their application after 1 April 2014. Further, if the UNCITRAL Transparency Rules apply pursuant to a treaty or to an agreement by the parties to such treaty, it is generally not possible for disputing parties to derogate from them. Finally, the UNCITRAL Transparency Rules are also available for use in investor-state arbitration under rules other than the UNCITRAL Arbitration Rules as well as in ad hoc proceedings…

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