UNCITRAL’s Unclear Transparency Instrument: Fashioning the Form and Application of a Legal Standard Ensuring Greater Disclosure in Investor-State Arbitrations

Lee, Julie | January 1, 2013

Confidentiality in commercial arbitrations—a main feature of international arbitration—is highly coveted by companies that safeguard their reputation and proprietary information. However, secrecy may not be so sacrosanct to investor-State arbitrations involving economic disputes between sovereign States and private actors. Recognizing the different demands for transparency in purely private versus investor-State arbitrations, the United Nations Commission on International Trade Law (UNCITRAL) tasked a Working Group with drafting new transparency standards for incorporation into the existing set of UNCITRAL Rules. In addition to evaluating the merits of the desirability for increased disclosure in the arbitral process, this Comment focuses on the importance of the form in which these standards are drafted as well as the complexities surrounding the application of the standards to existing and future treaties. For over two years, the forms and applications of transparency standards were debated amidst a flurry of policy considerations. Rather than probing the content of the proposal that recently emerged from this debate, this Comment focuses on the policy considerations that went into drafting the new standards. This Comment further advocates for a form and application of the standards that best achieve the Commission’s objective in promoting greater transparency in investor-State arbitrations. Under such a rubric, party consent and autonomy should still be preserved and the application of new transparency standards should remain consistent with the approaches taken in the prior 2010 rule changes.