Transparency in Investor-State Arbitrations Through UNCITRAL

In October 2012, the United Nations Commission on International Trade Law (UNCITRAL) Working Group II on arbitration and conciliation (WG) met in Vienna to negotiate a legal standard on transparency in treaty-based investor-state arbitration. Argentina, Australia, Canada, Mexico, Norway, South Africa, and the United States were among the outspoken States supporting strong transparency rules. For other States, the process on transparency has been nothing short of a “revolutionary” step in arbitration history.

In 2013, UNCITRAL adopted new standards to increase transparency in treaty-based investor-state arbitrations. The changes are designed to increase public access to hearings and documents in arbitral disputes, which often have significant implications for environmental, health, and safety standards.

Unfortunately, UNCITRAL’s revised rules do not apply to already-established trade agreements unless the Parties explicitly agree to apply them. And even as we marked progress at UNCITRAL, in 2013, a panel of federal judges reversed three consecutive lower court decisions and upheld the US Trade Representative’s refusal to disclose a document laying out how the US would interpret critical language on investor rights under the failed negotiations for a Free Trade Area of the Americas. The decision ended a twelve-year legal effort by CIEL and Earthjustice to secure public release of the document. Increasing transparency in trade is not only vital to environmental protection, human rights, and social development, it is also a cornerstone of good governance in a modern democracy.

CIEL has been instrumental in bringing the issue of transparency to the forefront of UNCITRAL’s agenda. Working with NGO partners, CIEL has provided expertise throughout negotiation processes by intervening in discussions, preparing analysis of textual options, and proposing content for rules on transparency.

Increasing transparency in trade is not only vital to environmental protection, human rights, and social development; it is also a cornerstone of good governance in a modern democracy. CIEL will keep working until transparency and public participation are established as an indispensable component of international trade rules.

Update on Mauritius Convention on Transparency in Treaty-based Investor-State Arbitration