The United Nations Commission on International Trade Law (UNCITRAL) agreed to give priority to the revision of its arbitration rules in July 2006.1 The UNCITRAL Arbitration Rules have been in force since their adoption by UNCITRAL and the United Nations General Assembly in 1976. Over the last 30 years, the UNCITRAL Rules have inspired domestic legislation on arbitration and have been successfully used to resolve numerous private commercial disputes. More recently, they are increasingly being used in ways that were not anticipated by their drafters, for example in arbitrations pursuant to Bilateral Investment Treaties (BITs) that involve challenges to measures adopted by States in their sovereign capacity. In the current revision process, UNCITRAL faces the task of further strengthening its rules for commercial arbitrations while also accommodating the public dimensions involved in arbitrations brought by a foreign investor against a State under the terms of a treaty (“investor-State arbitrations”).
CIEL’s and IISD’s focus on the UNCITRAL Rules’ revision process is limited to arbitrations brought by an investor against a State under the terms of a treaty; and our specific interest is on improving the rules on public notice of the proceedings, access to documents, open hearings, and amicus curiae briefs in respect of such arbitrations. This focus stems from the fact that investor-State arbitrations virtually always implicate the public interest in ways that private commercial arbitrations typically do not. This fundamental difference between investor-State arbitrations and commercial arbitrations has direct implications for the conduct of the arbitration, and the UNCITRAL Rules can easily address this difference by introducing language to four provisions, namely articles 3, 15, 25 and 32.
This paper begins by explaining the public interest difference between investor-State arbitrations and private commercial arbitrations. It then discusses how the UNCITRAL Rules can address this difference, whilst further strengthening the significant contribution of the UNCITRAL Rules to the resolution of commercial disputes and the development of economic relations. It ends with specific textual suggestions as to how this can be simply achieved, without disruption to the arbitral process.