Towards a New World for Investor-State Arbitration through Transparency

Abstract

Alfred Tennyson wrote in his stirring poem Ulysses, “Come my friends. 'Tis not too late to seek a newer world.” Commentators similarly have been calling for a type of new world for investor-state arbitration through greater transparency. The 2014 United Nations Commission on International Trade Law (UNCITRAL) Rules on Transparency represent a major milestone in realizing that new world, with the 2015 United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration (Mauritius Convention) following closely on its heels in terms of timing and content. It remains to be seen whether the Transparency Rules and the Mauritius Convention will achieve their desired goals of bringing genuine transparency to the field of investor-state arbitration, especially since strong forces oppose such changes. By identifying and analyzing the ways that states have incorporated—and more importantly, failed to incorporate—provisions on transparency in their international investment agreements prior to the Transparency Rules and the Mauritius Convention, this Article shows the progressive nature of these two instruments. Indeed, the main core of transparency in investor-state arbitration emerged in the context of the North American Free Trade Agreement (NAFTA) and has been further advanced by such states as Canada and the United States. However, what this Article identifies as the NAFTA acquis on transparency largely has not been adopted by many of the thousands of international investment treaties now in existence. By highlighting the flaws within the Transparency Rules and Mauritius Convention, this Article cautiously predicts that these instruments will not have the dramatic impact on investor-state arbitration that one might have hoped for in the future.