Transparency in the Resolution of Investor-State Disputes - Adoption, Adaption, and NAFTA Leadership

Abstract:     
In investor-state arbitration, transparency tends to refer to the extent to which the public may be alterted to, gain information about, and perhaps participate in, proceedings organized to adjudicate an investor's claim. The arbitration regime established under the North American Free Trade Agreement (NAFTA) Chapter Eleven has given rise to transparency policies of relative refinement and influence. The article examines the formation of these policies. The article begins by discussing distinctive features of both investor-state (investment treaty) claims and arbitration, examining the reasons that the two systems have become distinguishable on the questions of accessing information about and participating in an arbitration. Although transparency is not a given priority in international commercial arbitration, often pursuant to the preferences of the participants, there have been calls for states to establish a more transparent regime for resolving international commercial disputes. These interests can be balanced by adding some mechanism for transparency in the arbitral system, the simplest expedient for which is to publish the arbitrators' work, particularly their awards. The article outlines reasons favoring publication of awards: not only can they be used as educational tools, but they can also promote jurisprudential development and unification, settlements, equality of arms, and investor confidence. The article then outlines both the benefits and the disadvantages of making arbitration hearings open to the public. Next, it discusses how the role of amici, as the public's proxies, could possibly be expanded in international commercial arbitration proceedings. The article then provides a historical analysis of NAFTA's Chapter Eleven and some of the pivitol cases that have been brought under it, including Ethyl, Metalclad, Methanex, and United Parcel Service. It concludes by discussing the future of transparency and analyzing next generation transparency issues, especially those related to bilateral investment treaties (BITs) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).

Number of Pages in PDF File: 48

Keywords: arbitration, investor-state arbitration, NAFTA, investor, Chapter Eleven, investment treaty, transparency, international commercial arbitration, commercial, international, award, arbitral award, arbitration hearing, amici, bilaterial investment treaty, BIT, ICSID, convention

Accepted Paper Series