Transparency in Investor-State Arbitration: Where Does Asia Stand?
The Asian Turn in Foreign Investment (C Brown & M Mohan eds.) (Cambridge University Press 2018, Forthcoming)
16 Pages Posted: 31 Aug 2018
Date Written: March 1, 2018
Historically the resolution of claims under investment treaties has been confidential and private. Over the past fifteen years, however, there have been changes that require greater transparency in the arbitration of disputes between investors and states under investment treaties. The development with the potential to effect the greatest change in this regard is the recent work of the United Nations Commission on International Trade Law (‘UNCITRAL’), through its promulgation of new Rules on Transparency in Treaty-based Investor-State Arbitration (‘Rules on Transparency’) and a Convention designed to give those rules wide application over existing investment treaties (the ‘Mauritius Convention’). This chapter outlines the drivers of change regarding transparency in investor-state arbitration and asks critically about the role of Asian states in this process. While Asian states have been active in the development of treaty policy in a variety of substantive and procedural areas, with respect to developments on transparency Asian states have been ambivalent at best. In the UNCITRAL negotiations, Asian states expressed considerable doubts about both the need for the Rules on Transparency and the Mauritius Convention. This chapter considers the arguments raised in that context, as well as current Asian state practice, and suggests that the unwillingness of states in Asia to undertake transparency obligations generally, may severely curtail the promise of UNCITRAL’s work.
Keywords: transparency; investor-state arbitration; asia; uncitral; mauritius convention
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