On 7 July 2016, the UNCITRAL Commission adopted a revised and updated version of the UNCITRAL Notes on Organizing Arbitral Proceedings. The 2016 Notes replace a 1996 edition, and aim to flag procedural issues typically associated with arbitral proceedings. They include guidance on matters such as the language(s) of the proceedings, confidentiality and transparency, and…

by Esmé Shirlow (Assistant Editor for Australia & New Zealand)   Gabriele Ruscalla has recently observed that “transparency has become a fundamental principle in international adjudication”. The transparency paradigms governing different types of international adjudication are, however, far from uniform. Discussions of transparency in international arbitration typically begin, for example, from a distinction between commercial and investment treaty disputes. As Cristoffer Nyegaard Mollestad explains…

by Sonja Heppner, Trinity College Dublin, School of Law The text of the proposed Trans-Pacific Partnership (‘TPP’) as agreed upon between the United States and Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam on 5 October 2015 provides for public arbitral hearings. The approach taken by the prospective signatories of…

On 17 March 2015, the UN Convention on Transparency in Treaty-Based Investor-State Arbitration was opened for signature. So far, nine countries have signed the treaty (among them, Canada, France, Germany, the United Kingdom and the United States). The Convention will enter into force six months after the first three instruments of ratification have been deposited…

Transparency is one of the hot topics in international law. With governance functions increasingly shifting from the domestic to the international level, transparency is demanded, as Andrea Bianchi and Anne Peters show in their new seminal study, in order to compensate for the lack of a full-fledged international system of checks and balances. Transparency promises…

On this blog, I have previously (here and here) questioned existing practices for how arbitrators are selected and argued that a new approach is both necessary and long overdue. To briefly recap those previous posts, the selection of arbitrators is one of the most sensitive and critical moments in an arbitration. Arbitrators not only decide…

It has been over two years since the DC Circuit Court of Appeals (“Circuit Court”) vacated an award in a bilateral investment treaty arbitration (BG Group PLC v. Republic of Argentina (UNCITRAL)) concluding that the panel did not have authority to adjudicate the dispute because the claimant had not satisfied a pre-arbitration requirement, namely, litigating…

On 11 July 2013, the United Nations Commission on International Trade Law (“UNCITRAL”) adopted new Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules”), which will come into effect from 1 April 2014. The new rules provide for public access to documents generated during treaty-based investor-state arbitrations (but not commercial arbitrations) brought under the…

Readers of this blog may be interested to know of an opportunity to participate in the creation of a forthcoming special issue of Transnational Dispute Management (TDM), entitled “Reform of Investor-State Dispute Settlement: In Search of A Roadmap.” Co-edited by myself (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret…

Transparency of investment treaty arbitration is back on the radar this week as delegations convene in Vienna for the latest meeting of the UNCITRAL Working Group II on Arbitration and Conciliation. While governments debate the scope and content of new transparency obligations, one issue that has received less attention is a sometimes-seen corollary of greater…

Monday’s New York conference on “Arbitration with States and State Entities under the ICC Rules” got me thinking about the possibility of amicus submissions in investment cases before the ICC or other institutions beyond ICSID. A few musings: Are amicus debates likely to arise in the ICC context? The answer is yes. Although most ICC…

On March 11, 2001, The New York Times published an article entitled “Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say.” It began, ominously: “Their meetings are secret. Their members are generally unknown. The decisions they reach need not be fully disclosed.” Over the ensuing decade, while NAFTA Chapter Eleven…

The views of lawyers involved in international commercial and investment arbitration are being sought for a new international arbitration survey from Queen Mary, University of London (QMUL). Conducted by QMUL’s School of International Arbitration and sponsored by White & Case LLP, the 2012 survey aims to examine whether a “harmonised international arbitration procedure is emerging,…

It’s been nearly two months since public hearings concluded in an ICSID arbitration brought by a U.S. investor, Railroad Development Corporation, against the Republic of Guatemala. And it’s been about 8 months since public hearings wrapped up in another ICSID arbitration between Pacific Rim and the Republic of El Salvador. Both proceedings were webcast online,…

As World Bank protests go, today’s was a pretty mild one. This afternoon, a group of labor and environmental activists huddled outside World Bank headquarters in DC to protest the on-going Pacific Rim v. El Salvador CAFTA arbitration, complete with a giant balloon of a sinister corporate-looking orange cat, an ensemble of guitarists, and panels…

This article provides a brief background on the provision allowing for non-disputing State Party participation under Chapter Ten of the Dominican Republic – Central America – United States Free Trade Agreement (CAFTA-DR), specifically Article 10.20.2, including the relationship between non-disputing State Party submissions and the transparency provisions of CAFTA-DR as well as the implementation of…

The OECD-hosted Freedom of Investment (FOI) Roundtable is in the process of finalizing a statement regarding the role of international investment in supporting the realization of countries’ green growth objectives.  The draft statement entitled “Harnessing Freedom of Investment for Green Growth” (Draft Statement) and three draft background consultation papers (Draft Papers) are available on the…

I spent yesterday at a Georgetown Law School conference on transparency and international arbitration. Ostensibly focused on arbitration writ large, the event tended to zero in on investor-state arbitration (and investment treaty arbitration more specifically). While various arguments were aired for and against transparency, I was struck (anew) by the extent to which the transparency…