A Critical Opportunity for Transparency in Investor–State Disputes as Government Delegations and Arbitration Experts Meet in New York

This IISD briefing discusses the February 6–10, 2012, meetings in New York where the UNCITRAL Working Group on International Arbitration and Conciliation aimed to finalize new transparency rules for investor-State disputes. The author warns that certain delegations are attempting to introduce provisions that would limit the application of these rules to future and existing treaties, potentially rendering the effort futile.

• There is a network of nearly 3,000 treaties allowing foreign investors to sue sovereign governments, often resulting in large financial sums. These disputes frequently involve public interest issues such as health regulations, environmental rules, judicial decisions, and responses to the global financial crisis.
• Many investor-State proceedings are conducted in secrecy because they rely on arbitration rules, such as those developed by the United Nations Commission on International Trade Law (UNCITRAL) in 1976, which were originally designed for private commercial disputes rather than those involving sovereign states.
• Following a 2008 decision by UNCITRAL member governments to create a legal standard for transparency, the Working Group on International Arbitration and Conciliation was tasked with developing new rules. By February 2012, this work was nearing completion.
• The author identifies a risk that some delegations, including some European states, are proposing language to prevent the new transparency rules from applying to existing treaties or future disputes, which would make the new rules irrelevant.

APA

Bernasconi-Osterwalder, N. (2012). A Critical Opportunity for Transparency in Investor–State Disputes as Government Delegations and Arbitration Experts Meet in New York. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/critical_opportunity.pdf

Chicago

Bernasconi-Osterwalder, Nathalie. A Critical Opportunity for Transparency in Investor–State Disputes as Government Delegations and Arbitration Experts Meet in New York. International Institute for Sustainable Development, 2012. https://www.iisd.org/system/files/publications/critical_opportunity.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |title=A Critical Opportunity for Transparency in Investor–State Disputes as Government Delegations and Arbitration Experts Meet in New York |publisher=International Institute for Sustainable Development |date=February 2012 |url=https://www.iisd.org/system/files/publications/critical_opportunity.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2012critical, author = {Bernasconi-Osterwalder, Nathalie}, title = {{A Critical Opportunity for Transparency in Investor–State Disputes as Government Delegations and Arbitration Experts Meet in New York}}, institution = {International Institute for Sustainable Development}, year = {2012}, month = feb, url = {https://www.iisd.org/system/files/publications/critical_opportunity.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }