COMMENTS ON DRAFT RULES ON TRANSPARENCY IN INVESTOR–STATE ARBITRATION

The document argues that new transparency rules must avoid codifying the current secretive status quo and should ensure automatic, prompt disclosure of proceedings. It advocates for an 'opt-out' approach to maximize the rules' application to both future and existing treaties, while warning against broad tribunal discretion and 'opt-in' mechanisms that would limit openness. Specific recommendations include the mandatory publication of notices of arbitration, all tribunal documents, and final awards, as well as the establishment of a central repository for public access.

• The authors argue that certain draft options would merely codify the existing non-transparent status quo by granting tribunals too much discretion to close proceedings from public view, citing the case of Biwater v. Tanzania as an example where tribunals removed arbitrations from public view despite significant public interest.
• The document warns that an 'opt-in' approach to the application of the rules would frustrate the goal of transparency by making non-transparent rules the default for future treaties, and that limiting the rules to treaties concluded after a specific date would exclude the majority of current investor–State arbitrations.
• The authors recommend that the notice of arbitration be automatically and promptly disclosed once received by the respondent, rather than waiting for the formation of a tribunal, to ensure transparency at the earliest stage of a claim.
• The document advocates for the mandatory publication of all documents submitted to or issued by the arbitral tribunal, arguing that an 'undue burden' exception is unnecessary in an era of electronic transmission.
• The authors support the prompt and automatic publication of all arbitral awards and the use of a central repository to prevent information from being scattered across various institutional or national websites.
• The document recommends that hearings be held openly by default and that, if closed for logistical or mandatory reasons, all non-confidential aspects of the hearing transcripts must be made public.
• The authors criticize the phrase 'integrity of the process' in Draft Article 7 as being overly broad and undefined, warning that it could be used as a 'catch-all' exception to justify restricting public access to information.
• The document suggests that tribunals should be permitted to accept and consider amicus curiae submissions from non-parties to provide specialized knowledge or expertise to the proceedings.

APA

International Institute for Sustainable Development (n.d.). COMMENTS ON DRAFT RULES ON TRANSPARENCY IN INVESTOR–STATE ARBITRATION. https://www.iisd.org/system/files/publications/uncitral_comments_draft_rules.pdf

Chicago

International Institute for Sustainable Development. COMMENTS ON DRAFT RULES ON TRANSPARENCY IN INVESTOR–STATE ARBITRATION. n.d. https://www.iisd.org/system/files/publications/uncitral_comments_draft_rules.pdf.

Wikipedia

{{cite press release |author=International Institute for Sustainable Development |title=COMMENTS ON DRAFT RULES ON TRANSPARENCY IN INVESTOR–STATE ARBITRATION |url=https://www.iisd.org/system/files/publications/uncitral_comments_draft_rules.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{internationalinstituteforsustainabledevelopmentndcomments, author = {{International Institute for Sustainable Development}}, title = {{COMMENTS ON DRAFT RULES ON TRANSPARENCY IN INVESTOR–STATE ARBITRATION}}, publisher = {International Institute for Sustainable Development}, url = {https://www.iisd.org/system/files/publications/uncitral_comments_draft_rules.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }