As the au rolls out its plan, this is an important moment for africa to take stock of the current situation. Sep 18, 20 new uncitral arbitration rules on transparency. United nations convention on transparency in treatybased investorstate arbitration preamble arties to this convention,the p recognizing the value of arbitration as a method of settling disputes that may arise in the context of international relations, and the extensive and wideranging use of arbitration for the settlement of investorstate. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap. For instance, the icc secretariat publicizes synthesis of awards in the. Neither the knowledge hub nor content hosted on it should not be considered as representative of the commission or transparency internationals official position. Publication of international adjudication decisions and. Transparency in international commercial arbitration by. International trade law rules on transparency in treatybased investorstate arbitration and arbitration rules as revised in 2010, with new article 1, paragraph 4, as adopted in 20 the general assembly, recalling its resolution 2205 xxi of 17 december 1966, by. International arbitration is a commonly preferred means of resolving international disputes, including investorstate disputes arising from the north american free trade agreement and international commercial disputes arising from private contracts. How far should transparency in international commercial arbitration go. A redefining moment for africa transparency international.
An overhaul of the approach to confidentiality in international commercial arbitration requires reexamining deeprooted practices in the area of privacy. Lcia arbitration rules 2014 london court of international. In 2015, an icc task force examined over 300 awards from various institutions to provide users with an insight into differing practices and trends in cost allocation across institutions. More transparency in international commercial arbitration is.
Uncitral rules on transparency in treatybased investor. Broadening the transparency trend in international arbitration introduction he debate regarding the importance of transparency versus privacy and confidentiality in international arbitration1 is at a crossroads. Jan 31, 2020 the scope of the uncitral rules on transparency is restricted to investorstate arbitration, but its impact has led to appeals for greater transparency in international commercial arbitration. In the last decades, transparency has become a fundamental principle in international adjudication. Claims by investors against a sovereign state have far greater political and public interest implications, so arguments for greater transparency in that type of international arbitration may not necessarily apply or may be of lesser significance to commercial disputes.
Transparency in international arbitration striking the. The anticorruption knowledge hub is operated by transparency international and funded by the european union. International arbitration and transparency cambridge compendium of international commercial and investment arbitration a. The article begins by examining why confidentiality is thought to be valuable in international arbitration. Swedish law and arbitration arbitration institute of the. As will be shown herein, this presumption is justified because the benefits of greater transparency in arbitration brought about by the publication of awards often outweigh concerns for confidentiality. This phenomenon is well illustrated by the current negotiations on investment and trade treaties such as the euus transatlantic trade and investment. The uncitral rules on transparency in treatybased investorstate arbitration the rules on transparency, which come into effect on 1 april 2014, comprise a set of procedural rules that provide for transparency and accessibility to the public of treatybased investorstate arbitration. Given continued criticism that the arbitration process is opaque the international chamber of commerce icc court has made enhancing its transparency and perhaps its predictability a point of priority in the past three years. The rules on transparency apply in relation to disputes arising out of treaties concluded. Recently, however, these proposals have taken on a greater. The varied treatment that confidentiality in international commercial arbitration has received in different jurisdictions has signaled a clear need to find an appropriate balance between confidentiality and transparency. It is usually defined as including concepts such as public access and disclosure of documents or information.
United nations convention on transparency in treatybased. Businesses facing international disputes have an increasing range of options to resolve them beyond national courts in the us and the uk. Over the past 15 years, a significant transparency gap has developed between the investment treaty arbitration and international commercial arbitration regimes. James hope, partner at vinge in stockholm, sweden, outlines institutional approaches to transparency and asks if increased openness undermines arbitral confidentiality.
This essay argues that the need for increased transparency in international commercial arbitration ica must be evaluated from the viewpoint of the consumers of ica, namely the disputing parties. On april 1, 2014, the groundbreaking rules on transparency in treatybased investorstate arbitra. Jan 22, 2009 buys, cindy galway, the tensions between confidentiality and transparency in international arbitration may 20, 2003. Plowman, from 1995, is often perceived as the milestone for opening the discussion about the status of confidentiality in international arbitration. Buys, cindy galway, the tensions between confidentiality and transparency in international arbitration may 20, 2003. Perus recent amendments to its law governing arbitration where the state is a party reflect a growing international trend toward arbitral transparency and prohibiting individuals from playing. Consistency, efficiency and transparency in investment treaty arbitration report 2018 3 summary of the 2016 report the 2016 report provided a useful reference point for areas identified by stakeholders as needing reform. For example, the uncitral rules on transparency in treatybased investorstate arbitration uncitral rules on transparency may be applied to an icsid case by agreement of the state parties to an investment treaty or by agreement of the disputing parties, and icsid may be designated to act as the repository of case documents see e. More transparency in international commercial arbitration.
Kwm how far should transparency in international commercial. Consistency, efficiency and transparency in investment treaty. The reasoned awards would allow the judiciary to gauge the regulatory interests and the general publics stake more clearly. There is a notable discrepancy in the treatment of transparency and public access in international commercial arbitration given that the former is often seen as an imperative while the latter is seen as expendable. Arbitration and transparency relations between a private. This in depth commentary analyses the uncitral rules on transparency in treatybased investorstate arbitration, one of the most recent and innovative developments in international law. This article begins by contrasting privacy and transparency and highlighting the need for transparency in international commercial arbitration. It is suggested that transparency in international commercial arbitration could further be improved by making rendering awards with reasons necessary.
Increased transparency is supported by two arguments. In july 20, the united nations commission on international trade law uncitral adopted a package of rules aiming to ensure transparency in investorstate arbitration the rules on transparency, ratifying the work done by delegations to uncitralcomprised of 55 member states, additional observer. To access the articles in this issue, you will need to sign in using your iba username and. Consistency, efficiency and transparency in investment. Transparency in international investment arbitration edited. Confidentiality and transparency icsid convention arbitration.
Unctad series on international investment agreements ii executive summary the aim of this paper is to update the first edition of unctads pink series paper on transparency. The tensions between confidentiality and transparency in. Since then, the debate has been also focused, among scholars, to commercial arbitration. Transparency in international commercial arbitration catherine a. The absence of a cohesive approach renders the practice of confidentiality in international commercial arbitration progressively more unpredictable. The case for the publication of arbitration awards was made thirty years ago by julian d. Dispute resolution international articles are now available online to members of the arbitration, consumer litigation, litigation, mediation and negligence and damages committees. Potential for publication beyond institutional control. Introduction commentators and scholars have long been making the case for expanding transparency in the international commercial arbitration system. Transparency in international investment arbitration the topic of transparency in international investment arbitration is gaining increasing attention. Arbitrator intelligence is a collaborative effort and its growing community includes members from more than 170 jurisdictions.
The iba guidelines for drafting international arbitration clauses. By emily cossgrove and acacia hosking the recent release of the 20172018 annual asiapacific report on investorstate dispute settlement and transparency serves as a reminder of how transparency has become an accepted feature of investorstate arbitrations. The lazareff le bars team warmly congratulates amy seow on placing first runnerup in the young singapore international arbitration centre ysiac essay competition 2017, from a record number of 73 entries received from 25 jurisdictions. How peru embraced transparency in arbitration law360. Third, the paper will deal with the growing tendency to codify standards in international arbitration. This indepth commentary analyses the uncitral rules on transparency in treatybased investorstate arbitration, one of the most recent and innovative developments in international law. During the revision of the uncitral arbitration rules, the need of an higher level of transparency emerged, more specifically for treatybased investorstate arbitration. Examining confidentiality in the light of governance requirements in international investment and trade arbitration, 87 p hil. Recent trends in international arbitration transparency transparency vs.
Apr 12, 2018 the icc international court of arbitration icc court has recently led the charge by implementing a number of holistic transparency measures. Transparency in international commercial arbitration. Transparency in iias unctad series on international. Christina knahr, mpa harvard is research assistant at the department of european, international and comparative law at the universtity of vienna. Transparency in international investment arbitration. Once upon a time, arbitration was praised for its confidentiality. This years theme for the au is winning the fight against corruption. Preamble where any agreement, submission or reference howsoever made or evidenced in writing whether signed or not provides in whatsoever manner for arbitration under the rules of or by the lcia, the london court of international arbitration, the london court of arbitration or the london court, the parties thereto shall be taken to have. The tensions between confidentiality and transparency in international arbitration. International commercial arbitration ica has achieved considerable success as a highly efficient mechanism employed in the resolution of transnational business disputes. The newly released corruption perceptions index cpi provides a good baseline for the african union au anticorruption efforts in 2018.
Uncitral abitration rules with new article 1, paragraph 4. Transparency, third party participation and access to documents in international investment arbitration christina knahr dr. International trade law rules on transparency in treatybased investorstate arbitration and arbitration rules as revised in 2010, with new article 1, paragraph 4, as adopted in 20 the general assembly, recalling its resolution 2205 xxi of 17 december 1966, by which it established the united nations commission on. Pdf confidentiality and transparency in international. Transparency, third party participation and access to. Uncitral rules on transparency in treatybased investorstate.
Transparency international knowledge hub knowledge hub. The core thesis of this book is that transparency will enjoy a leading role in investorstate dispute settlement in the forthcoming years. International arbitration and transparency by mark feldman. More transparency in international commercial arbitration is a good thing 1. Confidentiality the australian high courts decision, esso australia resources ltd. Adopted the rules on transparency in treatybased investorstate arbitration2 and amended the arbitration rules as revised in 2010 to include, in a new article 1, paragraph 4, a reference to the rules on transparency,3 noting also that the rules on transparency are available for use in investorstate arbitrations initiated under rules other. Oct 12, 2016 it also evidences the importance arbitration community attaches to the need to promote transparency in international commercial arbitration. The topic of transparency in international investment arbitration is gaining increasing attention. The rise of transparency in international arbitration. But modern trends are in favour of transparency and openness.
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