Published: August 2014
In a 2005 study on international commercial arbitration, UNCTAD predicted that the growth of investment treaty arbitration would have a significant impact on international commercial arbitration, but that the nature of that impact was not yet clear. That same year, Barton Legum, a former Chief of the NAFTA Arbitration Division in the Office of the Legal Adviser at the U.S. Department of State, attempted to identify investment treaty arbitration’s most significant contributions to international commercial arbitration. He singled out two areas: the way the arbitral community currently perceives the matter of confidentiality, and the impact of treaty arbitration awards on procedural issues. Nine years later, UNCTAD’s prediction has proven to be true: the growth of investment treaty arbitration has had and continues to have a significant impact on international commercial arbitration.
Part II of this article describes how, as Legum accurately predicted, the trend towards greater transparency in investor-state arbitration has called into question the traditional understanding of confidentiality in international commercial arbitration. Part II first looks at the traditional understanding of confidentiality. Against this background, it examines the trends towards greater transparency in investment arbitration. It then turns to the ongoing debate this drive towards transparency has prompted within the commercial arbitration community, and the recent changes adopted by the main institutional providers of commercial arbitration to yield additional transparency. Finally, it concludes by predicting that commercial arbitral proceedings will become more transparent, because over time, an increasing number of practitioners will find it “normal” to make information about proceedings more available.
With regard to Legum’s assertion regarding the influence of investment treaty arbitration on procedural issues, while it raises a series of interesting points, the impact is, the authors believe, less significant. Therefore, we will not address this assertion here.
*Solomon Ebere, an associate at a GAR30 international arbitration practice, serves as arbitration counsel in international disputes.
**Blerina Xheraj is a Research Assistance/PhD Candidate at the University of Geneva.