Originally from European International Arbitration Review (EIAR)

I. Introduction

The proliferation of bilateral investment treaties is well documented.1 The rise in foreign investment has also seen the evolution and increased use of insurance of investment risk, specifically political risk insurance.2 There are various facets to the interplay between investment insurance and international investment arbitration. This article considers circumstances in which the insured party institutes investment arbitration proceedings and the insurer is not a party to the arbitration.3 What is the role of the insurer in this context? Is there scope for its participation? The insurer may have documents the respondent State would consider relevant and wish to access (for example, documents relevant to the valuation of an investment). Can the State obtain those documents? Conversely, what information relating to the arbitration can be disclosed to the insurer?

These questions highlight the tensions in international investment arbitration between confidentiality and privacy on the one hand and, on the other, the increasing call for transparency and access of third parties. This is a tension very much at the forefront of current arbitral practice as demonstrated by the recent study of the Working Group II (Arbitration and Conciliation) of the United Nations Commission on International Trade Law (UNCITRAL) on transparency in investment treaty arbitrations (“the UNCITRAL Working Group”).4