Nine Years Later: Investment Treaty Arbitration's Contribution to International Commercial Arbitration - ARIA - Vol. 25, No. 1 2014

Author(s): 

Solomon Ebere

Blerina Xheraj

Page Count: 

20 pages

Media Description: 

1 PDF Download

Published: 

August, 2014

Subscribe to download

PDF636.43 KB

$40.00

Add to cart

Description: 

Originally from American Review of International Arbitration - ARIA

Preview Page

I. INTRODUCTION

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.1 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.2 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.