The Mauritius Convention on Transparency: The Potential Impact on Canadian Investors
Investor-state arbitration has often come with the expectation that proceedings will remain private and confidential, resulting in the greater possibility of a de-politicized and evidence-based mechanism of dispute resolution. This method of dispute resolution is relevant today more than ever, as the forces of globalization drive increased foreign direct investment. Bilateral and multilateral investment treaties and contracts cross borders, impacting governments, foreign investors, citizens, and the environment. The confidential nature of investor-state arbitration is not universally applied, however, and it is often one of the criticisms lodged against the Investor-State Dispute Settlement (“ISDS”) regime.
The United Nations Commission on International Trade Law (“UNCITRAL”) has expressed the “importance of ensuring transparency in investor-state dispute resolution”.1 In 2013, the UNCITRAL Working Group II onArbitration and Conciliation (the “Working Group”) took steps to address public interest and concern for transparency by adopting the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (the “Transparency Rules” or “Rules”). The Transparency Rules require the dissemination of pleadings, orders, decisions and awards and facilitate the participation by interveners and non-disputing State parties.
This article is reproduced with permission of the publisher from the Commercial Litigation and Arbitration Review, Vol. 6, No. 3, August 2017.