The recent development in this area is connected to the global trend towards a higher degree of openness in such disputes, which can be seen, for example, in the recent amendment to the rules on investor-State arbitration under NAFTA. Based on the proposed changes, the notice of arbitration, as well as arbitration documents and decisions, will be published. The changes also concern the rules for handling third-party submissions and public hearing rules. For obvious reasons, the draft also includes exceptions to protect business secrets and other sensitive information.
The approved text is to be presented for assessment at UNCITRAL’s 46th session, which is to take place in Vienna in July 2013. The major issue yet to be clarified concerns whether the new rules will apply to investment treaties that were concluded before the rules were adopted. The draft currently contains three versions of the relevant article and will be subject to further discussions.
Member countries, however, are largely in favour of gradually introducing the transparency rules within new negotiations on investment protection. Nevertheless, even if adopted, the new rules will probably not become part of everyday practice all at once, even though UNCITRAL has stated it intends to appeal to the international community to keep any delays to a minimum.