Procedural Issues in an Arbitration: Disclosure

Introduction

Investor–state arbitration has seen tremendous growth in the past 50 to 60 years. Since the introduction of the International Centre for Settlement of Investment Disputes (ICSID) Convention in 1966, there has been a dramatic increase in the number of cases, with 58 ICSID arbitration cases registered in 2020.[2] In total, over 1,000 investor–state arbitration cases (ICSID and otherwise) have been reported to have been initiated.[3]

With such growth also came the backlash against investor–state dispute. Several states have denounced the ICSID Convention or announced that they will terminate their bilateral investment treaties.[4] The idea of a standing ‘investment court’ system has been introduced and implemented in several investment treaties to replace ad hoc investor–state arbitration tribunals.[5] The main arguments against investment arbitration were the lack of transparency in arbitral proceedings and the tribunals’ decisions or awards, the inconsistency in the awards from different arbitral tribunals and the doubt regarding legitimacy of the system.

In many ways, the backlash stems from the procedural aspects of investment arbitration. In the infancy of investor–state arbitration, the rules of international commercial arbitration, as the default form of ‘arbitration’, were adopted without much thought as to whether they would be appropriate. One of the main features of international commercial arbitration that separates it from domestic court litigation is the flexibility to set procedural rules, the efficient resolution of the dispute by limiting challenges to the decision, and the confidential and private manner of the proceedings. Unlike international commercial arbitration, however, investment arbitration is not a purely private dispute; the respondent is a sovereign state and the dispute usually involves the public sector or regulation, or both. The tension between the public nature of investor–state disputes and the private nature of dispute resolution through arbitration is something that the arbitration community needs to work on to ensure that investor–state arbitration remains a widely accepted dispute resolution mechanism. Indeed, in many ways the procedural rules of investment arbitration have evolved to address the concerns of this backlash and should continue to do so.

In this chapter, we explore the following procedural issues in investment arbitration: how tension has brought forth the push for transparency in arbitration proceedings and awards as well as intervention by third parties, and the resulting changes in arbitration rules and investment treaties, and decisions from arbitral tribunals; we also discuss how document production practice in investment arbitration cases mirrors and departs from that in international commercial arbitration through reference to the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration (the IBA Rules); finally, we explore how recent developments (i.e., the covid-19 pandemic) have affected investment arbitration hearing formats.

Document production

Document production serves as an important opportunity for parties to gather relevant documents that may be in the other party’s possession, custody or control. Document production becomes more important when there is an imbalance of information or evidence between the parties. Because an investor–state arbitration is a dispute between an investor and the host state, there is often an inherent imbalance of information. Therefore, document production is often a critical procedural issue in investor-state arbitration.

Arbitration rules or guidelines on document production

As with any other procedural issue in arbitration, the parties to investor–state arbitration can agree on whether to have document production and if so, the scope and process of that document production. However, investment treaties generally do not contain detailed procedural rules on document production; neither do the most commonly used rules in investment arbitration, such as the ICSID Arbitration Rules and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules. The arbitration rules simply provide the tribunal with the authority to call upon the parties to produce documents or other evidence,[6] and for the parties to cooperate with the tribunal in the production of these documents.[7]

Because the investment treaties and the arbitration rules do not contain detailed procedural rules on document production (or whether this needs to be conducted), these matters would have to be agreed between the parties or determined by the tribunal through procedural orders. However, it is often difficult for parties to agree on the scope and process of document production due to the vast differences of each country’s practice, especially between common and civil law jurisdictions.

Accordingly, investment arbitration tribunals often rely on the IBA Rules, which also include provisions on document production.[8] The IBA Rules purport to be an exemplary ‘harmonisation’ of the procedures used in different jurisdictions.[9] While the IBA Rules when first introduced were intended to apply to international commercial arbitration, they can also be applied to investment arbitration.[10] Considering the abundance of materials on the IBA Rules and their interpretation (for example, on the interpretation of the standard of ‘relevance and materiality’), we do not discuss the IBA Rules in detail here.

The principle of equal treatment in document production and ‘state secrets’

The question arises, however, as to whether the same standards applied in commercial arbitration can be applied in investment arbitration. The dynamics of investment arbitration are fundamentally different from commercial arbitration in that the respondent is a sovereign state while the claimant is a private individual that invested in the respondent state. There is an inherent imbalance of accessibility to information, especially in cases of expropriation where the investor no longer has access to the investment, in that the respondent state may have more or may gain access to further information through measures such as investigation. The principle of equal treatment or ‘equality of arms’ is often a key concern in document production in investment arbitration cases and an issue to be aware of when the IBA Rules are referred to or a decision on document production needs to be made by the tribunal.

For example, one recurring question is whether the respondent state may refuse to produce documents that are classified as state secrets. Under Article 9(2)(f) of the IBA Rules, a party may resist document production on the ‘grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling’.[11] While this ground of objection may not be invoked often in commercial arbitration and therefore serves limited purpose, in investment arbitration the host state has an incentive to classify certain documents or information as secret, to object to their production. In this regard, the question arises as to whether the respondent state may argue that any and all documents that it classifies as state secrets can be exempted from production.

Investment arbitration tribunals have ruled in various instances that the respondent state cannot declare all documents immune from production merely on the basis of its national laws or its own designation, but that it would have to justify how it substantively qualifies documents as state secret under Article 9(2)(f) of the IBA Rules. In Biwater Gauff v. Tanzania, the tribunal held that Tanzania was not allowed to resist production under Article 9(2)(f) by relying on a domestic law permitting the respondent state-wide and undefined discretion to declare itself immune from the duty to produce documents, and that allowing this would violate the principle of equal treatment.[12] Recently, in Elliott Associates LP v. Republic of Korea, the tribunal ordered the Republic of Korea, which asserted privilege for documents being ‘politically sensitive’, to submit a privilege log explaining the reasons for claiming privilege in detail. The tribunal held that it would determine whether the grounds of special political or institutional sensitivity invoked by the party opposing production was ‘compelling’.[13]

When the respondent state is able to justify in detail how it determined that releasing the information in question would be injurious to its national security, instead of asserting the national security privilege as a blanket refusal, tribunals have ruled in favour of the host state, including in Global Telecom Holding SAE v. Canada.[14] In such manner, investment arbitration tribunals have been conscious of the difference between commercial and investment arbitration and have developed a practice to ensure that the principle of equal treatment is not violated in admitting the grounds of refusal to disclose put forward in the IBA Rules.

Transparency versus privacy and confidentiality

Necessity of transparency in investment arbitration

For many reasons, transparency has been an important procedural issue in investment arbitration. While privacy and confidentiality are key features that often make international commercial arbitration preferable to domestic litigation, they are often less desirable in investment arbitration. Unlike international commercial arbitration, which primarily concerns disputes between private parties, investment arbitration involves a sovereign state. Investment arbitration also often engages the public interest; for example, the investment in disputes often involve public goods and service sectors, and the state measure in question often involves government regulations enacted for public welfare. There is also the issue of the cost that the state will incur from the dispute and the amount that has to be paid by the state if it were to receive a disadvantageous award. This led to calls for (more) transparency in investment arbitration as well as (more) public involvement in investment arbitral proceedings.

The need for a different set of rules of transparency and confidentiality for investment arbitration cases first became apparent in cases such as Metalclad Corporation v. The United Mexican States and Loewen Group, Inc and Raymond L Loewen v. United States of America. In Metalclad v. Mexico, Mexico filed a request for a confidentiality order in response to the claimant providing information regarding the dispute to a company’s shareholders.[15] The tribunal ruled that, while there is no general principle of confidentiality within the North American Free Trade Agreement (NAFTA) or the ICSID (Additional Facility) Rules that would restrict the parties from speaking publicly about the case, the public discussions of the dispute should be limited to what they are legally obligated to disclose to facilitate an orderly proceeding of the arbitration.[16] In Loewen v. United States, the tribunal denied the United States’ request that all filings be made public because Article 44(2) of the ICSID Additional Facility Rules provided that the minutes of hearings ‘shall not be published without the consent of the parties’.[17] However, the tribunal acknowledged that this does not mean the parties should be precluded from discussing the case in public, ‘thereby depriving the public of knowledge and information concerning government and public affairs’.[18] These cases raised awareness of the need for greater transparency in investment arbitration.

However, achieving the right balance between transparency and confidentiality or privacy can be challenging. There are various reasons to advocate for more transparency, including that the public arguably has the right to have access to information regarding the arbitration when the subject matter of the dispute involves matters of a public nature. More transparency may also ensure government accountability.[19] On the other hand, having complete transparency would mean that certain sensitive business and government information would also have to be disclosed to the public. Furthermore, transparency and, in particular, allowing involvement of the public or third parties in investment arbitration could make the proceedings inefficient. Resolving this tension between the traditional characteristics of private dispute resolution and the public nature of investment arbitration has become one of the most important procedural issues in investment arbitration in recent years.

Arbitration rules on transparency

Key changes resulting from the push for greater transparency include the 2006 revisions to the ICSID Arbitration Rules and the 2013 adoption of the UNCITRAL Rules on Transparency for Treaty-based Investor-State Arbitration (the UNCITRAL Rules on Transparency) along with the 2014 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (also known as the Mauritius Convention).

In many ways, the 2006 revisions to the ICSID Arbitration Rules were an important step towards achieving more transparency in investment arbitration and a significant departure from the practice of international commercial arbitration. Under the revised ICSID Arbitration Rules, unless either party objects, the tribunal may allow other persons in addition to the parties to attend or observe the hearings subject to appropriate logistical arrangements and procedures for protection of proprietary or privileged information.[20] Rule 48(4) also requires ICSID to promptly publish excerpts of the legal reasoning for the awards.[21] The revised ICSID Arbitration Rules also include provisions on third-party submissions, which is discussed further below. The newly introduced transparency provisions affected ICSID arbitration practice almost immediately as these provisions apply as the default to cases under the auspices of ICSID.

The UNCITRAL Rules on Transparency, introduced in 2013, provide an even higher degree of transparency than the revised ICSID Arbitration Rules. Article 3 of the UNCITRAL Rules on Transparency provide that the notice of arbitration, the response to the notice of arbitration, other written statements or submissions by the parties, any written submissions by a non-disputing party, hearing transcripts and orders, decisions and awards of the tribunal are to be made available to the public.[22] Article 6 also states that hearings shall be public.[23] Of course, there are exceptions to transparency: Article 7 states that the arbitral tribunal may determine that (1) certain information is confidential and protected,[24] or (2) the release of certain information would jeopardise the integrity of the arbitral process[25] such that it shall not be made available to the public. In addition, Article 7(5) of the UNCITRAL Rules on Transparency makes clear that a respondent state would not need to disclose that which it considers to be contrary to its essential security interests.

While the UNCITRAL Rules on Transparency include more detailed and broader transparency provisions than the ICSID Arbitration Rules, the former arguably has limited application. The UNCITRAL Rules on Transparency only apply to investment arbitrations arising from investment treaties entered into on or after 1 April 2014. For investment arbitrations arising from investment treaties entered into before 1 April 2014, the parties have to agree to apply the Rules.[26] While the Mauritius Convention, in which the state parties consent to application of the UNCITRAL Rules on Transparency to disputes arising from investment treaties entered into before 1 April 2014, was intended to expand the scope of applicability of the Rules, only 23 states have signed the Convention.[27] Considering that the vast majority of investment treaties from which investment arbitrations arise were entered into before 1 April 2014, the UNCITRAL Rules on Transparency unfortunately have had relatively limited application.

Investment treaties on transparency

With the growing demand from the public, states have started to include specific transparency provisions in their investment treaties as well. Examples of this include the free trade agreements (FTAs) entered into with the United States. Article 11.2 of the US–Republic of Korea FTA, for example, provides that the submissions, hearing transcripts and orders, awards or decisions of the tribunal shall be made available to the public and the hearings shall also be open to the public.[28] Within these provisions, the treaties usually include exceptions to transparency, such as information designated as protected information, provided that a respondent state shall not be required to withhold from the public information required to be disclosed by its laws.[29]

The question remains, however, of whether there is room for further development. The introduction of an ‘investment court system’ in Chapter 8 of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada sought to bring groundbreaking changes to the investor–state dispute resolution system. While we do not go into the details of the investment court system here, there is no doubt that this movement came as a backlash against investor–state arbitration, which was claimed to lack transparency, consistency and legitimacy. Chapter 8 of CETA specifically includes a provision on transparency of the proceedings, which provides for a broader scope of information and documents to be made public than the UNCITRAL Rules on Transparency.[30] In the face of such pressure, it would be important to deliberate on the appropriate expansion of the scope of the transparency provisions in the arbitration rules or investment treaties for the existing investor–state arbitration mechanism to remain as the preferred method of resolving investor–state disputes.

Third-party interveners

Necessity of intervention by third parties

With the push for increased transparency, and the nature of investment arbitration involving the public interest, there has been a push for increased involvement of third parties with rights to or interests in the arbitration. Local communities affected by an investment or resulting dispute may have an interest in the outcome of the arbitration and wish to participate in the proceedings. Individuals and groups that may not have a direct stake but have an interest in the dispute, such as the home state of the investor, local governments, public international organisations or non-governmental organisations, may also wish to provide their opinion on issues in which they can provide their expertise. On the other hand, allowing third-party intervention can impede the efficiency of the proceeding and would be a significant departure from the existing private dispute resolution mechanism.

The movement to allow participation of third-party, and specifically amicus curiae, submissions started relatively early. The first investment arbitration tribunal to allow an amicus curiae submission was Methanex Corporation v. United States in 2001.[31] Despite there being no explicit provision on amicus curiae submissions in NAFTA or the UNCITRAL Arbitration Rules 1976, the tribunal declared that it had the power to accept amicus written submissions pursuant to Article 15(1) of the UNCITRAL Arbitration Rules 1976, pursuant to the tribunal’s authority to conduct the proceedings as it deems appropriate.[32] The case highlighted the need for arbitration rules or investment treaties to include explicit provisions on whether and when a tribunal would be allowed to accept submissions from third parties.

Arbitral rules and investment treaties on third-party intervention

The ICSID Arbitration Rules were revised in 2006 and the UNCITRAL Rules on Transparency were introduced in 2013 to include specific provisions on submission as amicus curiae. Under ICSID Arbitration Rule 37(2), a tribunal may allow non-disputing parties to file a written submission on any matter within the scope of dispute.[33] The Rule states that the tribunal should consider whether the non-disputing party submission would assist the tribunal in determining the issues at hand and whether the non-disputing party has a significant interest in the proceedings. On the other hand, the tribunal would need to ensure that the non-disputing party submission would not disrupt the proceedings or unduly burden or unfairly prejudice either party.

The UNCITRAL Rules on Transparency contain a similar provision on third-party submissions. Under Article 4, the tribunal may allow a non-disputing party to file a written submission and in doing so, the tribunal shall consider similar issues prescribed in the ICSID Arbitration Rules.[34] However, the UNCITRAL Rules on Transparency go a step further in providing detailed procedures on how a third party can make an application for submission, and the requirements for the content and length of the submission filed by the third party.[35]

In line with the changes in arbitration rules, some investment treaties also specifically allow and provide for procedures regarding amicus curiae submissions. For example, Article 11.20(5) of the US–Korea FTA provides that the tribunal may allow a non-disputing party to file an amicus curiae submission, with the tribunal to have similar considerations as those listed in the ICSID Arbitration Rules.[36]

Third-party intervention in an investment arbitration case

A relatively recent investment arbitration case in which an amicus curiae brief was submitted and played a meaningful role is Philip Morris v. Uruguay.[37] The case involved the tobacco control measures implemented by Uruguay, and the tribunal accepted the submission of: (1) a joint amicus brief by the WHO and the Framework Convention on Tobacco Control Secretariat on how the Uruguayan measures were an effective means for protecting public health; and (2) an amicus brief by the Pan American Health Organization on how the Uruguayan measures were reasonable and effective in reducing tobacco consumption pursuant to ICSID Arbitration Rule 37(2).[38] In allowing their submissions, the tribunal stated that the submissions may be beneficial considering the particular knowledge and expertise of the qualified entities regarding the matters in dispute, and added that ‘in view of the public interest involved in this case, granting the Request would support the transparency of the proceeding and its acceptability by users at large’.[39] As this transpired, the tribunal made many references to these amici submissions in its final award. The tribunal denied the requests from the Avaaz Foundation and the Inter-American Association of Intellectual Property to submit a written submission as a non-disputing party, however, because both were submitted late in the proceeding, and allowing the submission may have disrupted the proceeding and unfairly prejudiced the parties.[40]

While there have been meaningful developments in allowing third-party written submissions in investment arbitration, we may consider further expanding the scope of involvement of third parties. One limitation to the current system is that the communities affected by the investment in dispute may not be able to participate due to the cost of intervention. To facilitate their participation, the arbitration rules could prescribe rules for the allocation of costs of third-party intervention.

Hearings

Public access to hearings

The desire for greater transparency in investment arbitration has led to some investment arbitration hearings being held in public. As discussed above, the ICSID Arbitration Rules were revised in 2006 so that a tribunal may allow other persons to attend the hearing subject to appropriate logistical arrangements and protection of proprietary or privileged information.[41] The UNCITRAL Rules on Transparency go a step further and mandate that the hearings shall be public subject to the protection of confidential information or the integrity of the arbitral process.[42] Certain investment treaties also specifically include a provision that hearings should be made public.[43]

If the hearings are open to the public, ICSID can provide a video link so that the hearing is broadcast to a specific room on the premises of the hearing (e.g., the World Bank hearing centre in Washington, DC, or Paris).[44] However, this grants only limited access to the hearing in that only those who can attend have access to the hearings. Alternatively, the video link could be webcast: the first live internet broadcast of a public ICSID hearing was on 31 May 2010 in Pac Rim Cayman LLC v. Republic of El Salvador.[45] The case was broadcast to the public based on Article 10.21.2 of the Dominican Republic–Central America FTA (2004), which mandated that the hearing be open to the public. Henceforth, several hearings have been broadcast live on the internet.[46]

Physical versus virtual hearings

In terms of the venue of the hearing and whether the hearing needs to be held in-person or can be held virtually, neither the ICSID Arbitration Rules nor the UNCITRAL Arbitration Rules include specific provision on this. This is generally not perceived as mandating a physical hearing or prohibiting virtual hearings. Even before the onset of the covid-19 pandemic, an increasing number of hearings were held virtually to accommodate participants from all around the world. In fact, approximately 60 per cent of the hearings and sessions organised by ICSID in 2019 were held virtually.[47] Because of the covid-19 pandemic, in-person hearings have become extremely challenging if not impossible due to travel restrictions, and virtual hearings are increasingly becoming the preferred choice. Indeed, virtual hearings could make it easier to broadcast the hearing to the broader public, thereby satisfying the need for greater transparency, with the added benefit of reducing the costs of proceedings.

One recurring question that has arisen since the emergence of the covid-19 pandemic has been whether hearings can be held virtually despite objections from one party, and whether this would qualify as grounds to annul or set aside an award. Interestingly, in a recent decision in Landesbank v. Spain, the chair of the ICSID Administrative Council denied the claim from Spain that the unilateral decision to hold a virtual hearing was grounds to disqualify the tribunal.[48] In this case, the hearing was originally supposed to be held in person but due to the pandemic, the tribunal issued a procedural order mandating that the hearing be held virtually instead. Spain argued that it would be inappropriate to hold the hearing virtually due to the complexity of the case and requested the entire tribunal be disqualified on the grounds its decision to hold the hearing virtually was based on ‘serious misrepresentations and misleading statements’,[49] which qualify as ‘dishonest behaviour’ and violate the ‘high moral character’ standard required for the tribunal under Articles 57 and 14 of the ICSID Convention.[50] Needless to say, the chair denied Spain’s request to disqualify the tribunal, noting that ‘any arbitral tribunal is called on to balance considerations of efficiency and avoiding delay with ensuring that the parties are properly heard’, and the ‘Tribunal itself is best placed to balance these considerations’.[51] Other cases have been decided in a similar fashion.[52]

To address these issues, the 2020 IBA Rules now expressly allow tribunals to order that a hearing be conducted virtually or remotely.[53] While it remains to be seen whether the trend to hold hearings in a virtual format will continue post-pandemic, the recent changes show the need for investment arbitration rules and practices to develop and adapt to the change of circumstance and the needs of the public.

Conclusion

Investment arbitration departs from the rules and practice of international commercial arbitration in important respects. The core purpose of this chapter has been to examine those differences in the context of disclosure in investment arbitration and the frameworks that have been adopted to address these issues, namely through document production and the use of the IBA Rules to allow for a harmonious system between different legal regimes, the increasing demand for transparency and the adaptation of arbitration rules and treaties to meet this demand, third-party intervention and, finally, the use of virtual hearings as an alternative to hearings in person.

While the measures taken have had varying degrees of success, there is still room for further improvement. The ongoing endeavours of the UNCITRAL working groups, aimed at reforming the ICSID rules and regulations, are an example of how the legal regime continues to adapt and modify itself to address such concerns. Investment arbitration, by its very nature, will necessarily develop to satisfy both the public interests of the states and the private interests of the investors involved.


Notes

[1] Eun Young Park is a partner, Sup-Joon Byun is a senior foreign attorney, Seokchun Yun is a senior attorney and Shul Park is an attorney at Kim & Chang.

[3] United Nations Conference on Trade and Development (UNCTAD), ‘UNCTAD releases data on over 1,000 investor-state arbitration cases’, 11 February 2021, at https://unctad.org/news/unctad-releases-data-over-1000-investor-state-arbitration-cases.

[4] UNCTAD, IIA Issues Note: ‘Denunciation of the ICSID Convention and BITs: Impact on Investor–State Claims, No. 2, December 2010, at https://unctad.org/system/files/official-document/webdiaeia20106_en.pdf.

[5] See, for example, Chapter 8 of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada.

[6] See ICSID Arbitration Rule 34(2): ‘The Tribunal may, if it deems it necessary at any stage of the proceeding: (a) call upon the parties to produce documents, witnesses and experts’; UNCITRAL Arbitration Rules Article 27(3): ‘At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence.’

[7] ICSID Arbitration Rule 34(3): ‘The parties shall cooperate with the Tribunal in the production of the evidence and in the other measures provided for in paragraph (2).’

[8] For example, see Elliott Associates, L.P. v. Republic of Korea, PCA Case No. 2018-51, Procedural Order No. 1, 1 April 2019, Paragraph 5.3.6; and Hela Schwarz GmbH v. People’s Republic of China, ICSID Case No. ARB/17/19, Procedural Order No. 1, 9 March 2018, Paragraph 18.3.

[9] IBA Task Force for the Revision of the IBA Rules on the Taking of Evidence in International Arbitration / Consolidated Amendments, Commentary on the Revised Text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration (2021), p. 2, at www.ibanet.org/MediaHandler?id=4F797338-693E-47C7-A92A-1509790ECC9D.

[10] The word ‘commercial’ in the 1999 IBA Rules was deleted when the IBA Rules were revised in 2010 to clarify that the IBA Rules may be adopted in both commercial and investment arbitration. id., p. 3.

[11] Article 9(2)(f) of the IBA Rules.

[12]The tribunal found that ‘the only ground which might justify a refusal . . . is the protection of privileged or politically sensitive information, including State secrets restated in article 9.2(f) of the IBA Rules of Evidence’. Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 2, 24 May 2006, pp. 8–9.

[13]Elliott Associates L.P. v. Republic of Korea, PCA Case No. 2018-51, Procedural Order No. 8, 13 January 2020, Paragraph 25.

[14]Global Telecom Holding S.A.E. v. Canada, ICSID Case No. ARB/16/16, Procedural Order No. 4, 3 November 2018, Paragraph 43.

[15]Metalclad v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award of the Tribunal, 30 August 2000, Paragraph 13.

[16] ibid.

[17]Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Decision on hearing of Respondent’s objection to competence and jurisdiction, 5 January 2001, Paragraphs 24–26.

[18] id., Paragraph 26.

[19] Mabel I Egonu, ‘Investor State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?’, Journal of International Arbitration, Volume 24, Issue 5 (2007), p. 488.

[20] See ICSID Arbitration Rule 32(2): ‘Unless either party objects, a Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts, during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.’

[21] See ICSID Arbitration Rule 48(4): ‘The Centre shall not publish the award without the consent of the parties. The Centre shall, however, promptly include in its publications excerpts of the legal reasoning of the Tribunal.’

[22] See UNCITRAL Rules on Transparency, Article 3(1): ‘Subject to article 7, the following documents shall be made available to the public: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defence and any further written statements or written submissions by any disputing party; a table listing all exhibits to the aforesaid documents and to expert reports and witness statements, if such table has been prepared for the proceedings, but not the exhibits themselves; any written submissions by the non-disputing Party (or Parties) to the treaty and by third persons, transcripts of hearings, where available; and orders, decisions and awards of the arbitral tribunal.’ Other paragraphs of Article 3 provide for the possible publication of expert reports, witness statements, exhibits and other documents, and the process of publication of the above documents.

[23] See UNCITRAL Rules on Transparency, Article 6(1): ‘Subject to article 6, paragraphs 2 and 3, hearings for the presentation of evidence or for oral argument (“hearings”) shall be public.’

[24] In particular, Article 7(2) defines ‘confidential or protected information’ as follows:

  1. Confidential business information;
  2. Information that is protected against being made available to the public under the treaty;
  3. Information that is protected against being made available to the public, in the case of the information of the respondent State, under the law of the respondent State, and in the case of other information, under any law or rules determined by the arbitral tribunal to be applicable to the disclosure of such information; or
  4. Information the disclosure of which would impede law enforcement as confidential or protected information.

[25] See Article 7(7) of the UNCITRAL Rules on Transparency: ‘The arbitral tribunal may, on its own initiative or upon the application of a disputing party, after consultation with the disputing parties where practicable, take appropriate measures to restrain or delay the publication of information where such publication would jeopardize the integrity of the arbitral process because it could hamper the collection or production of evidence, lead to the intimidation of witnesses, lawyers acting for disputing parties or members of the arbitral tribunal, or in comparably exceptional circumstances.’

[26] See UNCITRAL Rules on Transparency, Article 1.

[27] As at 31 August 2021. See UNCITRAL, Status: United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014), at ---https://uncitral.un.org/en/texts/arbitration/conventions/transparency/status.

[28] See the following excerpt of Article 11.2 (Transparency of Arbitral Proceedings) of the US–Republic of Korea FTA (2007):

  1. Subject to paragraphs 2, 3, and 4, the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party and make them available to the public:>
    1. the notice of intent;
    2. the notice of arbitration;
    3. pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Article 11.20.4 and 11.20.5 and Article 11.25;
    4. minutes or transcripts of hearings of the tribunal, where available; and
    5. orders, awards, and decisions of the tribunal.
  2. The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.
  3. Nothing in this Section requires a respondent to disclose protected information or to furnish or allow access to information that it may withhold in accordance with Article 23.2 (Essential Security) or Article 23.4 (Disclosure of Inf>ormation).
  4. Any protected information that is submitted to the tribunal shall be protected from disclosure in accordance with the following procedures: . . .
  5. Nothing in this Section requires a respondent to withhold from the public information required to be disclosed by its laws.

[29] ibid.

[30] See Article 8.36 (Transparency of proceedings) of CETA:

  1. The UNCITRAL Transparency Rules, as modified by this Chapter, shall apply in connection with proceedings under this Section.
  2. The request for consultations, the notice requesting a determination of the respondent, the notice of determination of the respondent, the agreement to mediate, the notice of intent to challenge a Member of the Tribunal, the decision on challenge to a Member of the Tribunal and the request for consolidation shall be included in the list of documents to be made available to the public under Article 3(1) of the UNCITRAL Transparency Rules.
  3. Exhibits shall be included in the list of documents to be made available to the public under Article 3(2) of the UNCITRAL Transparency Rules.
  4. Notwithstanding Article 2 of the UNCITRAL Transparency Rules, prior to the constitution of the Tribunal, Canada or the European Union as the case may be shall make publicly available in a timely manner relevant documents pursuant to paragraph 2, subject to the redaction of confidential or protected information. Such documents may be made publicly available by communication to the repository.
  5. Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to such hearings. If the Tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring such protection.
  6. Nothing in this Chapter requires a respondent to withhold from the public information required to be disclosed by its laws. The respondent should apply those laws in a manner sensitive to protecting from disclosure information that has been designated as confidential or protected information.

[31]Methanex Corporation v. United States of America, UNCITRAL, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’, 15 January 2001.

[32] id., Paragraph 47.

[33] See ICSID Arbitration Rule 37(2):

(2) After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the ‘non-disputing party’) to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the tribunal shall consider, among other things, the extent to which:

  1. the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties;
  2. the non-disputing party submission would address a matter within the scope of the dispute;
  3. the non-disputing party has a significant interest in the proceeding.

The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission.

[34] See Article 4 (Submission by a third person) of the UNCITRAL Rules on Transparency:

  1. After consultation with the disputing parties, the arbitral tribunal may allow a person that is not a disputing party, and not a non-disputing Party to the treaty (“third person(s)”), to file a written submission with the arbitral tribunal regarding a matter within the scope of the dispute.
  2. A third person wishing to make a submission shall apply to the arbitral tribunal, and shall, in a concise written statement, which is in a language of the arbitration and complies with any page limits set by the arbitral tribunal:
    1. Describe the third person, including, where relevant, its membership and legal status (e.g., trade association or other non-governmental organization), its general objectives, the nature of its activities and any parent organization (including any organization that directly or indirectly controls the third person);
    2. Disclose any connection, direct or indirect, which the third person has with any disputing party;
    3. Provide information on any government, person or organization that has provided to the third person (i) any financial or other assistance in preparing the submission; or (ii) substantial assistance in either of the two years preceding the application by the third person under this article (e.g. funding around 20 per cent of its overall operations annually);
    4. Describe the nature of the interest that the third person has in the arbitration; and
    5. Identify the specific issues of fact or law in the arbitration that the third person wishes to address in its written s>ubmission.
  3. In determining whether to allow such a submission, the arbitral tribunal shall take into consideration, among other factors it determines to be relevant:
    1. Whether the third person has a significant interest in the arbitral proceedings; and
    2. The extent to which the submission would assist the arbitral tribunal in the determination of a factual or legal issue related to the arbitral proceedings by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.
  4. The submission filed by the third person shall:
    1. Be dated and signed by the person filing the submission on behalf of the third person;
    2. Be concise, and in no case longer than as authorized by the arbitral tribunal;
    3. Set out a precise statement of the third person’s position on issues; and<
    4. Address only matters within the scope of the dispute.
    5. The arbitral tribunal shall ensure that any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
    6. The arbitral tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on any submission by the third person.

[35] ibid.

[36] See Article 11.20 (Conduct of Arbitration), Paragraph 5 of the US–Korea FTA as follows:

  1. After consulting the disputing parties, the tribunal may allow a party or entity that is not a disputing party to file a written amicus curiae submission with the tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the tribunal shall consider, among other things, the extent to which:
    1. the amicus curiae submission would assist the tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge, or insight that is different from that of the disputing parties;
    2. the amicus curiae submission would address a matter within the scope of the dispute; and
    3. the amicus curiae has a significant interest in the proceeding.

The tribunal shall ensure that the amicus curiae submission does not disrupt the proceeding or unduly burden or unfairly prejudice either disputing party, and that the disputing parties are given an opportunity to present their observations on the amicus curiae submission.

[37]Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016.

[38] id., at Paragraphs 35–48.

[39] id., at Paragraph 39.

[40] id., at Paragraphs 49–55. The tribunal also mentioned that the Avaaz Foundation did not provide sufficient grounds as to how it may offer a perspective, knowledge or insight to the case. Regarding the Inter-American Association of Intellectual Property (ASIPI), the tribunal found that, considering the relationship between ASIPI and the claimants, it was not seen as sufficiently independent.

[41] See ICSID Arbitration Rule 32(2).

[42] See UNCITRAL Rules on Transparency, Article 6(1). See also UNCITRAL Rules on Transparency, Article 6(3): ‘The arbitral tribunal shall make logistical arrangements to facilitate the public access to hearings (including where appropriate by organizing attendance through video links or such other means as it deems appropriate). However, the arbitral tribunal may, after consultation with the disputing parties, decide to hold all or part of the hearings in private where this becomes necessary for logistical reasons, such as when the circumstances render any original arrangement for public access to a hearing infeasible.’

[43] Article 11.2(2) of the US–Republic of Korea FTA (2007).

[45] UNCTAD, ‘Transparency: UNCTAD Series on Issues in International Investment Agreements II’, 2012, p. 40, at https://unctad.org/system/files/official-document/unctaddiaeia2011d6_en.pdf.

[46] ibid.

[47] ICSID, ‘A Brief Guide to Online Hearings at ICSID’, 24 March 2020, at https://icsid.worldbank.org/news-and-events/news-releases/brief-guide-online-hearings-icsid.

[48]Landesbank Baden-Württemberg, HSH Nordbank AG, Landesbank Hessen-Thüringen Girozentrale and Norddeutsche Landesbank-Girozentrale v. Kingdom of Spain, ICSID Case No. ARB/15/45, Decision on the Proposal for Disqualification of Christopher Greenwood, Charles Poncet and Rodrigo Oreamuno, 15 December 2020.

[49] For example, the respondent argued that the tribunal misrepresented that one of its arbitrators could not travel from Costa Rica for the hearing because Costa Rica’s borders were closed when in fact Costa Rica announced that it was going to reopen the borders before the hearing date. id., at Paragraph 43.

[50] ibid.

[51] id., at Paragraph 142.

[52] See Vattenfall AB and Others v. Federal Republic of Germany (II), ICSID Case No. ARB/12/12, Decision of the Chairman of the Administrative Council, 8 July 2020, in which Germany’s proposal to disqualify the arbitral tribunal because the tribunal’s decision to hold a virtual hearing despite its objections created the ‘appearance of bias’ was denied by the chairman of the ICSID Administrative Council.

[53] See Article 8.2 (Evidentiary Hearing) of the IBA Rules:

At the request of a Party or on its own motion, the Arbitral Tribunal may, after consultation with the Parties, order that the Evidentiary Hearing be conducted as a Remote Hearing. In that event, the Arbitral Tribunal shall consult with the Parties with a view to establishing a Remote Hearing protocol to conduct the Remote Hearing efficiently, fairly and, to the extent possible, without unintended interruptions. The protocol may address:

  1. the technology to be used;
  2. advance testing of the technology or training in use of the tehnology;
  3. the starting and ending times considering, in particular, the time zones in which participants will be located;
  4. how Documents may be placed before a witness or the Arbitral Tribunal; and
  5. measures to ensure that witnesses giving oral testimony are not improperly influenced or distracted.

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