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6 J. World Investment & Trade 105 (2005)
Making the Proceedings Public and Allowing Third-Party Interventions - Are the New Generation Bilateral Investment Treaties (U.S., Canada) Bifurcating Investment Arbitration from International Commercial Arbitration?

handle is hein.journals/jworldit6 and id is 105 raw text is: Making the Proceedings Public and Allowing Third-Party Interventions Are the New Generation Bilateral Investment Treaties (U.S., Canada) Bifurcating Investment Arbitration from International Commercial Arbitration? Laurence BOISSON DE CHAZOURNES* Does the new generation of bilateral investment treaties introduce a new type of arbitration, particularly with respect to more traditional commercial arbitration? Is there something new in procedural terms? Is there a split between both types of arbitration, specifically in regard to the publicity of the proceedings and third-party intervention? The following remarks are offered with the intent of raising questions which might not, at this point, all receive clear answers. At the outset it should also be noted that these two topics are closely linked to the debate about a new type of investment arbitration. In a way, they are two faces of the same coin. 1. MAKING THE PROCEEDINGS OF INVESTMENT ARBITRATIONS PUBLIC The first question that should be asked is to what does the term publicity apply? To the arbitration, yes, but to what part of the proceedings? What exactly are the proceedings of the arbitration that should-or should not-be made public? Many different parts of the arbitration process can be subjected to publicity, from the filing of an arbitration claim, its submissions, hearings and evidence-gathering, to its award and, thereafter, to the possible-yet probable-action to enforce the award through national courts. It is therefore important to know to which part of such proceedings one refers when addressing the publicity issue. One could argue, for instance, that the entirety of the arbitration proceedings should be confidential (leaving aside national court proceedings for enforcement that naturally will be subject to the publicity attached to courts). Alternatively, one could argue that, for transparency's sake, the whole of the arbitration process should be open to the public. A middle road is to examine the balance between * Professor and Director of the Department of Publc International Law and International Organisation, Faculty of Law, University of Geneva. The present article is an expanded version of a presentation made at the 11th Geneva Global Arbitration Forum held 1-2 December 2004 im Geneva, Switzerland. The author would like to thank Mrs Olivia Bennaim-Selvi for her help in the course of the preparation of this contribution. The author may be contacted at: <Laurence.BoissondeChazoumes@droit.unige.ch>.

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