33 J. Int'l Arb. 471 (2016)
Trasparency in Investor State Arbitartion

handle is hein.kluwer/jia0033 and id is 645 raw text is: 

















       Transparency in Investor State Arbitration



                                     William   KENNY*


     International trade and investment agreements have become the most recent battleground for the
     apparently conflicting views the arbitration community and civil society have on confidentiality
     and  transparency. This article aims to clarfy the debate and, exploring the concept of confidenti-
     ality in international commercial arbitration, explain the rationale for the increased transparency
     in Investor State Dispute Settlement (ISDS). It gives specftic consideration to the rules of major
     institutions and their national legal environments while also considering the practical diferences
     between  investor state and commercial arbitration. In this light, the increasing trend for
     transparency in ISDS,  codified by the 2013 UNCITRAL Transparency Rules, are argued
     not only to be acceptable but intelligent, considered changes which adroitly balance current public
     policy demands within the existing norms of commercial arbitration.


     [J]t is unclear why confidentiality has been suggested to be of less importance in investor-
     state arbitrations than in other contexts and whether a general rule of 'transparency' in
     investment  arbitrations would be appropriate.

     [The  TTIP]  would  allow  a secretive panel of corporate lawyers to overrule the will of
     parliament  ... The hearings are held in secret ... Citizens and communities  affected by
     their decisions have no legal standing.2


1   INTRODUCTION

The   Transatlantic  Trade  and  Investment Partnership (TTIP) and the Trans-Pacific
Partnership   (TPP)3   were   intended   to be  the  facilitators of trade  and  investment
across  their regions,  unifying  standards  and  reducing   administrative   barriers.' Yet
these  proposed linchpins of economic growth have faced a rising campaign of


    William Kenny is an Australian qualified lawyer based in Hong Kong. He has experience in jurisdic-
    tions across Asia and completed his Masters of Public and International Law at the University of
    Melbourne  in 2015. Email: william.kennyglive.com.au.
    Gary Born, International Commercial Arbitration 2828(Kluwer Law International 2014).
2   George Monbiot,  This Transatlantic Trade Deal Is a Full-Frontal Assault on Democracy, The Guardian
    (Online), (4. Nov. 2013), http://www.theguardian.com/cormmentisfree/2013/nov/04/us-trade-deal-
    full-frontal-assault-on-democracy (accessed 23 Jun 2016).
    Trans-Pacific Partnership (4 Feb. 2016), https://ustr.gov/trade-agreements/free-trade-agreements/
    trans-pacific-partnership/tpp-full-text (accessed 23 Jun 2016).
    Office of the United States Trade Representative, Trans-Pacific Partnership: Unlocking Opportunity for
    Americans Through Trade with the Asia Pacific, https://ustr.gov/tpp (accessed 21 Jun 2016).

Kenny, William. 'Transparency in Investor State Arbitration'. Journal of International Arbitration 33, no. 5
(2016): 471-500.
0 2016 Kluwer  Law International BV, The Netherlands

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