Study On The Principle Of Transparency Of International Investment Arbitration

International investment arbitration has been used in international commercial arbitration rules to adjust the international investment legal relationship, but the relationship between the international investment is different from international commercial relations unique characteristics, therefore, to explore a suitable for international investment arbitration differs from international commercial arbitration rules has considerable research value.With the "UNCITRAL investors and between countries based on the treaty arbitration transparency rules" came into effect on April 1, 2014, for what is the investment arbitration transparency principle, its causes, the establishment of standards, the use of the scope, content, principle of transparency are needed to clarify and define.Because the "UNCITRAL investors and between countries based on the treaty arbitration transparency rules" has been explicitly incorporated into the "arbitration rules" Trade Law Committee, the rules will have a great influence on the future investment treaties signed. At the same time,with the establishment of China free trade test area, openness to international investment will increasingly strengthen. Therefore, China signed an investment treaty in the future, how to apply or to avoid the application of the rule has become an important and urgent problem.Objectives: the development process of clarifying the concept, definition of the transparency principle; the principle of transparency set standards, the applicable scope and the main content; difficulties in actual use; whether China should apply the principle of transparency and how to apply in the investment arbitration treaty in the future.The first part will focus on the development of the principle of transparency. Investment arbitration is originated from Commercial Arbitration, and therefore the characteristics of investment arbitration are similar to commercial arbitration. Both of them are generated by the application of the two parties; Both of them obey the principle of Autonomy and abide by the principle of secret; Both arbitration awards have the effect of mandatory binding. However, due to the fact that investment arbitration also reflects its own characteristics, it shows the difference from commercial arbitration such as the specialty of the legal subject, the special issues in dispute and the specialty of jurisdictional basis. It is because of these peculiarities that makes investment arbitration result in a crisis of legitimacy when commercial arbitration rules is applied to it. First, the principle of secret is not compatible with the investment arbitration. Second, the award of the investment arbitration is inconsistent. To solve these problems, the principle of transparency is proposed.Then, the paper will analyze the development of the principle of transparency by looking through the changes of the rules of the world’s three major arbitration rules namely: ICSID Arbitration Rules, UNCITRAL Arbitration Rules and NAFTA arbitration rules. Among them, NAFTA arbitration rules is the first one which starts to concern the principle of transparency, which was triggered by Methanex case. But the depth and breadth of its implementation is not enough. Relatively, the reform of the ICSID Arbitration Rules and the UNCITRAL Arbitration Rules is later. Although the UNCITRAL Arbitration Rules’ reform is the latest, it provides the highest level of details of the principle of transparency so far and it is the most systematic and comprehensive.The second part of this paper will compare the principle of transparency under the three rules, and analyze the pros and cons. First, the author will point out the concept of the principle of transparency which refers to some transparent measures in the investment arbitration proceedings, including the disclosure of the arbitration proceedings, files, the trial and the awards, non-disputing party, etc. In addition, this part will also make a research on the forms of the principle of transparency, including: exemplary statement of principles, model clauses in the investment treaties, guidelines and independence rules. These forms both have advantages and disadvantages. Furthermore, the effectiveness of the range of the principle of transparency that is, whether the issue has retroactive effect, will be covered as well in this part.The third part of this paper will cover Crompton(Chemtura) Corp v Canada case and Aguas Provinciales de Santa Fe SA and ors v Argentina case for further analysis on the principle of transparency. First, the basic facts in the two cases will be respectively briefly summarized, and then the author will summarize some of the provisions which are more specific than three arbitration rules from the two cases’ arbitration awards. Through the analysis of the case, it can be found that the three major arbitration rules tend to be more universal and not comprehensive. From the above two cases we can understand that: first, the principle of transparency is a procedural requirement; second, for "non-disputing party" there are restrictions on the qualification and comments submitted to the tribunal; third, under NAFTA system, even confidential information under certain conditions can still be disclosed. These rules are not reflected in the provisions of the three major rules. China in the future when faced with similar problems can have a pre-preparation by studying this rules contained in the cases.The fourth part of this article will focus on the impact of the principle of transparency on China. First, the author will summarize our current situations on investment treaty. Totally there are different kinds of provisions about the dispute articles. These provisions will make bilateral investment treaties lack of clarity on whether it is bound by the principle of transparency.Then, the author suggests that China should accept the principle of transparency. The reasons are: first, China has changed its position in the international investment from the host country to the investors. Second, with the improvement of the situation of foreign investment, China’s foreign policy has changed. Third, the principle of transparency will better balance the interests of investors and the public interest.Then, China should deal with several issues when the principle of transparency is applied to its investment treaties. First, how to ensure the independence, transparency of the "non-disputing party". Second, how to deal with the conflict between the free flow of non-secret information and the effective protection of confidential information. Third, how to control the cost of file open, reducing the burden on developing countries. To solve these problems, China should put necessary restrictions on amicus curiae. Moreover, China should refine the exceptions of the principle of transparency. In addition, China should take the popular method that the appropriate agencies established by international organizations would be responsible for public information.At the end of this section, the author will analyze the practical problems and give his opinions. First, the implementation of the principle of transparency in China needs to further strengthen the construction of the rule of law in the country, especially in information disclosure. Second, the implementation of the principle of transparency could have a future impact on the treaty even past. Third, the government should strengthen the construction of non-governmental organizations, strengthen its interaction with the social environment and strengthen its cooperation and coordination between the social governance institutions.