Research On Transparency Rules In Investment Arbitration Of International Organizations

International investment arbitration originates in international commercial arbitration.The main parties in the arbitration are investors and the host country.All along,international investment arbitration has maintained its confidentiality characteristics inherited from international commercial arbitration.This feature has not shown any problems in the early stages of the development of international investment arbitration.The abuses of the confidentiality of investment arbitration have become increasingly obvious,which has adversely affected the development of international investment arbitration: Emphasizing on the protection of private property cannot justify the protection of the public interests of the host country;the legitimacy of the outcome of the arbitration has been questioned,and the public’s call for protection of their right to information and transparency in arbitration is increasing.The secrecy of international investment arbitration has been increasingly questioned by the international community including the host country.Transparency reform has become increasingly important in international investment arbitration.Beginning with NAFTA,its chapter 11 makes specific provisions for the publication of rulings and the disclosure of information during the arbitration process.In the case of Methanex v.the United States,it accepted the statement made by“Friends of the Court” and issued a Transparency-related statements have since opened the course of major international organizations for the transparency of arbitration.Since this is an initial attempt at transparency rules,NAFTA still has the inadequacies of stipulations that are not detailed and vague.However,its inadequacies does not affect the continued trial of the transparency rules by the subsequent arbitration institutions.ICSID continued the exploration of the transparency rules in the "ICSID Arbitration Rules" revised in 2006.This rule draws on the provisions of NAFTA’s Friends of the Court system and allows the third party to participate in arbitral proceedings;the arbitral tribunal publishes the information about the arbitral proceedings to the other people.This action enriches the meaning of transparency rule and further develops the transparency rules.Then,UNCITRAL passed the UNCITRAL Arbitration Rules in 1976 and amended the UNCITRAL Arbitration Rules in 2010.In 2014,it signed the Convention on Transparency in NewYork.Compared with the previous provisions on transparency reforms,UNCITRAL elaborated the contents of the submissions of non-contentious parties to the treaty and clarified the application of the transparency rules,which greatly eased the drawbacks of the confidentiality of arbitration and complied with the general trend of transparency.The development of transparency has become an important condition for the development of the international investment arbitration.However,for the time being,the transparency rules have some drawbacks:The current arbitration rules do not clearly stipulate the specific meanings of many of the definitions of transparency rules,such as confidential information and public interest,which are one of the criteria for the arbitral tribunal to judge whether or not to adopt transparency rules;The boundaries of transparency rules are uncertain,and it remains difficult to grasp the relationship between the confidentiality characteristics of arbitration and transparency rules;In addition,the use of transparency rules will increase the cost of arbitration.The burden on the program seriously affects the efficiency of the program.In the face of these problems,we can seek solutions from the following aspects: Strictly define confidential information in a qualitative and enumerated manner,and stipulate public interests through the composition of personal interests;Master the boundaries of the transparency rules and confidentiality rules.Focusing on confidentiality rules,and the transparency is the exception for investment arbitration;Limit the time when the third party wants to participate in a arbitration.Encourage the development of domestic non-governmental organizations,and support Friends of the court to participate in arbitration activities;Learning from international BIT practices to improve domestic correlation.We can adapt to and make good use of these rules to promote China’s foreign investment and the development of foreign investment.