The World Bank’s arbitration facility, the International Centre for Settlement of Investment Disputes (ICSID), is seeing an uptick in the number of transparent arbitrations, according to Martina Polasek, ICSID Team Leader/Legal Counsel.
“There have been quite a few developments in favor of transparency in treaty making during the past year, and we have generally seen a trend toward increased transparency agreed by the parties in our cases,” Polasek said in an e-mail responding to a FreedomInfo.org inquiry.
Some parties arbitrating investor-state disputes at ICSID now opt to follow the 2014 transparency rules adopted by the United Nations Commission for International Trade Law (UNCITRAL), Polasek said.
This was recently done in BSG Resources Limited v. Republic of Guinea with the agreement of the parties. (See order by president of the tribunal.) ICSID was designated as the repository of the documents to be made public (including the parties’ submissions and exhibits) and is to facilitate public access to the hearings.
At times, she said, the parties give consent for disclosure of documents even in arbitrations being handle with ICSID rules, which grant the parties the right to keep the proceedings confidential.
For example, documents are available in a proceeding involving Eurogas Inc. and Belmont Resources Inc. v. Slovak Republic. The case is based on two bilateral investment treaties with different provisions on transparency: the Canada-Slovak Republic BIT and the US-Slovak Republic BIT, Palosek said. The tribunal decided to apply the more transparent provisions of the Canada-Slovakia treaty.
Polasek observed, “In ICSID cases, transparency provisions are often discussed at the beginning of a case, and we see an increasing amount of cases where the parties agree on very broad transparency provisions which are sometimes coupled with confidentiality provisions to protect sensitive business information by the redaction of documents.”
Disclosure Still Not the Norm
Nevertheless, most ICSID arbitrations continue to be conducted without disclosure of documents.
For example, in a proceeding involving Infinito Gold Ltd. and Costa Rica, the website page includes a list of developments in the case, but no documents.
Log is kept by ICSID for all matters. See “procedural details” for the list of actions in cases.
However, the available “materials” column for the Infinito matter is empty, as it is for the vast majority of pending matters, based on a FreedomInfo.org sampling. Looking at 10 matters in which the arbitration panel had begun the proceedings, in only one case were the materials being disclosed.
ICSID Watching Developments
“We are waiting to see the impact of all of these developments and our Member States’ feedback on them to assess whether further rule changes are necessary and desirable,” Polasek said. “In the meantime, we will continue to apply our high standards and to request permission by the parties to publish procedural decisions and the award in cases where they have not given us prior consent.”
In June 2104, Meg Kinnear, ICSID’s Secretary General, told FreedomInfo.org she intended to make proposals to address the level of transparency for arbitrations. She also indicated that website improvements were under way. Kinnear said at the time that she was promoted transparency with the confines of the current rules. (See previous FreedomInfo.org report.)
Looking ahead, Polasek observed:
Once the Mauritius Convention on Transparency comes into force, the UNCITRAL Rules on Transparency will apply to all treaty based investor-State arbitrations initiated under investment treaties concluded before April 1, 2014, if the investor’s State and the host State have both ratified the Mauritius Convention. So far, 17 countries have signed and one has ratified that Convention.
Many investment treaties being concluded now contain similar provisions to the UNCITRAL Annex, requiring the publication of the parties’ submissions and other case documents, including the transcripts of hearings, and providing access to hearings. The TPP provides for such full transparency in its Article 9.23 and other FTAs as well.
TPP refers to the Trans-Pacific Partnership still being negotiated.
The TPP’s investment chapter addresses the investor-state dispute settlement (ISDS) mechanism. (See related FreedomInfo.org report on criticism of the provision.)
New Website Launched
A new ICSID website, launched Jan. 1, 2015, has received “very positive feedback from all users,” Polasek reported.
The site now included videos from five public hearings (see https://livestream.com/ICSID) and almost 400 case documents (mostly decisions) since November 2014. “We are also linking all case materials published on sites other than ICSID to ensure maximum access to our users,”
The site also includes step-by-step description of each type of proceeding (see example) and charts with decisions on particular procedural topics (see example).
Filed under: IFTI Watch