By Toby McIntosh
Meg Kinnear, the Secretary General of the World Bank’s international arbitration body, intends to make proposals to address the level of transparency for arbitrations, she told FreedomInfo.org on June 4.
Also in the works is a new website that will include more information and improved search capabilities, she said, hoping for an August unveiling.
Kinnear has promoted transparency with the confines of the current rules at the International Centre for Settlement of Investment Disputes, but ICSID’s rules require less transparency than found in some other arbitration regimes. (See previous FreedomInfo.org report.)
Seeing few problems with operating arbitrations in a more open way, Kinnear plans to include transparency proposals in the next “package” of rules changes. It won’t be ready before the October annual meeting of the governing body. Deliberations on proposed changes would involve a public consultative process that could take years.
Kinnear said one option could be to track the recent reforms of the UN arbitration organization, UNCITRAL, the United Nations Commission on International Trade Law, whose government membership is almost identical to that of ICSID. (See previous FreedomInfo.org report on UNCITRAL.)
ICSID adoption of the UNCITRAL standards would be major advance over the status quo at ICSID; leading to publication of all orders and awards and open-door arbitrations, among other things.
Stronger transparency provisions like those of UNCITRAL, are already contained in some treaties and are becoming more common in new bilateral treaties, Kinnear pointed out, noting recent drafts of European Union-Canadian accords.
“So it is kind of de facto happening,” Kinnear said. “What treaties seem to be saying is, this is the standard for transparency that we will have.”
ICISID has handled arbitrations under more liberal transparency regimes, she said, and can do so in a cost-effective way.
Kinnear, who was involved in the UNCITRAL deliberations that concluded in 2013, said the alternate standards are “quite suitable” for international arbitrations, although she declined to specifically endorse or discuss the pros and cons of various transparency options. She said that a consultation package for ICSID might offer various alternatives.
Rules Package Planned
The next rules package likely will cover many other topics, some as significant as whether to create an appeals system, which was proposed but not adopted by member states in 2006, the time of the last rules changes.
Also on the possible agenda:
– Appointment of emergency arbitrators,
– Cost issues,
– Consolidation of cases, and
– Codes of ethics for arbitrator
“The strategic question is how many things do you seek to amend in one go,” she commented.
Kinnear can initiate a rule change process by consulting with the governing Administrative Council, which would eventually need to reach consensus on any rule changes.
At the moment, however, the pressing priority is to finish the creation of a new website to replace a 2007 model.
Improved Website in Works
The new website will include more benchmark data including:
– the names of the parties and their nationalities,
– the names of counsel,
– the names of arbitrators and who appointed them,
– industry categories using World Bank classifications,
– a subject matter description, and
– the name of the law or treaty involved.
A better search system will permit queries on these and other fields, she said.
Another new feature will describe the ICSID process more fully, including with the use of video.
The new website will not include a description of the specific nature of the complaint. Under the new UNCITRAL rules, such detail would become clear through the disclosure of the “notice of arbitration” and the “statement of claim.” These documents are not disclosed without agreement by the parties in ICSID proceedings.
The website will continue to have the capacity to handle arbitrations conducted under the more liberal transparency rules of certain investment dispute treaties, which can mean the posting of more documents and the webcasting of hearings.
Viewership may not be large, Kinnear noted, but greater transparency is “demystifying.”
“It’s not the attendance, it’s the opportunity,” she said.
Investor-State arbitrations at ICSID and elsewhere have been controversial, and, defenders say, misunderstood.
“If something is behind closed doors people assume there is something terribly exciting that they ought to know,” Kinnear said.
Transparency Promotion Ongoing
“We have done a lot of work on transparency within the confines of the ICSID rules,” Kinnear said, who has led the organization since 2009.
A retrospective “transparency project” involved asking all past parties to agree to publish arbitration orders. Under ICSID’s rules, either party can prevent publication.
Materials received were put on the website, although the magnitude of the response was not quantified.
An ongoing campaign to encourage transparency is a “draft procedural order” given to all parties at the beginning of an arbitration that among other things promotes the posting of final orders.
When parties don’t agree to publish the arbitrators’ decisions, the ICSID Secretariat can publish extracts about the legal reasoning.
There has been an effort to catch up on this, she said, and about 10 summaries are in the works, but it’s a lower priority than handling cases and there are limited resources, she said.
ICSID is prompt on posting a log of “benchmark moments” about pending matters, short descriptions that go up virtually overnight, she said.
Filed under: IFTI Watch