Over the past few years, the US, Canada, and the EU have incorporated ‘transparency’ provisions into their investment treaties. Arbitration under those treaties thus will not be confidential, regardless of the arbitral rules governing them. By contrast, Russia’s 2016 regulation for the negotiation of investment treaties expressly provides for confidentiality of arbitration, including the award, unless both parties consent in writing to disclose information. This chapter traces the development of public disclosure and participation in investment arbitration. It is divided into three sections: public access to arbitral documents, third-party written submissions, and public access to arbitration hearings. Each section addresses developments under NAFTA Chapter 11, the evolution of the practice under the International Centre for Settlement of Investment Dispute (ICSID) Arbitration Rules, the approach taken by the new UNCITRAL Rules on Transparency, the status of other arbitration rules, and the practice of certain States as shown in their recent agreements.
