Transparency in International Commercial Arbitration-A Boon or Bane

Introduction

Transparency is a procedural notion that corresponds to openness, accessibility to information, clarity, and reliability of the judicial process¹. However, transparency in International Arbitration has increasingly become a hotly debated/much debated/ much discussed topic in recent years; whether to have or not to have transparency and to what extent, is still disputed. Moreover, achieving a single definition of transparency in international law is difficult because the international legal arena is a ‘universe of inter-connected islands’, where fragmentation seems to prevail over unity². Each area of international law has developed its own substantive and procedural rules and the international community has established as many international courts and tribunals as there are areas of international law. As a result, it seems that a single concept of transparency for all fields of international law cannot arise³.

Also due to rapidly increasing impact of activities of international institutions on society and the growing relevance of individuals as subjects of the International Community, it became evident that there is a dire need to have the decision making processes of international organisations very transparent and clear by increasing the accountability of the international institutions towards civil societies and moreover by giving access to the public to international dispute settlement mechanisms. The concept of Transparency is too broad and is generally mixed up with understanding “confidentiality”, “privacy” and “public access”.

While confidentiality of arbitration proceedings has always been, and still remains, one of the core attractions to users⁴, the rise in investor-State arbitration cases as well as the general public’s interest in arbitration has resulted in a demand for more openness and transparency in international arbitration proceedings in general⁵. Following this evolution of international arbitration, confidentiality and transparency are now both considered general values of international arbitration, which is in itself a difficult relation⁶. Though they have been described as “competing values”, some scholars see the possibility of adjusting one to the other depending on the specific case⁷. This may be the case for investment arbitration matters where procedural transparency is necessary for the public to be informed of whether a dispute exists and whether there is any wrongful behaviour on the part of a state⁸. For international commercial arbitration (hereinafter “ICA”), however, this determination requires more concern because both private and public interests could directly be involved in such disputes⁹, also human rights issues at stake whenever decisions are made behind closed doors.

Transparency vs. “Confidentiality”, “Public Access” and “Disclosure”

Transparency vs. “Confidentiality”

While we talk about the role of confidentiality, it is not wrong to say that confidentiality is one of the key advantages and strong features of commercial arbitration, which is usually mistaken with transparency in arbitration. It is well established that confidentiality draws parties to ICA as their preferred method of dispute resolution as transnational corporations believe that business secrets and confidential information will be better protected in ICA than in international litigation¹⁰.

In the 2010 survey conducted by Queen Mary (hereinafter “2010 Survey”), 62% of all respondents who took part said that confidentiality was “very important” to them, the highest option available for a response. Another 24% said that confidentiality was “quite important”, the second highest available option¹¹. The importance of confidentiality to users is further strengthened by the 2015 survey conducted by Queen Mary (hereinafter “2015 Survey”) whereby “confidentiality and privacy” was ranked as the second most valuable characteristic by participating in-house counsel¹².

Reasons how ICA can be affected by disputed understanding between Transparency and Confidentiality for different reasons.

Effects on ICA due to disputed understanding between Transparency and Confidentiality

• First, even though commercial arbitrations are usually conducted between private parties, one of the disputing parties can be a State, a State entity or a State instrumentality. In fact, a State can act both in its sovereign capacity (jure imperii) under public international law and participate in international commercial arbitrations in its private capacity (jure gestionis)¹³. In the latter case, the public interest can be involved in purely commercial international arbitrations.
• Second, due to this presence of public interest issues, the general public could be affected by the outcome of a commercial arbitration proceeding in several ways. Examples of public interests at stake in commercial arbitration include inter alia cases dealing with national defence issues, agriculture, a State’s oil, gas and other natural resources, commercial embargoes and telecommunications¹⁴.
• Third, transparency is fundamental in those commercial arbitration cases where misconduct or unlawful activities (for example, corruption, bribery, money laundering and fraud) have been committed by public officers or by officials of foreign transnational corporations¹⁵. In such cases, (transnational) public policy prevails over confidentiality. Fourth, confidentiality can also affect the development of the so-called autonomous arbitral legal order¹⁶.

It is pertinent that most arbitration statutes and arbitration rules do not contemplate a general principle of confidentiality¹⁷, whereas probabilities towards adoption of higher transparency in international arbitration is embraced by several institutional arbitration rules as well. ‘Progressive’ arbitration rules include those established by the American Arbitration Association (AAA Rules) , the International Chamber of Commerce (ICC Rules), the Chamber of Arbitration of Milan (CAM Rules) and the Society of Maritime Arbitrators (SMA Rules).

‘Progressive’ arbitration rules include those established by the American Arbitration Association (AAA Rules)¹⁸, the International Chamber of Commerce (ICC Rules)¹⁹, the Chamber of Arbitration of Milan (CAM Rules)²⁰ and the Society of Maritime Arbitrators (SMA Rules)²¹.

Confidentiality is the general rule concerning all aspects of the proceedings, in the arbitration rules of the American Arbitration Association²², it is noted that the hearings are also held privately²³ and unless the parties have agreed it is made a point that the awards are not published. However, the provision concerning the publication of arbitral awards allows the institution to publish ‘selected awards, orders, decisions, and rulings that have been edited to conceal the names of the parties and the identifying details’, unless the parties have decided otherwise²⁴.

As far as the ICC Rules are concerned , although proceedings are not generally open to third parties, still access is given to the proceedings if the parties and the arbitral tribunal have so agreed²⁵. An important innovative provision in the ICC Rules is that the confidentiality rule is reversed compared to the LCIA and Swiss Rules. Article 22(3) states that

“Upon the request of any party, the arbitral tribunal may make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information”²⁶.

This approach towards adoption of confidentiality proves that confidentiality is not the universal belief in the ICC Rules. If a party does not raise a request for confidentiality, the arbitral tribunal is unrestricted not to adopt this principle.

Transparency vs. “Public Access”

Public access enables open scrutiny of public officials and guards against misuse of power. In a simpler term, individuals right to access to a hearing is referred as public access. In order to understand the motivation behind the appeals for enhanced transparency in international commercial arbitration, differentiating transparency from public access is essential²⁷.

There is a notable discrepancy in the treatment of transparency and public access in international commercial arbitration given that the former is often seen as an imperative while the latter is seen as expendable²⁸. This difference in treatment stems from the objectives each concept seeks to achieve. Public access is an individual right that finds its roots in domestic considerations of fairness and justice. As one commentator notes, it would be nonsensical to insist that a Bra- zilian citizen has a right to attend an Austrian hearing governed by German law involving Chinese and Russian parties²⁹. On the other hand, several international tribunals espouse public access in a bid to ensure transparency. Consequently, although public access is an instrument for stimulating transparency, it is not an essential characteristic of transparency³⁰. The fundamental difference between the domestic and international approach to public access lies in the fact that domestic legislators refrain from overstepping on a fundamental right in a bid to avoid a backlash of the local population and human rights activists, while in international disputes, such domestic considerations are non-existent.

Transparency vs. “Disclosure”

Disclosure is primarily aimed at satisfying a specific regulatory purpose such as easing strains in unstable labour markets, educating consumers about the products they buy, sustaining healthy financial markets, or safeguarding the public against health and safety concerns³¹. While transparency deals with the manner in which information should be handled, disclosure focuses on the provision of substantive information³². Transparency applies to a myriad of activities within an institution irrespective of the type of information involved, while disclosure deals with the specific disclosure of an identifiable piece of material³³.

Although transparency and disclosure differ in nature, these concepts can coexist: the latter is an instrument to achieve the former. For example, arbitrators have to disclose any conflict of interest that may sway their opinion or affect their impartiality because such dis- closure allows arbitrators to be appointed in a transparent manner and limits the possibility of appeals of arbitral awards on the basis of bias³⁴. Disclosure obligations focus on substantive information, whereas transparency rules focus on how that information is conducted by a particular institution. Disclosure obligations target specific information for defined regulatory purposes, whereas transparency rules apply across the board to the activities of an institution, without regard to the nature of the information involved. Even if the two can be teased apart, they can also operate in tandem. Mandatory disclosure obligations can promote transparency when the availability of specific categories of information allows monitoring of decision-making.

How different lex arbitri and institutional rules deal with the issue of confidentiality-transparency?

While confidentiality in ICA may be advantageous for commercial parties as well as a key factor in users choosing arbitration, it is important to note that most jurisdictions provide for confidentiality in commercial arbitration proceedings only when it is established by the applicable law, by the lex arbitri or by the consent of all parties³⁵.

Lord Neuberger enunciated quite aptly the tensions and concerns that have been spurred by perhaps an overemphasis on confidentiality in his speech at the Chartered Institute of Arbitrators Centenary Celebration:

“I suppose that it may be that too much openness will kill off arbitration, but unnecessary privacy is a real concern. This is a difficulty with arbitration as a dispute resolution process recently identified by [Hong Kong Chief Justice] Geoffrey Ma. There have been intermittent calls for the publication of arbitral awards for decades”³⁶.

In light of the nature of ad hoc arbitrations, the determination of the scope of the confidentiality obligation of such arbitrations is determined by the parties’ agreement, whether it be in the form of express confidentiality provisions in the agreed set of arbitral rules, confidentiality requirements of the lex arbitri or confidentiality agreements between the parties themselves. It is very much clear that confidentiality in ICA proceedings is not the core reasons for users to enter into arbitration but also generally an accepted requirement of ICAs. Nevertheless, there are also binding reasons for the raising trend in increased demand for more transparency in ICA proceedings.

Arbitral institutions, while varying in their degree of involvement in an arbitration proceeding, no doubt take a number of decisions which influence the arbitral proceeding itself. These decisions include, amongst others, procedural decisions on consolidation of arbitrations, prima facie jurisdiction, appointment, confirmation and challenges of arbitrators, costs of arbitration, and scrutiny of awards³⁷.

In the past, arbitral institutions did not provide reasons when issuing such decisions. Such lack of transparency prompted complaints from users of institutional arbitration as well as the legal community as it resulted in frivolous applications and increased costs as parties were not aware of whether their applications would be successful³⁸. The lack of transparency also caused parties to distrust arbitral institutions.

The ICC in particular has recently announced a number of steps designed to increase the transparency of its institutional decision making³⁹. These steps include communicating reasons for decisions made on the challenge of an arbitrator, to initiate replacement proceedings and subsequently replace an arbitrator sua sponte, consolidation of arbitration proceedings and prima facie decisions on jurisdiction⁴⁰. It is important to note that such reasons will only be communicated by the ICC if the parties mutually agree and request for such reasons and that the ICC Court has full discretion to accept or reject such request⁴¹. The ICC also started publishing on its website the names of arbitrators currently sitting on ICC cases, their nationality, whom the appointment was made by and whether the arbitrator is a sole arbitrator, co- arbitrator or President⁴².

Furthermore, the LCIA has, since 2014, provided reasons to parties on its decisions with respect to challenges to arbitrators⁴³. The HKIAC also released a Practice Note on the challenge to arbitrators, which provides that HKIAC’s determination of a challenge will be communicated to the parties, the challenged arbitrator and, where applicable, other members of the tribunal⁴⁴. The Practice Note also states that the HKIAC is not obligated to provide such reasons⁴⁵. While the SCC does not provide in its rules an obligation to provide reasons on decisions on arbitrator challenges, it does periodically publish summaries of its decisions on arbitrator challenges⁴⁶.

The LCIA has also published data on the average costs and duration of LCIA arbitrators⁴⁷ as has the SCC⁴⁸. The SCC’s report further includes details on the size of their disputes and the manner in which tribunals apportion the costs of arbitration and legal representation⁴⁹. The stated aim of this report was to increase confidence and transparency in SCC practice.

Given the increase in use of ICA to resolve disputes and the reasons listed under Section IB above, there has been a rise in demand for transparency in ICA proceedings for the public domain. Supporters of increased transparency of ICA proceedings toward the public domain rely on the need for arbitrator accountability, the rule of law and the need for predictability and certainty in the law to guide commercial behaviour⁵⁰.

It is in the public domain’s best interest to have more insight into how arbitrators make their decisions, what arguments would be persuasive and what type of evidence is considered decisive⁵¹. It is also in the public domain’s best interest to be able to trace the lineage of jurisprudence produced by a particular arbitrator in determining whether or not the arbitrator should be re-appointed.

It is also in the pubic domain’s best interest to have the requisite resources to evaluate how arbitral tribunals are likely to interpret certain commercial clauses or arrangements, or decide on the consequences of particular commercial events in past arbitral awards.

The Role of the UNCITRAL Rules on Transparency

Since 2008, the UNCITRAL has officially recognised the relevance of ensuring transparency in investor-State dispute resolution⁵², and on April 1, 2014, the UNCITRAL Rules on Transparency were adopted, providing a set of procedural rules aimed at increasing transparency and public accessibility of treaty-based investor-state arbitrations⁵³.

There were three forms of transparency discussed by UNCITRAL Member States, namely a model clause for inclusion in the IIAs’ ISDS, specific arbitration rules and guidelines for States, arbitrators and parties involved⁵⁴. Delegations supported the idea of including legal standards on transparency as a supplement to the UNCITRAL Arbitration Rules⁵⁵, ‘in the form of clear rules rather than looser and more discursive guidelines’⁵⁶. UNCITRAL adopted the Rules on Transparency⁵⁷ that require disclosure of a wide range of information submitted to and issued by the tribunals, and facilitate participation by amicus curiae and non-disputing State parties. Thus, in order to contribute to clarifying the legal regime applicable to the two categories of submissions and to mark the differences, two different articles were included in the UNCITRAL Transparency Rules: Article 4, dealing with submissions by third persons; and Article 5, regulating submissions by a non-disputing Party to the treaty.

While here I focus on the UNCITRAL rules on Transparency it is important to know that they reflect a comprehensive trend towards recognising the significance of transparency as a means of promoting and ensuring effective democratic participation, moral governance, liability, sureness, and the rule of law. The UNCITRAL Rules on Transparency provide a level of transparency and public accessibility to arbitrated disputes that previously did not exist⁵⁸. While, the UNCITRAL Rules on Transparency are a major step towards increased transparency, Article 1 of the UNCITRAL Rules on Transparency limits their application to investment treaty arbitrations only. Commentators have called for widening the scope of the UNCITRAL Rules on Transparency to cover international commercial arbitration⁵⁹.

Such a widespread overhaul of the system is a complex task⁶⁰, and a more nuanced approach to confidentiality in arbitration may preserve the values of arbitration while simultaneously enhancing the competing values to be gained by greater transparency⁶¹. The duty of confidentiality should not be an absolute one; it must be nuanced and allow for important exceptions⁶².

Conclusion

Amongst confidentiality and transparency, I deem that the scales are rightly tipping in favour of the latter. Although confidentiality remains one of the pillars of ICA, it has to be reconciled with the fact that in our day and age, reluctance to become more transparent has increasingly been encountered with sinister suspicions of wrongdoing and equated with an unwillingness of individuals and institutions to assume responsibility for their decisions.

Not to forget Ultimately, the international arbitration community’s voluntary movement toward greater transparency was made by parties who have collectively decided that they need predictable, rule-based adjudication of their disputes. Having opted for a system that aims to bring a Rule of Law to international commercial disputes, parties and those providing legal services cannot pull the curtains around the system and turn out the lights⁶³. Transparency is an inherent feature of the Rule of Law⁶⁴. If international commercial arbitration’s users want the benefits of a rule- based system, they cannot reject the transparency that comes with it.

Given the evolution and rising use of ICAs versus national courts, the authors believe that the trend towards more transparency by arbitral institutions should continue. As evidenced by the Queen Mary International Arbitration Survey where discontent with the lack of insight into the decision making of arbitral institutions was raised, it is clear that parties welcome, and will increasingly expect greater transparency from arbitral institutions. As more arbitral institutions follow the lead of the HKIAC, ICC, LCIA, SCC and others who are taking steps to be more open about their decision making, such transparency within the narrow scope will become the norm. In this respect the balance should exceedingly favor transparency over confidentiality.

As for the wider scope of transparency, I believe that an increase in transparency is necessary and beneficial, but only if the parties agree to such transparency. As ICA is a contractual mechanism which requires parties’ consent, I believe that it would be a contractual violation if there was more transparency in the arbitral proceedings unless the parties have expressly agreed to such transparency to the public domain. Although I believe that increased transparency in respect of publication of awards may be warranted, I also believe that one cannot simply brush confidentiality, one of the hallmarks of arbitration, aside so lightly. An example of taking both considerations into account would be the publishing of redacted or sanitized awards. As such, the proper balance in respect of the wider scope of transparency leans slightly towards transparency, subject to the protection of legitimate concerns of confidentiality that the users of ICA may have.

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1. Natalie Limbasan & Loretta Malintoppi, Living In Glass Houses? The Debate On Transparency In International Investment Arbitration, Bcdr International Arbitration Review, Volume 2, 31-58 (2015).
2. Pauwelyn, J, “Bridging Fragmentation And Unity: International Law As A Universe Of Inter-Connected Islands”, 25 Michigan Journal Of International Law (2004) 903.
3. See For Instance, Bianchi, A And Peters, A, Eds, Transparency In International Law (Cambridge University Press, Cambridge, 2013). The Authors Analysed The Concept Of Transparency As Applied To The Several Fields Of International Law (Ie, International Environmental Law, International Economic Law, International Human Rights Law, International Health Law, International Humanitarian Law, International Peace And Security Law), Showing That A General Definition Of ‘Transparency In International Law’ Does Not Exist.
4. Gary B. Born, International Commercial Arbitration 2780 (2d Ed. 2014); Nigel Blackaby Et Al., Redfern And Hunter On International Arbitration 124 (6th Ed. 2015).
5. Gabriele Ruscalla, Transparency In International Arbitration: Any (Concrete) Need To Codify The Standard?, 3(1) Groningen J. Int’l L. 1, 8 (2015).
6. Id. At 6.
7. Id.
8. See Generally Hong-Lin Yu & Belen Olmos Giupponi, The Pandora’s Box Effects Under The Uncitral Transparency Rules, 2016(5) J. Bus. L. 347 (2016).
9. Ruscalla, Supra Note 2, At 6.
10. See Blackaby Et Al., Supra Note 1, ¶ 2.192; See Generally Ruscalla, Supra Note 2.
11. School Of International Arbitration, Queen Mary Univ. Of London, 2010 International Arbitration Survey http://www.arbitration.qmul.ac.uk/
12. Sch. Of Int’l Arb., Queen Mary Univ. Of London, 2015 International Arbitration Survey: Improvements And Innovations In International Arbitration 6 (2015),
    http://www.arbitration.qmul.ac.uk/
13. Heiskanen, V, “State As A Private: The Participation Of States In International Commercial Arbitration”, 7 Transnational Dispute Management (2010) 1, 2
14. See For Instance, Romero, Es, “Are States Liable For The Conduct Of Their Instrumentalities? Icc Case Law” In Gaillard, E And Younan, J, Eds, State Entities In International Arbitration (Iai Series On International Arbitration No 4, Juris Publishing, 2008), 31. See Also Icc Commission On Arbitration And Adr, Report: States, State Entities And Icc Arbitration, Icc Document 862-1 Eng, 2012, At <Iccwbo.Org/Advocacy-Codes-And-Rules/Document-Centre/2012/Icc-Arbitration-Commission- Report-On-Arbitration-Involving-States-And-State-Entities-Under-The-Icc-Rules-Of-Arbitration/> (Accessed 5 May 2015), 3–4: The Report Gives States And State Entities Recommendations Concerning Their Involvement In (Private Contractual) Commercial Arbitrations And Investment Arbitrations. ‘As Arbitration Agreements For Commercial Arbitration Involving States And State Entities Are Formed Differently From Those In Investment Arbitration, The Recommendations Regarding Each Will Be Set Out Separately’
15. Feliciano, Supra Nt 9, 20.
16. For A Definition Of The Notion Of ‘Autonomous Arbitral Legal Order’, See Fouchard, P, “L’autonomie De 
L’arbitrage Commercial International”, 1965(1) Revue De L’arbitrage (1965) 99; Oppetit, B, “Philosophie De L’arbitrage Commercial International”, 120(4) Journal Du Droit International (1993) 811; Gaillard, E, “Souveraineté Et Autonomie: Réflexions Sur Les Représentations De L’arbitrage International”, 134(4) Journal Du Droit International (2007) 1163; Gaillard, E, “L’ordre Juridique Arbitral: Réalité, Utilité, Spécificité”, 55 Mcgill Law Journal – Revue De Droit De Mcgill (2010) 891; Gaillard, E, Legal Theory Of International Arbitration (Martinus Nijhoff, Leiden, 2010); Gaillard, E, “International Arbitration As A Transnational System Of Justice”, In Van Den Berg, Aj, Ed, Arbitration: The Next 50 Years, (Icca Congress Series 16, Kluwer Law International, Alphen Aan Den Rijn, 2012) 66; Gaillard, E, “Transcending National Legal Orders For International Arbitration”, In, Van Den Berg, Aj, Ed, International Arbitration: The Coming Of A New Age? (Icca Congress Series No 17, Kluwer Law International, Alphen Aan Den Rijn, 2013) 371.
17. Kluwer Arbitration Blog, Mourre, A And Vagenheim, A, Arbitral Jurisprudence In International Commercial Arbitration: The Case For A Systematic Publication Of Arbitral Awards In 10 Questions, 28 May 2009, At http://arbitrationblog.kluwerarbitration.com
18. American Arbitration Association, International Dispute Resolution Procedures (Including Mediation And 
Arbitration Rules), Effective 1 June 2014 (Aaa Rules).
19. International Chamber Of Commerce (Icc), Icc Rules Of Arbitration, Effective 1 January 2012 (Icc Rules).
20. Chamber Of Arbitration Of Milan, Arbitration Rules, Effective 1 January 2010 (Cam Rules).
21. Society Of Maritime Arbitrators, Maritime Arbitration Rules, Effective 23 October 2013 (Sma Rules).
22. Article 23(6), Aaa Rules
23. Article 37(2), Aaa Rules
24. Article 30(3), Aaa Rules
25. Article 26(3), Icc Rules
26. Article 22(3), Icc Rules
27. Rogers, Supra Note 51, At 1312
28. Id. At 1305
29. Id. At 1306
30. Id.
31. Id. At 1310
32. Id.
33. Id.
34. Paula Hodges, The Perils Of Complete Transparency In International Arbitra- Tion – Should Parties Be Exposed To The Glare Of Publicity?, 3 Paris J. Of Int’l Arb. 589, 596 (2012).
35. Ruscalla, Supra Note 2, At 10
36. David Neuberger, Lord Neuberger Of Abbotsbury, Speech At Chartered Institute Of Arbitrators Centenary Celebration, Hong Kong: Arbitration And The Rule Of Law 22 (Mar. 20, 2015), https://www.supremecourt.uk/.
37. See Rajinder Bassi & Jon Newman, Increased Transparency In International Commercial Arbitration,Financier Worldwide (Aug. 2016), https://www.financierworldwide.com/ (Setting Out Latest Developments In The Hong Kong International Arbitration Centre [Hereinafter Hkiac], Icc, Lcia And Stockholm Chamber Of Commerce [Scc] Rules)
38. Id
39. Id.
40. Id.
41. Id
42. Icc Begins Publishing Arbitrator Information In Drive For Improved Transparency, Icc (June 27, 2016), Https://Iccwbo.Org/Media-Wall/News-Speeches/Icc-Begins-Publishing-Arbitrator-Information-I N-Drive-For-Improved-Transparency/.
43. See Lcia Arbitration Rules Art. 29.1 (2014).
44. Hkiac, Practice Note On The Challenge Of An Arbitrator (Effective Oct. 31, 2014), Http://Hkiac.Org /Sites/Default/Files/Ck_Filebrowser/Pdf/Arbitration/4_Practice%20note_2014.Pdf.
45. Id.
46. See Bassi & Newman, Supra Note 51.
47. Lcia Releases Costs And Duration Data, Lcia (Nov. 3, 2015), Http://Www.Lcia.Org/News/Lcia- Releases-Costs-And-Duration-Data.Aspx.
48. Celeste E. Salinas Quero, Costs Of Arbitration And Apportionment Of Costs Under The Scc Rules, Arb. Inst. Stockholm Chamber Com.(Feb. 2016), Http://Sccinstitute.Com/Media/93440/Costs-Of-Arbitration_Scc-Report_2016.Pdf.
49. Id.
50. Amy Seow, More Transparency In International Commercial Arbitration Is A Good Thing,13(2017), Http://Internationalarbitrationlaw.Com/Wp-Content/Uploads/2017/07/Ysiac-Essay-Entry-Pd F.Pdf.
51. Id. 12
52. Uncitral, Report Of United Nations Commission On International Trade Law, 16 June–3 July 2008, (Forty-First Session), A/63/17, Para 314
53. Carmody, Supra Note 20, At 119.
54. Uncitral, Note By The Secretariat: Settlement Of Commercial Disputes: Preparation Of Rules Of Uniform Law On Transparency In Treaty-Based Investor-State Dispute Settlement, 5 August 2010, A/Cn9/Wgii/Wp160/Add 1, 5 August 2010, Paras 22–31
55. Uncitral, Report: Settlement Of Commercial Disputes: Preparation Of A Legal Standard On Transparency In 
Treaty-Based Investor-State Arbitration, Working Group Ii (Arbitration And Conciliation) Of The Work Of Its Fifty-Third Session (Vienna, 4–8 October 2010), A/Cn9/712, 20 October 2010, Para 76
56. Uncitral, Report Of Working Grou Pii(Arbitration And Conciliation)On The Work Of Its Fifty-Fourth Session, (New York, 7–11 February 2011), A/Cn 9/717, 25 February 2011, Para 26
57. Uncitral, Report: Settlement Of Commercial Disputes: Preparation Of A Legal Standard On Transparency In Treaty-Based Investor-State Arbitration, Working Group Ii (Arbitration And Conciliation) Of The Work Of Its Fifty-Third Session (Vienna, 4–8 October 2010), A/Cn9/712, 20 October 2010, Para 76
58. Laurence Boisson De Chazournes & Rukia Baruti, Transparency In Investor- State Arbitration: An Incremental Approach, 2 Bcdr Int’l Arb. Rev. 58, 68 (2015).
59. Argen, Supra Note 277, At 208.
60. Carmody, Supra Note 20, At 155
61. Buys, Supra Note 49, At 121
62. Born, Supra Note 142, At 2817
63. Like Transparency, “Rule Of Law” Is A Term That Is Often Misunderstood And Ill-Defined. This Article Refers To “Rule Of Law” As A Simplified, Ideal Type That Envisions Clear And Determinant Rules, As Opposed To Opaque And Subjective Standards, That Ensure Decisions Are “Ruled” By “Law.” See Generally Richard H. Fallon, Jr., “The Rule Of Law ” As A Concept In Constitutionaldiscourse, 97 Colum. L. Rev. 1 (1997) (Identifying Four Ideal Types Of The Rule Of Law, None Of Which Captures The Nuance And Complexity Of The Concept, But Each Of Which Are Invoked By Various Constituencies In Arguing For Particular Constitutional Approaches Or Outcomes). In Addition, This Article Elaborates On International Arbitration’s Transition From A Dispute Resolution System To A System Of Justice. See Also Catherine A. Rogers, The Vocation Of Internationalarbitrators,20 Am. U. Int’l L. Rev.957, 970-75 (2005) (Discussing The Imperfect Regulation Of The Imperfect Market).
64. This Is Lon Fuller’s Essential Point That The Rule Of Law Requires Publicly Accessible Rules That Are Known In Advance. See Fallon, Supranote 153, At 2 (Citing Lon L. Fuller, The Morality Of Law 42, 44 (Rev. Ed. 1964)).

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This article is written by Aastha Dhawan. The author can be contacted via email at aastha@bnblegal.com

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