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CYIL 7 ȍ2016Ȏ

may in part explain the surge of criticism. This deficiency in terms of accountability

and legitimacy calls for remediation. At the same time, the remedies should avoid

sacrificing the gains of investor-State arbitration, which do exist as well. Looking at

the big picture, one can cite three. First, neutrality or, in other words, distance of the

decision-makers from politics – the depoliticization for which investment arbitration

was praised – and from business interests at the same time. Second, finality and

enforceability of the award; the former saves time and costs, and the latter ensures

the ultimate effectiveness of the system. And, third, the manageability or workability

of the process; it is “light” compared to “heavier” permanent adjudicatory bodies

requiring significant resources, such as, for instance, the World Trade Organization

(WTO) Legal Affairs and Rules Divisions and Appellate Body (AB) Secretariat.

Thus, the criticisms have led some interest groups and scholars to fundamentally

disagree with the regime in itself and to advocate for dismantling it or at least radically

transforming it. Suggestions for reforms of the investor State arbitration system are

in fact not new; they had already been advanced more than a decade ago,

and

the creation of appellate mechanisms or permanent bodies tailored for investment

disputes has been contemplated on several occasions during the last decade. The

most significant of these proposals deal first with proposals for appeal mechanisms,

specifically those put forward by the ICSID and OECD, as well as the programmatic

language contained in a number of IIAs. They address next the pioneering initiatives

towards the creation of permanent investment bodies in recent IIAs concluded by the

EU, in particular the Canada-EU Comprehensive Economic and Trade Agreement

(CETA) and the EU-Vietnam FTA.

In fact, investor-State arbitration has been moving towards more “openness”

thanks to significant steps which include (i) the amendment of arbitration rules (see,

e.g., the 2006 amendments to the ICSID Rules);

(ii) the insertion of transparency

provisions in IIAs;

and (iii) foremost and on a more global scale, the adoption of

the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration

(“Transparency Rules”) and of the Mauritius Convention.

In 2013 the UNCITRAL adopted the Rules on Transparency in Treaty-based

Investor-State Arbitration (the “Transparency Rules”) together with a new Article 1(4)

of the UNCITRAL Arbitration Rules (as revised in 2010). The Transparency Rules

introduced a significant degree of publicity of the arbitral proceedings, by providing

inter alia

, for the public disclosure of awards and other key documents (Articles 2

and 3), open hearings (Article 6) and submissions by non-disputing parties (Articles 4

See, for a particularly “visionary” view which would anticipate many of the changes, Wälde (2007).

AURÉLIA ANTONIETTI (2006), The 2006 Amendments to the ICSID Rules and Regulations and

the Additional Facility Rules

, ICSID Review – Foreign Investment Law Journal

, Vol. 6(2), pp. 427-448;

UNCTAD (2012),

Transparency, A sequel,

Series on Issues in International Investment Agreement II,

pp. 43-47.

UNCTAD (2012), pp. 36-41.