Current Use of the UNCITRAL Arbitration Rules in the Context of Investment Arbitration

UNCITRAL Arbitration Rules play their part in international investment arbitration; between 20 to 30 per cent of the publicised investment cases are conducted under these Rules. NAFTA and many bilateral investment treaties provide an option for arbitration under the UNCITRAL Rules. In light of ongoing work for the revision of the Rules, it is time to reconsider their suitability for the special needs of investment arbitration and to ask whether the revision of the Rules should include special provisions in this respect. In the discussion on the specific needs of investment arbitration, much attention was paid to the question whether and to what extent transparency of the proceedings should be established in investment arbitration. An overall appraisal of the suitability of the Rules for investment claims must include other aspects as well, not to forget that, in contrast with ICSID arbitration, in UNCITRAL investment arbitration the role of state courts in enforcement and annulment procedures comes into play. A review of recent arbitral and court decisions relating to UNCITRAL investment arbitration shows that UNCITRAL investment arbitration is still an attractive alternative to ICSID arbitration. Decisions under the UNCITRAL Rules have given answers to key issues of transparency in investment arbitration. These decisions have achieved a balance between the interests of those who wanted to open the proceedings to non-disputing parties and the public, on the one hand, and the interests of the parties to have an efficient dispute settlement without undue delay, extra costs and lack of confidentiality, on the other, on the basis of a flexible interpretation of article 15 of the Rules on the power of the tribunal, and article 25(4) on confidentiality. The decisions may serve as an inspiration for the amendment of the Rules and, if such amendment is not carried out, they will give guidance in future UNCITRAL arbitration proceedings involving investment claims.