I. INTRODUCTION
In a 2005 study on international commercial arbitration, UNCTAD predicted
that the growth of investment treaty arbitration would have a significant impact on
international commercial arbitration, but that the nature of that impact was not yet
clear.1 That same year, Barton Legum, a former Chief of the NAFTA Arbitration
Division in the Office of the Legal Adviser at the U.S. Department of State,
attempted to identify investment treaty arbitration’s most significant contributions
to international commercial arbitration. He singled out two areas: the way the
arbitral community currently perceives the matter of confidentiality, and the
impact of treaty arbitration awards on procedural issues.2 Nine years later,
UNCTAD’s prediction has proven to be true: the growth of investment treaty
arbitration has had and continues to have a significant impact on international
commercial arbitration.
Part II of this article describes how, as Legum accurately predicted, the trend
towards greater transparency in investor-state arbitration has called into question
the traditional understanding of confidentiality in international commercial
arbitration. Part II first looks at the traditional understanding of confidentiality.
Against this background, it examines the trends towards greater transparency in
investment arbitration. It then turns to the ongoing debate this drive towards
transparency has prompted within the commercial arbitration community, and the
recent changes adopted by the main institutional providers of commercial
arbitration to yield additional transparency. Finally, it concludes by predicting that
commercial arbitral proceedings will become more transparent, because over time,
an increasing number of practitioners will find it “normal” to make information
about proceedings more available.
With regard to Legum’s assertion regarding the influence of investment treaty
arbitration on procedural issues, while it raises a series of interesting points, the
impact is, the authors believe, less significant. Therefore, we will not address this
assertion here.
