TRanSPaREnCY anD ConFIDEnTIaLITY REQuIREMEnTS In InVESTMEnT TREaTY aRBITRaTIon

he values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration. Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings. The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them. There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.It is in this connection that this article makes an in-depth analysis of how investment arbitration frameworks have approached the questions of transparency, confidentiality and amicus curiae participation over the years. The article assesses and explores similar issues within the International Convention on the settlement of investment disputes between States and nationals of other States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis of celebrated cases falling within each category. The article further elaborates the transparency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based InvestorState Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.

The values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration.Transparency is considered to be one of the key aspects of good governance and corporate social responsibility.It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors.Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism.However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings.The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them.There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978.The study also makes a critical analysis

Introduction
Transparency is considered to be one of the key aspects of good governance and corporate social responsibility.it requires the government to publish all documents and avoid secrecy in its administration.in a general sense, the term "transparency" is not immediately associated with international law.however, it has lately become a foundation of international law due to the active participation of public and nongovernmental organisations (ngos) in globa l governance. 1 since the 2000s, increasing recognition has been given to transparency in international dispute settlement processes.This has been the case with amicus curiae briefs.Transparency is an evolving concept and has become increasingly evident in the practice of investor-state dispute settlement (isDs).The term "transparency" in international investment law connotes that host states have an obligation to publish all of the legal rules, regulations and other statutory requirements affecting investors. 2it is pertinent to note that in relation to amicus curiae briefs, World Trade organization (WTo) decisions have undeniably influenced investment treaty arbitral awards. 3n the other hand, confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism.however, it has different dimensions in the context of investor-state disputes.Confidentiality in international investment law means the evidence, claims, documents, counterclaims, any other information prepared for and exchanged during the course of arbitration, awards, and any other decisions cannot be disclosed to any third parties.it also restricts the participation of amicus curiae in the arbitral process.4 it is significant to note that in the recent past the investment treaty arbitral tribunals have witnessed the increased participation of ngos as non-disputing parties in order to gain access to these forums as amicus curiae.The acceptance of amicus briefs clearly shows the public interest and principles of transparency.however, it is noted that confidentiality still remains a general rule in investment arbitration, because amicus curiae are not allowed to take part in the arbitration proceedings and also refused access to documents.But the competing values between confidentiality and transparency have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them.5 There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.
it is in this connection that this paper reiterates how investment arbitration frameworks have approached questions of transparency, confidentiality and amicus curiae participation over the years.in line with the central theme of this paper, section 1 sets the legal framework governing transparency in investment arbitration.section 2 examines the practice of transparency, confidentiality and public interest representation in the north american Free Trade agreement (naFTa) rules.section 3 assesses and explores similar issues within the international Convention on the settlement of investment disputes between states and nationals of other states (iCsiD) framework.The study also makes an in-depth analysis of celebrated cases falling within each category.section 4 elaborates the transparency requirements in the united nations Commission on international Trade law (unCiTral) framework including recently adopted unCiTral rules on Transparency, 2013 and the mauritius Convention on Transparency, 2014.The final section, section 5, of the paper suggests a number of possible ways to resolve the competing interests between transparency and confidentiality., 11 (2013); see the critique on the system in Kirsten mikadze, Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement, 12(1) Journal of international law and international relations 35, 66 (2016).

Legal Framework Governing Transparency in International Investment Arbitration
Transparency plays a vital role in many of the on-going debates in international investment law such as those concerned with fair and equitable treatment, expropriation, compensation, full protection and security, and publication of awards. 6ransparency also touches on the feasibility of amicus curiae participation in investorstate dispute settlement proceedings, access to information and documents, and publication of investment arbitral awards.
notable international legal instruments such as the iCsiD Convention, 1965, the united nations Convention on the recognition and enforcement of Foreign arbitral awards, 1958 (the new York Convention), naFTa, 1994 as well as the unCiTral arbitration rules, 1976 all play a significant role in ensuring transparency in the investment arbitration system.The comprehensive examination of relevant provisions of transparency, confidentiality and amicus requirements are laid down in Table 1 below.
it is pertinent to note that while these legal instruments are accessible to everyone, the state of affairs under stand-alone "bilateral investment treaties" (BiTs) are worked out in closed processes and controlled by government bureaucrats.The earlier scenario of reduced public participation in investment arbitration changed after 1995 with civil societies strongly registering their participation in investment arbitration through amicus curiae submissions. 7This situation has led to the conducting of mandatory public review while drafting a new model BiT.

Chapter Eleven of NAFTA
naFTa aimed at creating a trilateral trade group between the usa, Canada and mexico.in particular, Chapter eleven of the agreement sought to protect foreign investors from discrimination by host states and to facilitate settlement of investorstate disputes.it may be noted that this is one of the first such agreements to allow foreign investors to directly challenge the host state through an arbitral mechanism. 8Therefore, investors can initiate arbitration pursuant to any one of the methods stipulated in article 1120, either through the iCsiD Convention, 1965 or the additional Facility rules of iCsiD, 1978 or the unCiTral arbitration rules, 1976.naFTa is notable for some of its transparency provisions.For instance, article 1126(13) requires that "public register of arbitration claims… be maintained by the naFTa secretariat." 9 however, it also provides that publication of arbitral awards is possible only with the consent of the parties. 10nonetheless, in practice this provision is restricted only to the arbitration claims initiated against mexico, as the other naFTa members often resort to the publication of awards even without the consent of the parties. 11in the case of public hearings, all naFTa members are committed to open hearings with the mandatory consent of the disputing parties.-Prohibits the publication of awards without the consent of the parties.
-however, iCsiD can publish excerpts of the legal reasoning, even without the consent of the parties

Article 3 of 2013 Rules:
-Wide range of documents mandatory and automatically disclosed to the public, but subject to certain exceptions mentioned in article 7.
-The award can be made publicly available even without the consent of the parties.-it also includes the contents of the award coming to the knowledge of the arbitrator.

Rule 15(1):
-no third persons except members of the tribunal are allowed to take part in the deliberations of the tribunal Article 7(2) of 2013 Rules: -Provides an exhaustive list of confidential or protected information which will give rise to the exception for transparency.
Article 25(4) of 1976 Rules: -The hearings shall be held in camera, and the parties have to maintain the confidentiality of all documents submitted for the purpose of court proceedings.

Article 28(3) of 2010 Rules:
-all hearings are to be kept confidential 4

Third-Party Submissions
Article 1128: -upon written notice to the disputing parties, third parties may make submissions to the tribunal.
-They can be filed for the purpose of interpretation of the naFTa agreement

Rule 37(2):
-after consulting the disputing parties, the tribunal may allow amicus submissions.
-They can be filed by a person or entity that is not a party to the dispute.
-The subject matter should be within the scope of the dispute Article 4 of 2013 Rules: -Provides the standard for a third party who is not a disputing party and not a party to the treaty.

Article 5 of 2013 Rules:
-sets a standard for nondisputing parties, who are not a disputing party, but a party to the Treaty.
Articles 4(6) and 5(5) of 2013 Rules: -ensures the equal opportunity of the disputing parties to convey their observations in the amicus submissions

Amendments and Clarifications
as noted above, the naFTa agreement did not incorporate very detailed provisions providing for transparency in the investor-state dispute settlement process.however, the relevant provisions were later incorporated through amendment of naFTa in 2003 and supported by clarifications by the Free Trade Commission (FTC) in october 2001, 13 2003 14 and 2005 15 providing for the participation of amicus curiae in investment arbitration. 16The FTC clarification of 2005 (i.e.FTC statement, 2005)  contained various procedural aspects regarding submissions from "a person or entity that is not a disputing party" (para. 1 of the FTC statement, 2005).The scope of the FTC statement, 2005 is much broader than article 1128 of naFTa, and the content of the statement is similar to the additional procedures adopted by the WTo's appellate Body in the EC-Asbestos dispute. 17

Practice Under NAFTA
Before the emergence of naFTa, confidentiality was the norm and transparency the exception.however, the present situation is quite uncertain, as neither naFTa nor other arbitral rules presuppose the status of confidentiality in matters of arbitration. 18in practice, arbitral tribunals have generously allowed transparency, provided that openness should maintain a balance between the confidentiality concern and the transparency burden of investors. 19The subject matter of disclosure may vary from case to case: for instance, in Ethyl v. Canada 20 the naFTa tribunal restricted disclosure only to the investor's statement of claim, statement of defence and the orders of the tribunal. 21  26 June 2003, paras.231-233; vanDuzer 2007, at 699.   20   Ethyl Corporation v.The Government of Canada, unCiTral (naFTa), award on Jurisdiction, 24 June 1998, 38 i.l.m. 708; it is important to note that this is the first Chapter eleven arbitration instituted before the naFTa Tribunal and administered under the unCiTral arbitration rules, 1976 (hereinafter ethyl award).
disclosures was extended to the written submissions, transcripts of oral submissions, amicus curiae briefs and correspondence from the tribunal. 22in order to understand the current practice, it is important to discuss the celebrated cases in detail.

Amicus Curiae Briefs Under NAFTA
it is important to note that the earlier claims in cases such as Ethyl 23 and Metalclad 24 were instituted by the parties against each other, and no third parties sought to submit an amicus curiae brief to the arbitral proceedings.The tribunal in the Ethyl case held that no transcripts or accounts of oral submission should be published without permission of the parties. 25however, in Metalclad the tribunal entirely rejected mexico's contention on confidentiality and held that neither naFTa nor iCsiD additional Facility rules contain an express restriction on freedom of [the] parties.Though it is frequently said that one of the reasons for recourse to arbitration is to avoid publicity unless the agreement between the parties incorporates such a limitation, each of them is free to speak publicly of the arbitration. 26llowing the success of the Metalclad award, non-disputing parties also sought to take part in naFTa Chapter eleven arbitration. 27The first recognition for the participation of amicus curiae in investment arbitration came before the naFTa tribunal in the celebrated case of Methanex Corporation v. USA. 28o validate these arguments, the following subsections will discuss Methanex and other seminal cases.

Methanex v. United States of America
The case relates to the regulation of "methyl tertiary butyl ether" (mTBe) for the production of gasoline.mTBe is used as a fuel additive and also as a source of octane and oxygenate. 29in due course, a scientific study was conducted on mTBe, and the result of the study showed that the use of the chemical-based oxygenates causes a serious threat to the environment and public health.Following this study, in 1999 the state of California imposed a ban on the sale of gasoline manufactured with mTBe. 30he claimant, methanex, was a Canadian company that was considered one of the primary producers of methanol and it used mTBe as one of their components.subsequent to the ban imposed by California, the methanex Corporation initiated arbitration proceedings against the united states under Chapter eleven of naFTa complaining of expropriation, and asked for us$970 million in compensation for its losses. 31The claimant alleged that the executive action violated various provisions of naFTa, such as article 1102 (national treatment), article 1105 (minimum standard of treatment) and article 1110 (expropriation and compensation).
During the proceedings, the tribunal received first-ever amicus briefs from the Canadian international institute for sustainable Development (iisD), and a joint brief from three us-based ngos, Bluewater network of earth island institute, Communities for a Better environment and the Centre for international environmental law (collectively known as earth Justice).Their request included permission to make oral and written submissions, to participate in the proceedings, to take part in the judicial proceedings, to review memorials and other submissions, and to be given the status of observer. 32The legal basis for these requests relied on article 15 of the unCiTral arbitration rules, 1976. 33he tribunal heard the petitions together in view of the similarities in the submissions. 34The tribunal relied on the discretion and "procedural flexibility" of the unCiTral arbitration rules to determine the authority of the tribunal to accept amicus curiae submissions. 35The tribunal ultimately accepted the written submissions from the petitioners and stated that it had jurisdiction to address the amicus standing  art.15(1) of the unCiTral arbitration rules states that, "subject to these rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case." 34 Knahr 2007, at 330.   35   Paras.26 and 27 of the methanex amicus order.under article 15(1) of the unCiTral arbitration rules. 36The tribunal strongly relied on the Carbon Steel dispute, 37 wherein the appellate Body held that it had the power to accept amicus briefs under article 17.9 of the understanding on rules and Procedures governing the settlement of Disputes (Dsu).The tribunal furthermore examined the legal provisions of naFTa on the issue of amicus submissions and observed that no provision in Chapter eleven either explicitly supports or rejects the amicus submissions. 38accordingly, the tribunal was convinced that "the legal nature of arbitration remains wholly unchanged" even after the admission of third-party submissions. 39owever, the determination of other requests such as to participate in proceedings, to review memorials and to declare observer status raised serious debate over issues of confidentiality and privacy.The tribunal realised the importance of public concerns in respect of the arbitration taking place and observed that there is an undoubtedly public interest in this arbitration, therefore the arbitral process could benefit from being perceived as more open or transparent or conversely be harmed if seen as unduly secretive. 40 this regard, the tribunal's willingness to accept amicus submissions not only supports this arbitration matter in particular, but also the arbitral process in general.41 The tribunal decided that it had the power to accept only amicus curiae submissions, and rejected all other requests made by the petitioners.42

United Parcel Service of America Inc. v. Canada 43
The united Parcel service (uPs) is a us-based courier company incorporated under the laws of the state of Delaware.uPs initiated arbitration proceedings against Canada for unfair competitive practices.The claimants alleged that Canada Post had acquired a monopoly in the parcel and courier services sector throughout Canada, and that the government had failed to ensure free and fair competitive markets, thereby breaching its obligations set down in naFTa, such as the principle of national treatment stipulated 36 Paras.31 and 53 of the methanex amicus order; also see the discussion in ortino 2009, at 311. in articles 1102 and 1202, fair and equitable treatment, full protection and security requirements referred to in article 1105, and the monopolies and state enterprises provisions mentioned under article 1502(3)(a) and (d), and article 1503. 44ubsequently, the tribunal received amicus briefs from the Canadian union of Postal Workers, a Canada-based trade union, and the Council of Canada.The petitioners requested the tribunal add them as a standing party, and if that option was not available, to grant them permission to participate in the arbitral proceedings as amicus curiae. 45The petitioners raised two important issues before the tribunal: firstly, whether the petitioners can be added to the proceedings as parties; secondly, whether the tribunal can accept amicus briefs under the unCiTral rules.To justify their locus standi, the petitioners argued that they had a direct public interest in the subject matter, and also that they had pursued their legal arguments under article 15(1) of the unCiTral arbitration rules. 46The disputing parties contended that the tribunal should not agree with the request of the petitioners to allow them to stand as a third party. 47The parties, however, later agreed that the tribunal has the discretion to accept amicus briefs, subject to the limitations of the tribunal. 48he tribunal firstly emphasised its power to add parties to the arbitration taking place, and it clearly stated that "the arbitration might be different from the private, contract-based, narrowly focused norm, neither naFTa nor other relevant provisions provided the basis to accept the petitioners as standing parties." 49 Therefore, it rejected the petitioner's request to stand as a third party to the dispute. 50The tribunal secondly analysed the discretionary power of the tribunal to accept amicus curiae submissions.While doing so, the tribunal found that it had indeed the discretion to accept amicus curiae briefs which came within the ambit of article 15(1) of the unCiTral arbitration rules. 51access to the public hearing and documents can be granted only with the consent of the parties, and there was no such agreement that arose in this case.Therefore, the tribunal refused to grant all other requests made by the petitioners.Id. it is worth mentioning here that the usa also argued the same view as the disputants that the tribunal should not authorise granting the petitioners the status of parties under Chapter eleven of naFTa, but they could accept amicus curiae submissions under the unCiTral arbitration rules. in contrast, mexico had the different opinion that the petitioners should neither be granted the status of parties nor could amicus briefs be accepted from them.

Analysis
Both the Methanex tribunal and the UPS tribunal held that they had no power to add third parties to the arbitration proceedings.however, they acknowledged the importance of public concern and supported the participation of third parties as amicus curiae.The Methanex tribunal firmly upheld the need for transparency in Chapter eleven arbitration proceedings.it is, however, important to note that both of the tribunals failed to address how their powers were to be exercised while dealing with amicus curiae submissions.Following the Methanex and UPS awards, the FTC issued a clarification statement in 2003 which facilitated the participation of nondisputing parties in naFTa arbitrations. 53

Transparency Provisions in the ICSID Framework
The main objective of the iCsiD Convention is to promote international cooperation for economic development and to establish a better arbitral forum to settle disputes arising in connection with foreign investment.The Convention also laid down detailed procedures, rules and institutional support to conduct arbitral proceedings. 54The iCsiD arbitration rules are regularly used as a procedural tool in most of the investor-state arbitral proceedings.however, the practice of the iCsiD tribunals on amicus submissions has developed in a direction similar to that of the naFTa tribunals.Therefore, it is important to discuss the evolution and development of arbitral jurisprudence on transparency and public participation in arbitration proceedings administered under the iCsiD Convention and iCsiD additional Facility rules. in this regard, the following subsections discuss the relevant iCsiD provisions governing transparency, and examine the iCsiD tribunal's approach on transparency, with the help of celebrated cases.

Rules on Access to Documents
The iCsiD Centre publishes the award only with the consent of the parties, as required under article 48(5) of the Convention. 55The text of the award is available on the iCsiD website and it can also be published in the ICSID Review -Foreign Investment Law Journal provided that the parties to the dispute have consented. 56in any case, the Centre makes available the excerpts of the legal reasoning of the tribunal in its publications.it is also suggested that if one party refuses the publication of the award, the other party may submit the award for publication in other international legal sources, such as international legal materials, iCsiD reports or Journal du Droit International. 57The Centre has to treat all other decisions of the tribunal, including preliminary decisions, procedural orders, or recommendations of provisional measures, in the same manner as if they were final awards. 58

Amendment to the ICSID Arbitration Rules, 2006
The iCsiD secretariat published a discussion paper in 2004 that called for greater transparency in the iCsiD arbitral system. 59The discussion paper suggested that member states amend the iCsiD arbitration rules, which would ameliorate the active participation of non-disputing parties in the iCsiD arbitral system.Based on the recommendations of the iCsiD secretariat, rules 32(2), 37(2) and 48(4) of the iCsiD arbitration rules were amended in 2006. 60irstly, paragraph 2 of rule 32 was amended with respect to amicus curiae submissions; the mandatory requirement of consent was removed, and the amended rule provides that unless either party objects, the Tribunal, after consultation with the secretary-general, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements.The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information. 61condly, paragraph 2 of rule 37 was amended by adding the title submissions of non-Disputing Parties. 62 after consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute to file a written submission with the Tribunal regarding a matter within the scope of the dispute. 63e tribunal shall consider three requirements to determine whether to accept or reject the submissions from non-disputing parties, which was adopted in the Aguas Argentinas case: 64 (a) the submissions would assist the tribunal in the determination of a factual or legal issue, and it would also bring a new perspective or insight which should be different from that of the disputing parties; (b) the subject matter of submissions should fall within the scope of the dispute; (c) the non-disputing parties should have a significant interest in the proceeding.
Thirdly, rule 48(4) was amended to require the prompt publication of excerpts of the legal reasoning of the tribunal.Together, these changes heralded the transparency in the iCsiD process.

The ICSID's Approach on Transparency
it is interesting to note that the iCsiD was quite reserved in its approach on transparency, even after the amendment.also, there have been several instances after the amendment where non-disputing parties have submitted their briefs, and only a few of them have resulted in awards.Thus it is necessary to discuss the most seminal cases in this regard.

Aguas Del Tunari v. Republic of Bolivia 65
at the request of the World Bank, Bolivia had decided to privatise the water services in Cochabamba, its third largest city.owing to severe corruption and several other issues, the Bolivian government could no longer afford to make the necessary improvements to supply quality water to the general public. 66as a result, a concession agreement was finalised between the Bolivian government and aguas del Tunari ("adT"), a Bolivian company, on 2 september 1999 for a period of forty years.according to the agreement, adT had to supply a certain volume of good quality water to Cochabamba city and in exchange would receive a 16 per cent return on its investment.The returns would  subsequently be increased each year depending on the u.s.Consumer Price index.it was later discovered that the majority of the shareholders in adT were associated with Bechtel, a u.s.-based construction company.The terms of the contract had not been disclosed to the public. 67he lack of transparency in the agreement led to widespread protests in all parts of Cochabamba city.after five months of continuous agitation, Bechtel left Bolivia and the government rescinded the contract. 68The aggrieved party, aguas del Tunari requested the iCsiD Centre to proceed with arbitration with Bolivia for breach of contract.The claimant sought $50 million to recover losses and damages for the loss of profits. 69The tribunal was constituted in July 2002, and it finally accepted jurisdiction in pursuance of Bolivia and netherlands BiT. 70in august 2002, the tribunal received requests from four ngos 71 to participate in the arbitral proceedings as amicus curiae.on behalf of these ngos, earth Justice filed a petition before the tribunal to grant them standing as parties to the dispute, and if this were denied, to allow them to participate in the arbitral proceedings as amicus curiae. 72The petitioners also sought to attend the hearings, make an oral presentation during the hearings, and have access to all documents, which included written submissions, claims and the defences of the parties. 73The petitioners argued that each of them had a direct interest in the subject matter of the dispute. 74The petitioners also contended that their involvement in the proceedings would enhance the level of transparency. 75he tribunal rejected the petitioners' requests in their entirety, for three reasons.Firstly, the claims were made "beyond the power or the authority of the tribunal to grant, " 76   the interplay between the two treaties involved (iCsiD and BiT) and the consensual nature of arbitration places the control of the issues [sought to be raised] with the parties, not the Tribunal. 77condly, there was no consent from the parties to grant amicus curiae status to the petitioners.Therefore, the tribunal decided that petitioners' requests cannot be granted 78 and stated that at this stage there was no need to seek any assistance from the petitioners. 79The tribunal relied on the provisions of the treaties, observing that there is no less our duty to follow the structure and requirements of the instruments that control this case. 80is case gained significant importance on transparency requirements in investment arbitration, which was reflected in the Suez-Vivendi and Suez-InterAguas cases.Argentinas et al. v. Argentine Republic ("Suez-Vivendi") 81 subsequent to the privatisation of public water service to the claimant, certain restrictive measures were brought about due to the severe economic and financial crisis faced by argentina. 82Confrontations between the parties led to an arbitration claim instituted under BiTs signed by argentina with France, spain and the uK.The arbitration claims were based on the concessions given to spanish, French and British shareholders to operate water and sewage facilities in Buenos aires. in this regard, five ngos 83 submitted amicus curiae petitions before the tribunal in order to protect the interests of consumers and the human rights of citizens.Their requests included permission to submit amicus briefs, access the court hearings, present their legal arguments and access case materials.initially, the tribunal had to address whether amicus requests were in pursuance of rule 32(2) of the iCsiD arbitration rules. 85it is interesting to note that while the respondent approved the petition, the claimant rejected it in its entirety. 86The tribunal found it difficult to assess its power under article 44 of the iCsiD Convention, as there were no explicit provisions either in the iCsiD Convention or in the iCsiD arbitration rules at that time on amicus curiae briefs.The tribunal further observed that the decision on acceptance of amicus curiae submissions depends on the justification of a three-criteria approach:

Aguas
i) The appropriateness of the subject matter of the case; ii) The suitability of a non-party to act as amicus curiae in the case, and iii) The procedure in which the submission has been made (to protect the substantive and procedural rights of the disputing parties). 87ith respect to the first criteria, the public interest in the case would justify the acceptance of amicus submissions from the petitioners. 88The tribunal further observed that amicus submissions would increase the transparency and legitimacy of the international arbitral process when they involve states and matters of public interest. 89The tribunal was also satisfied with the second criteria and found that the petitioners do possess "the expertise, experience and independence to be of assistance in the case." 90 similarly, the tribunal noted in respect of the third criteria that the acceptance of amicus submissions, in this case, is part of the "procedural question [and] does not affect the substantive rights of the parties." 91Thus, the tribunal finally accepted the amicus curiae submissions and confirmed that the dispute raised public interest concern. 92however, the tribunal allowed the petitioners to attend the court hearings, make oral arguments and have access to documents only if the parties reached the required consensus under rule 32(2) of the iCsiD arbitration rules.since no such agreement was made, the tribunal rejected all other requests of the petitioners.Provinciales et al. v. Argentine Republic ("Suez-InterAguas")  94 The background of the case is similar to that of the Suez-Vivendi case. it is interesting to note that the tribunal was comprised of the same arbitrators appointed for the Suez-Vivendi case. 95During the proceedings, three individuals along with a mexico-based ngo 96 requested the tribunal to accept and grant them amicus curiae status.The tribunal invoked the three-criteria approach adopted in the Suez-Vivendi case. in this case, the dispute was related to the distribution of water and sewerage systems in a metropolitan city and generally considered more appropriate for admitting amicus briefs. 97in order to assess the suitability of the petitioners, the tribunal critically examined their expertise, their interests and their independence in this case. 98after careful examination, the tribunal concluded that the petitioners had failed to provide sufficient information on how they met the qualities required of amicus curiae.accordingly, the tribunal refused to grant permission to the petitioners to make amicus submissions. 99he iCsiD arbitration rules did not expressly address the question on the acceptance of amicus curiae submissions in arbitral proceedings until 2006.Aguas Argentinas was the first iCsiD arbitration to accept amicus curiae briefs, which eventually led to an amendment of the iCsiD arbitration rules in 2006.The revised rules expressly authorise the tribunal to grant access to amicus briefs.

Transparency Provisions of the UNCITRAL Arbitration Rules
The united nations Commission on international Trade law (unCiTral) arbitration rules, 1976 provide a detailed and comprehensive framework within which to conduct arbitration proceedings that is widely used in ad hoc arbitrations, including in naFTa Chapter eleven arbitrations.The 1976 rules were revised in 2010 100 in order to reflect modern arbitration practices and to "enhance the efficiency of 94 Suez, Sociedad General de Aguas de Barcelona S.A., and  The unCiTral arbitration rules (2010), 49 i.l.m. 1640.arbitration." it is important to note that the Commission has initiated several measures to promote transparency in investor-state dispute settlement, such as the adoption of the unCiTral rules on Transparency, 2013 101 and the mauritius Convention in 2014, 102 the latter being to ensure the effective application of the 2013 rules.This section elaborates the transparency provisions enshrined in these rules.

The UNCITRAL Arbitration Rules, 1976 and Amended Rules, 2010
The 1976 rules, in their original form, employ the most restrictive approach on aspects of transparency, and under the rules transparency is said to be an exception rather than a rule. 103For instance, article 25(4) provides that "hearings [are] to be held in camera unless the parties agree otherwise." similarly, article 32(5) states that "the award can be made public only with the consent of the parties." it is interesting to note that the 1976 rules previously did not contain any express provisions to grant access to documents and court hearings.it was a matter of discretion of the disputing parties, and the tribunals have rarely discussed this issue during proceedings. 104he united nations general assembly made a number of amendments to the unCiTral arbitration rules in 2010 in order to update their content in respect of transparency.The revised rules discussed only a few aspects of transparency.For instance, the tribunal had the power to restrict the opportunity to participate in open hearings unless both the disputing parties consented to it. 105similarly, it was stipulated that no award could be published without the agreement of the parties. 106in matters of transparency and public participation, the unCiTral arbitration rules lagged behind other legal instruments such as naFTa and iCsiD arbitration rules until the adoption of the unCiTral rules on Transparency, 2013.

The UNCITRAL Rules on Transparency, 2013
The u.n.general assembly formally adopted the rules on Transparency on 10 December 2013, 107 and they came into force on 1 april 2014. 108  to enhance transparency by allowing the submission of amicus briefs and providing access to the information submitted to the tribunal. 109The 2013 rules automatically apply to all the BiTs concluded between the member states on or after 1 april 2014, unless the parties have expressly "opted out" of the treaty. 110rticle 3 of the 2013 rules empowers the tribunal to publish three categories of documents, subject to certain exceptions mentioned in article 7. 111 article 3 provides that the documents described in the first category should be mandatorily and automatically disclosed, which includes notice of arbitration, response to the notice of statement of claim, statement of defence, written submissions by the disputing parties, transcripts of hearings, orders, decisions and arbitral awards.112 The documents mentioned in the second category may not be automatically disclosed, but upon the request of any person to the arbitral tribunal, they may be disclosed.This category includes witness statements and expert reports.113 on the other hand, any other documents that do not fall under the first or second categories are classified as the third category, which may be ordered to be disclosed at the discretion of the tribunal after consultation with the parties. 114article 6 of the 2013 rules adopted a default rule that all hearings shall be made public, and the arbitrators have the discretion to conduct hearings in camera only in certain exceptional cases provided in article 7, such as to protect confidential information or to maintain the integrity of the arbitral process.115 The arbitral tribunal shall make necessary logistical arrangements to facilitate public access to hearings.116 article 7(2) provides an exhaustive list of confidential or protected information which will give rise to the exception for transparency.This list includes confidential business information, protected information under the treaty, protected information under      the law of the respondent state, and any other protected information determined by the tribunal under any law which would impede law enforcement.117

The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, 2014 (the Mauritius Convention on Transparency)
The Convention was adopted by the u.n.general assembly on 10 December 2014, and it entered into force on 18 october 2017.The Convention together with the 2013 rules on Transparency contributes to a fair and efficient settlement of investment disputes, to increased transparency and to promoting good governance.The Convention also supplements the existing international investment law instruments with respect to transparency-related obligations.article 2 is key provision of the Convention. it determines when and how the rules on Transparency, 2013 shall apply to investor-state arbitration for the purposes of the Convention. 118Paragraph 1 of article 2 stipulates the general rule of bilateral or multilateral application.it states that the 2013 rules shall apply to any investor-state arbitration proceedings, whether or not administered under the unCiTral arbitration rules, in which the disputing parties have not made any reservations under article 3(1) of the Convention.Paragraph 2 of article 2 refers to the unilateral offer of application of the rules on Transparency only when the respondent state is a party to the Convention. 119

Adoption of Transparency Principles in the U.S. and Indian Model BITs
The changes brought about in the naFTa agreement influenced not only the iCsiD framework and the unCiTral arbitration rules, but also several other bilateral investment treaties (BiTs) as well.This paper attempts to explain this by reference to the BiTs of two countries, namely, the usa and india.The usa revised its model BiT in 2012, incorporating key reforms including an obligation for arbitral transparency enshrined in articles 11 and 29 and the provision for acceptance of amicus submissions in article 28.The new provisions incorporated general standards of transparency practices as adopted in the naFTa and iCsiD frameworks. 120n particular, article 29 requires the publication of all pleadings, memorials and briefs submitted by the disputing parties.it also requires public hearings, and the publication of the minutes or transcripts of the hearings of the tribunal, as well as all orders, awards and decisions of the tribunal.similarly, article 28(2) authorises the tribunal to accept oral or written submissions from non-disputing parties for the purpose of treaty interpretation, while article 28(3) empowers the tribunal to accept amicus curiae submissions from any person or entity.121 india has recently adopted a revised model BiT, as a reaction to the "White industries" award a series of investment disputes initiated against india.The revised model BiT has a number of key proposals to improve the conduct of arbitral tribunals, including the obligations of transparency.122 article 22 authorises the defending party to make "certain documents" publicly available, subject to "redaction of confidential information." These documents include notice of the dispute, notice of arbitration, pleadings, written submissions on jurisdiction, and transcripts of hearings, decisions, orders and awards of the tribunal.123 The 2015 model BiT also expressly recognises oral and written submissions from a non-disputing party on matters of interpretation of the treaty.124

Conclusion and A Way Forward
after analysing the relevant provisions and celebrated cases, we found that naFTa Chapter eleven arbitrations have taken a leading role in the matters of transparency and the acceptance of amicus briefs.The reason for this could be its limited membership which may result in greater consensus among its member states.We also found that under the u.s. and indian model BiTs transparency is a requirement, not an option.it is also significant to note that these legal instruments equally respect the confidentiality principle, which is considered the hallmark of arbitration.Two seminal cases, Biwater Gauff 125 and Piero Foresti, 126  The central question of the Biwater Gauff dispute arose on second Procedural order and the minutes of the first session meeting because the respondent published both the documents on the internet without the consent of the claimant. 127The claimant had asked the tribunal for provisional confidentiality measures.after careful examination of all the documents produced during the proceedings, the tribunal firmly held that the "concerns on procedural integrity no longer apply" after rendering the award, 128 but that it has to be handled restrictively when the proceedings are pending. 129it is pertinent to note that, on the one hand, the tribunal did not impose any restrictions on publication of documents such as decisions, orders and directions, because "the presumption should be in favour of allowing the publication." 130 on the other hand, the tribunal reached a restrictive conclusion on the publication of another set of documents, such as transcripts, minutes of the hearings, pleadings, written memorials and communication between the parties. 131t is significant to note that the iCsiD tribunal for the first time in Piero Foresti granted an amicus request to access key documents and observed that this would assist them to focus their submissions upon the issues arising in the case and to see what positions the parties have taken on those issues.132 however, the tribunal refused to permit the petitioners to participate in oral hearings.133   it is worthy to note here that the tribunal adopted a "novel procedure" in order to address these issues, i.e., "after all submissions, written and oral had been made, the Tribunal would invite the parties and the nDPs to offer brief comments on the fairness and effectiveness of the procedures adopted for nDP participation in this case.The Tribunal would then include a section in the award, recording views (both concordant and divergent) on the fairness and efficacy of nDP participation in this case and on any lessons learned from it"; also reference Piero Foresti award (2010).
it is noted that the Biwater Gauff tribunal for the first time addressed the issue on the publication of documents in a "detailed fashion." 135 The tribunal separately examined various kinds of documents, weighing the competing interests of transparency on one side and procedural integrity that protects confidentiality on the other.The balanced approach adopted by the Biwater Gauff tribunal has influenced subsequent cases as well. 136interestingly, the Piero Foresti tribunal went even further and adopted an "innovative step" to allow amicus curiae to access documents. 137ur discussion has confirmed the ubiquitous presence of the competing interests between confidentiality and transparency in investment arbitration, which originated in the WTo's Dispute settlement Body, was further elaborated by naFTa, followed by the iCsiD arbitration rules, and finally refined by the unCiTral rules on Transparency.Current arbitration practice has departed from its earlier position: it has reversed the obligations of confidentiality and shifted towards transparency and openness.however, the current arbitral system still remains unsatisfactory for the admission of amicus curiae; therefore, it is necessary to bring uniform or minimum standard requirements in all the legal instruments we discussed in these pages.arbitral tribunals should engage in the careful weighing of the quest for transparency and the need for confidentiality.such balancing will greatly benefit the international community as a whole.

4
loukas mistelis, Confidentiality and Third Party Participation: UPS v. Canada and Methanex Corp v. United States in International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law 173 (T.Weiler (ed.), london: Cameron may, 2005).5 Cindy g.Buys, The Tensions Between Confidentiality and Transparency in International Arbitration, 14(1-2) american review of international arbitration 121, 136 (2003); also see the discussion in Federico ortino, External Transparency of Investment Awards, online Proceedings, siel -Working Paper no. 49/08 (2008); for a discussion on concerns about the legitimacy of isDs, Florentino P. Feliciano, The Ordre Public Dimensions of Confidentiality and Transparency in International Arbitration: Examining Confidentiality in the Light of Governance Requirements in International Investment and Trade Arbitration, 87 Philippine law Journal 1
v. The United Mexican States, iCsiD Case no.arB(aF)/97/1, 30 august 2000; it is noted that this is the first Chapter eleven arbitration administered under the iCsiD additional Facility rules, 2000.25 Para.21 of the ethyl award; Jack J. Coe, Jr., Transparency in the Resolution of Investor-State Disputes -Adoption, Adaptation, and NAFTA Leadership, 54 university of Kansas law review 1339, 1367 (2006).26 Metalclad Corporation v.The United Mexican States, iCsiD Case no.arB(aF)/97/1 (iCsiD Procedural order 1), 27 october 1997, para.13; menaker 2010, at 132; monique Pongracic-speier, Confidentiality and the Public Interest Exception: Considerations for Mixed International Arbitration, 3(2) Journal of World investment 231, 245 (2002).27 Coe 2006, at 1371.28 Methanex Corporation v. United States of America, unCiTral, decision of the Tribunal on Petitions from Third Persons to intervene as amici curiae, 15 January 2001 (hereinafter methanex amicus order).
schreuer, The ICSID Convention: A Commentary 823 (Cambridge: Cambridge university Press, 2009).55 also see Table 1 of this paper for a comparison of the iCsiD framework and the unCiTral arbitration rules.56 art.53 of the iCsiD additional Facility rules; also see the discussion in Peter malanczuk, Confidentiality and Third-Party Participation in Arbitration Proceedings under Bilateral Investment Treaties, 1(2) Contemporary asia arbitration Journal 183, 192 (2008); see generally giuseppe Bianco, Article 2. Publication of Information at the Commencement of Arbitral Proceedings in Transparency in International Investment Arbitration: A Guide to the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration 80 (D. euler et al. (eds.),Cambridge: Cambridge university Press, 2015).
because 67 Krista nadakavukaren schefer, International Investment Law: Text, Cases and Materials 135 (Cheltenham: edward elgar, 2013); stephan Wilske & Willa obel, The "Corruption Objection" to Jurisdiction in Investment Arbitration: Does It Really Protect the Poor? in Poverty and the International Economic Legal System: Duties to the World's Poor 177 (K.nadakavukaren schefer (ed.), Cambridge: Cambridge university Press, 2013).68 rene uruena, No Citizens Here: Global Subjects and Participation in International Law 189 (leiden: martinus nijhoff, 2012).69 Pierre Thielborger, The Right(s) to Water: The Multi-Level Governance of a Unique Human Right 159 (Berlin: springer, 2014); schefer 2013, at 137. 70 also see the adT decision on objection 2005.71 The Coalition for the Defense of Water and life (Coordinadora), the Cochabamba Federation of irrigators' organizations, Friends of the earth-netherlands and semaPa sur.
of the adT decision on objection 2005.76 The adT decision on objection 2005, at the order-appendix iii; moshe hirsch, Investment Tribunals and Human Rights Treaties: A Sociological Perspective in Investment Law Within International Law: Integrationist Perspectives 85, 98 (F.Baetens (ed.), Cambridge: Cambridge university Press, 2013).
109 markus gehring & Dimitrij euler, Public Interest in Investment Arbitration in Transparency in International Investment Arbitration, supra note 56, at 27; see, e.g., the views expressed in gabriele ruscalla, Transparency in International Arbitration: Any (Concrete) Need to Codify the Standard?, 3(1) groningen Journal of international law 1, 19 (2015).
of the unCiTral rules on Transparency dealt with the scope of application.111 Bianco 2015, at 91.
of the unCiTral rules on Transparency; also see n. Jansen Calamita & ewa Zelazna, The Changing Landscape of Transparency in Investor-State Arbitration: The UNCITRAL Transparency Rules and Mauritius Convention in Austrian Yearbook on International Arbitration 271, 288 (C.Klausegger et al. (eds.),Wien: manz, 2016).

Table 1 :
Comparison of the relevant Provisions on Transparency, Confidentiality and Amicus Curiae Participation in naFTa, iCsiD and the unCiTral arbitral Framework (including recent amendments and revisions) Are Amici Curiae the Proper Response to the Public's Concerns on Transparency in Investment Arbitration?, 5 law and Practice of international Courts and Tribunals 257, 259 (2006).Transparency, Third Party Participation and Access to Documents in International Investment Arbitration, 23(2) arbitration international 327, 340 (2007).18 maupin 2013, at 155; also see the comparison of the iCsiD Framework and the naFTa/unCiTral Framework examined in Table 1 of this paper.Loewen Group, Inc. and Raymond L. Loewen v. United States of America, iCsiD Case no.arB(aF)/98/3, 16 alexis mourre, 17 Christina Knahr, 19 37united states -imposition of Countervailing Duties on Certain hot-rolled lead and Bismuth Carbon steel Products originating in the united Kingdom, WT/Ds138/aB/r, adopted on 7 June 2000.
The revised rule states that Transparency of Investment Awards -External and Internal Dimensions in Transparency in International Trade and Investment Dispute Settlement 119, 121 (J.nakagawa (ed.), london: routledge, 2013); also see schreuer 2009, at 82.
84 77 Communication Between the President of the Tribunal, David D. Caron, and the Director of earth Justice, J. martin, dated 29 January 2003; schreuer 2009, at 705; uruena 2012, at 191. see, e.g., the views expressed in nigel Blackaby & Caroline richard, Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration? in The Backlash Against Investment Arbitration: Perceptions and Reality 262 (m.Waibel (ed.), london: Kluwer law international, 2010).Aguas Argentinas S.A., Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v.The Argentine Republic, iCsiD Case no.arB/03/19, order in response to a Petition for Transparency and Participation as Amicus curiae, 19 may 2005 (hereinafter suez/vivendi amicus order).
InterAguas Servicios Integrales del Agua S.A. v.The Argentine Republic, iCsiD Case no.arB/03/17, order in response to a Petition for Participation as Amicus curiae, 17 march 2006 (hereinafter suez/interaguas amicus order).Fundacion para el Desarrollo sustentable (aC sustainable development Foundation) & Professor ricardo ignacio Beltramino, Dr ana maria herren, and Dr omar Dario heffes.Para.34 of the suez/interaguas amicus order; see the critique in Tomoko ishikawa, NGO Participation in Investment Treaty Arbitration, Connected Accountabilities in Environmental Justice & Global Citizenship 101, 107 (s.vemuri (ed.), oxford: inter-Disciplinary Press, 2009); see generally Chiara ragni, Role of Amicus Curiae in Investment Disputes: Striking a Balance Between Confidentiality and Broader Policy Considerations in Foreign Investment, International Law and Common Concerns 86, 90 (T.Treves et al. (eds.), new York: routledge, 2014).
96 99 These rules serve as a tool 101 The unCiTral rules on Transparency (2013), g.a.res.69/116, u.n.Doc.a/res/69/116.Resolving "Dynamic Interpretation": An Empirical Analysis of the UNCITRAL Rules on Transparency, 52(2) Columbia Journal of Transnational law 506, 516 (2014); also see Table 1 of this paper for a detailed comparison of the iCsiD framework and the unCiTral arbitration rules.