Environmental Engineering Reference
In-Depth Information
Procedural issues
Much criticism has also been leveled at the procedures currently in place to arbitrate
investor claims. These concerns include the restrictiveness of current rules with respect to
public participation and access to claim documentation, as well as broader critiques
aimed at the legitimacy and accountability of the arbitral process. In this context, the
ensuing debate has pitted the prevailing norms of the international arbitral regime against
an emerging public expectation 'that challenges to regulation by private parties will be
adjudicated in a transparent, public and open forum' (Newcombe, 2007, p. 43).
Historically, international commercial arbitration was conducted in private under strict
conditions of con
dentiality as 'investment arbitration was considered to be a private
commercial matter between two disputants' (Cosbey, 2005, p. 152). As critics point out,
however, the implications of investor claims frequently transcend the interests of the
immediate parties, raising complex issues of science and democratic values that commer-
cial arbitral fora are ill equipped to adjudicate (Van Harten, 2007, pp. 150-51).
Securing even basic information about past or pending investor claims remains di
fi
cult.
There is no general requirement, for instance, that arbitral documents or decisions be
made available to the public. Thus, while ICSID lists pending arbitrations on its website,
as yet UNCITRAL does not. And while NAFTA parties maintain a public register of
notices of intent to arbitrate, this information is often incomplete (Cosbey, 2005, p. 153).
An important step to enhance both transparency and legitimacy was taken by the
NAFTA trade ministers in 2003 in their release of suggested guidelines for considering
petitions for
amicus curiae
status in hearings. Both the USA and Canada have also indi-
cated their support for the principle of public hearings in all future Chapter 11 arbitra-
tions (Mann, 2005, pp. 11-13). However, these initiatives are not legally binding and
their implementation may well depend on the joint consent of the government involved
and the private investor. In the same vein, the new US and Canadian model BITs now
authorize tribunals to accept and consider submissions by non-disputing parties, and
amendments in 2006 to the ICSID Rules expressly permit a tribunal to accept written
submissions from such parties 'regarding a matter within the scope of the dispute'
(Newcombe, 2007, p. 49).
Concerns have also been raised about the coherence of emerging IIA jurisprudence. In
the NAFTA setting, for example, commentators have observed that 'a sense of consis-
tency and permanence' has thus far been lacking (Soloway, 2003, p. 23). The lack of
stare
decisis
or appropriate appellate oversight has undermined both the sense of accountabil-
ity and predictability of the process and has led 'to jurisdiction shopping and a sense of
uneven application of the rules among di
erent parties to an arbitration' (ibid.).
In addition, serious questions have been raised about arbitral competence and the arbi-
tral appointment process (Van Harten, 2007, p. 121). Critics contend that arbitrators, typ-
ically drawn from the ranks of the international trade law community, tend to be
predisposed to apply private law rules or rights-based norms imported from private com-
mercial arbitration law and sometimes to labor under misconceptions of human rights
law to render judgments about what Van Harten argues are 'core matters of public law'
(Van Harten, 2007, pp. 150-51). This perception of systemic bias in favor of investor
rights is further fueled by concerns about the arbitral appointment process, which
arguably lacks many of the neutrality safeguards normally associated with appointments
made in the judicial realm (ibid., pp. 174-5).
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