Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.