TRANSPARENCY: “ARE WE READY TO LIFT THE VEIL OF CONFIDENTIALITY OF ARBITRATION?”

Almost all investment treaties nowadays provide the investors with the procedural right to bring a claim against the government of the host state through an effective dispute resolution mechanism, usually known as investment arbitration. For a long time, the information on the investor-state dispute is often kept confidential due to several sensitive reasons. Accordingly, under the arbitration rules governing the arbitral proceedings, including the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), the details of the disputes can remain hidden from public view from their commencement through conclusion.

However, with the development of the World Trade Organization (WTO), along with the birth of a number of free trade areas, which more and more improvement in the level of regional economic integration, in order to offer a friendly environment for investment, the host country must gain a higher degree of transparency and the investment arbitration shall not fall out of such tendency. Recognizing the public interest in investor-state arbitration, the UNCITRAL Rules on Transparency in Treaty based Investor-State Arbitration (“UNCITRAL Transparency Rules”) is introduced in 2014 providing an international legal standard to ensure the transparency in investor state arbitration. Furthermore, to enhance the application of the UNCITRAL Transparency Rules, on 17th March 2015, the United Nation Convention on Transparency in Treaty-Based Investor-State Arbitration was opened for signature (“Transparency Convention”). These mechanisms have created sound framework to facilitate the transparency in investment arbitration in particular and the ISDS in general.

Being a dynamic factor in the region, Vietnam also has some positive movement to catch up with that current trend. Nevertheless, for a long time, Vietnam has always been familiar with the confidentiality in the investment arbitration, in which it is the Respondent. A question posed to not only the government but also the practitioners and scholars is whether Vietnam is really ready to pierce the veil of confidentiality and get along with the world of transparency in arbitration. This article shall focus on analyzing the development of transparency in the dispute resolution mechanism in Vietnam and the implication of the UNCITRAL Transparency Rules and Transparency Convention to Vietnam in order to find the answer for such question.

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