Resolving “Dynamic Interpretation”: An Empirical Analysis of the UNCITRAL Rules on Transparency

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The United Nations Commission on International Trade Law (UNCITRAL) recently adopted Rules on Transparency with the goal of ensuring greater transparency in investor-state dispute resolution.  However, the Rules on Transparency presumptively will not apply to any bilateral investment treaties (BITs) that were enacted prior to the Rules’ effective date, unless the parties to the relevant BIT agree otherwise.  In drawing up this line of demarcation, UNCITRAL has greatly limited the Rules’ effectiveness and impact-in the vast majority of future cases, the Rules will not apply.  UNCITRAL’s analysis has been overly focused on a theoretical analysis of dynamic interpretation and not focused enough on the empirical reality of the BITs to which the Rules on Transparency apply.  The Rules on Transparency could easily have been tailored to the language of the dispute resolution clauses of existing BITs. Given the importance of public disclosure as a matter of policy, the Working Group’s decision not to do so is perplexing.  This Note analyzes the flaws of the Rules on Transparency in their current form and highlights the benefits of alternative proposals.