UNCITRAL’s Rules on Transparency in Treaty-based Investor-State Arbitration (the Transparency Rules) present challenges to manage the costs of compliance while avoiding the consequences of non-compliance.

Transparency in investor-State dispute settlement (ISDS) is not a new concept. However, the reality is that outside the context of the North American and Central American Free Trade Agreements (respectively, NAFTA and CAFTA) (both of which contain provisions on transparency), the mechanisms implemented to promote transparency in ISDS have only recently begun to be tested in arbitral practice. The Transparency Rules, still in their infancy, have only rarely been applied and then only by the disputing parties’ agreement. Most recently, the Transparency Rules were adopted by party agreement (with some modification) in BSG Resources Ltd. v. Republic of Guinea. This case gives some indication as to the future of transparency in ISDS and how to manage the associated costs.