In addition to the provisions of nafta, disputing parties are also bound by the arbitration rules that the investor selects. 64 When bringing a claim against a

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NAFTA Party, an investor must choose between the UNCITRAL Rules, the ICSID Convention and Rules, or the Additional Facility Rules. Pursuant to Article 1120, the UNCITRAL Rules may be used in any circumstance, the ICSID Additional Facility Rules may be used when only one of the disputing parties is party to the ICSID Convention, and the ICSID Convention may be used if both disputing parties are party to the Convention. In practice, only the UNCITRAL Rules and the Additional Facility Rules have been used because Mexico is not a party to the ICSID Convention, and whilst Canada signed the ICSID Convention in December 2006, it has not yet ratified it. 65

Primarily because of concerns raised by civil society, the NAFTA Parties have become aware of the need for transparency and public participation in Chapter 11 disputes. The following discussion provides an overview of efforts by the NAFTA Parties to increase transparency and public participation through standardized registration of claims, access to documents, access to proceedings, ability to provide input to the tribunal, and access to awards.

(i) Standardized Registration of Claims

There is no requirement that the initiation, including the filing, of a Chapter 11 claim be made public immediately. Neither the NAFTA text nor any arbitration rules address the publication of notices of intent. In practice, however, the public is now typically informed of the existence of NAFTA disputes soon after a notice of arbitration has been filed. Increasingly, notices of arbitration are published on the websites of NAFTA countries. 66

Pursuant to Article 1119, an investor must deliver notice of intent to submit a claim (notice of intent) to the relevant government 90 days before submitting the actual claim to arbitration (notice of arbitration). So far, no arbitrations or domestic judicial cases have addressed issues of transparency or public participation during registration of a Chapter 11 claim, although the Free Trade Commission issued a statement on 7 October 2003 recommending the use of a standard form for the notice of intent. 67 Although the standard form aims to clarify the basis of claims, 68 it also facilitates greater transparency for the public. The Free Trade Commission recommends that the ‘notice of intent clearly identify the investor and the investment

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and specify the precise nature of the claims asserted’ 69 and that translations be submitted in all three official NAFTA languages. 70 Both of these recommendations improve the public's ability to understand the basis of Chapter 11 claims.

(ii) Access to Proceedings

NAFTA text is silent on whether briefs and other submissions to a tribunal should be publicly disclosed. However, since the need for transparency has become an issue, the Free Trade Commission and disputing parties have taken measures to open the process to public scrutiny through access to written documents and public hearings.

Access to Written Documents