Non-Disputing Parties’ Rights in Investor-State Dispute Settlement: The Application of the Monetary Gold Principle

Commercial arbitration is, by design, a private forum for the settlement of legal disputes between private parties. Confidentiality has been one of its overarching features and fundamental principles. Yet, the rise of the state as a commercial actor in the last century has led to an evolution in the arbitration process to accommodate and resolve disputes at the intersection between private and public law. Today, while investor-state dispute settlement (“ISDS”) is recognized as a system distinct from commercial arbitration, confidentiality still plays a role in the ISDS process. As a result, non-disputing parties (“NDPs”) affected by the outcome of ISDS are generally restricted from participating meaningfully in the process.