See No Evil? Procedural Transparency in International Investment Law and Dispute Settlement

Abstract

The aim of this thesis is to address the extent and particulars of the regulation of procedural transparency in treaty-based investor-state dispute settlement. I will investigate the development that has taken place in states’ approach to treaty design and in the relevant arbitral regimes with regard to the transparency of investor-state dispute settlement. To what extent are “transparency and accountability … beginning to outweigh privacy and confidentiality in importance” in investment arbitration? In order to answer this and related questions, it is essential to analyse decisions of arbitral tribunals pertaining to procedural transparency, as these provide interpretations of the procedural rules relevant to transparency, as well as illustrating the degree of interplay between treaties, applicable procedural rules and the powers of arbitral tribunals to determine issues of procedure, including issues pertaining to transparency and confidentiality. I will attempt to present a hopefully representative over-view of the extent and characteristics of transparency regulation in investment treaties, the approach of arbitral tribunals when exercising procedural discretion on the most central issues, as well as point to possible future developments with regard to treaty design and tribunal attitudes to transparency in arbitration proceedings.

Keywords: investment arbitration, arbitral tribunal, transparency