Transparency and Representation of the Public Interest in Investment Treaty Arbitration
INTERNATIONAL INVESTMENT LAW AND COMPARATIVE PUBLIC LAW, Forthcoming
30 Pages Posted: 1 Jun 2010
Date Written: June 1, 2010
This article addresses one of the crucial tensions facing modern investment arbitration: that between confidentiality and privacy on the one hand and transparency and inclusiveness on the other. It begins by reviewing how investment arbitration frameworks have addressed this tension so far, noting the traditional focus on confidentiality and privacy and the more recent trend towards transparency and inclusiveness of proceedings before ICSID and/or NAFTA tribunals.
In line with the central methodological premise of the book, the chapter then moves on to compare domestic public law approaches to questions of transparency and public interest representation. Having reviewed U.S., English, French, German and Greek law, it shows that domestic public law seems to accept the principle of transparency and provides for various forms of indirect public interest representation (e.g. through amicus curiae briefs) but also different forms of public interest claims. While this approach cannot be directly transposed to the international legal order, it can clearly – and arguably should – guide the approach of investment lawyers. In any event, the experience of many domestic legal systems suggests that there is no reason to be overly afraid of transparency and some degree of public interest representation.
Keywords: International Law, International Investment Law, Amicus Curiae, Transparency, ICSID, Comparative Public Law, Global Administrative Law, Public Interest Claims, Class Action, Confidentiality
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