Investor-State Mediation and the Rise of Transparency in International Investment Law: Opportunity or Threat?
25 Pages Posted: 7 Aug 2018 Last revised: 28 Oct 2019
Date Written: March 18, 2018
Mounting pubic interest concerns associated with investor-state arbitration have influenced the drafting of contemporary investment treaties including the requirement for transparency. Investor-state mediation is nevertheless a pre-arbitration dispute resolution method that if successful, obviates the need for further investor-state arbitration, but in most cases is confidential. This article argues that reconciling the freedom of expression facilitated through confidential mediation communications and the public interest in transparency is a delicate balance to strike. Cases do exist of effective transparent public sector mediated outcomes at the domestic level with high rates of compliance. Yet, successfully mediated cases have also relied on a high degree of discretion given trade secrets, sensitive government protocols, and policy concerns. In light of the above factors, it is suggested that as the process becomes more fully established, familiarity gained, expertise developed and selected mediated cases become public through party consent, investor-state mediation move toward gradual openness in the long term.
Keywords: Investor-State Mediation; Arbitration; Transparency
JEL Classification: K10
Suggested Citation: Suggested Citation