The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits

Thomas Schultz and Federico Ortino (eds), Oxford Handbook of International Arbitration (Oxford University Press, March 2020, Forthcoming)

ANU College of Law Research Paper No. 19.27

26 Pages Posted: 18 Oct 2019 Last revised: 23 Oct 2019

See all articles by Esme Shirlow

Esme Shirlow

ANU College of Law

David D. Caron

King's College London – The Dickson Poon School of Law (deceased); University of California, Berkeley, School of Law (deceased)

Date Written: October 16, 2019

Abstract

This Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, whilst also considering their objectives and consequences. The analysis indicates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration. Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. An agenda that seeks to identify and enact effective reforms to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, then, it is vital that States, arbitral institutions, and other stakeholders confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives. The contours of the discussion in this Chapter hold importance for reform agendas in other fields of international arbitration. It highlights the importance of clarifying what is being proposed, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.

Keywords: international investment arbitration, procedural transparency, reform, investment law, international dispute settlement

Suggested Citation

Shirlow, Esme and Caron, David D., The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits (October 16, 2019). Thomas Schultz and Federico Ortino (eds), Oxford Handbook of International Arbitration (Oxford University Press, March 2020, Forthcoming); ANU College of Law Research Paper No. 19.27 . Available at SSRN: https://ssrn.com/abstract=3470946

Esme Shirlow (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

David D. Caron

King's College London – The Dickson Poon School of Law (deceased)

University of California, Berkeley, School of Law (deceased)

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