Three Manifestations of Transparency in International Investment Law: A Story of Sources, Stakeholders and Structures
28 Pages Posted: 16 Jan 2020
Date Written: January 14, 2020
The notion of transparency manifests in three contexts in international investment law. It manifests first at the point of norm creation, regulating the public availability of information about the norms included in investment treaties and the capacity for interested stakeholders to view or participate in the creation of those norms. Transparency secondly features in the content of substantive investment obligations. In this incarnation, transparency norms empower foreign investors to bring proceedings against States for failures of transparency in State dealings with investors. Finally, transparency features as a procedural requirement for investment arbitration proceedings. Here, transparency refers to the extent to which individual dispute settlement proceedings are publicly accessible or documents produced in those proceedings made publicly available. The precise features of transparency in each of these contexts differ, as do the stakeholders which stand to benefit from transparency. Studying these three distinct manifestations of transparency offers insights into the development of international investment law and the sources, stakeholders and structures which shape it. This article considers each manifestation of transparency in turn (Section I), before considering what they reveal about the nature and structure of international investment law and arbitration (Section II).
Keywords: transparency, investment treaty, investor-State arbitration, international law, dispute settlement
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