Transparency, Accountability, and Influence in the International Investment Law System

Abstract

Observers of the international investment law (IIL) system regularly complain about the system’s lack of transparency and accountability. Major reform efforts, both past and present, inevitably turn to “more transparency” as a solution to the system’s problems. But what does transparency mean, and why do we want more of it? In this article I draw upon an extensive interdisciplinary literature on transparency to argue that the IIL literature gets much about transparency wrong. I argue that transparency is primarily aimed at producing information that allows key system actors to exert influence over system outputs. And while transparency is often linked to accountability, I show that accountability, properly understood, is often lacking in the IIL system. I apply a system framework to highlight how increased transparency can have unexpected and perhaps undesirable effects on influence over system outputs. More transparency may, problematically, increase stress on the IIL system by diminishing the ability of states to influence system outputs.

Keywords: International Investment Law, Transparency, International Relations, Trade Law, Accountabilitty, Oversight, Treaties, Arbitration, Public Policy