Investment Treaty Arbitration and Transparency : Transparency, confidentiality and the public interest in international investment disputes

Abstract: Investment treaty arbitration has borrowed a number of elements from commercial arbitration, including confidentiality. The scope of confidentiality in investor-state arbitrations can make it hard for amicus curiaeto participate in the arbitral proceedings.    The rules regarding transparency in investor-state arbitration relates, among others, to access to information and documents, third-party participation and the publication of awards. Transparency in investor-state arbitrations is also related to changes in legislation that could affect the investor. Changes in legislation is a way of adapting to new circumstances as changes in government or an attempt to prevent health issues or fulfilling environmental goals in the interest of the public.   The possibility of amicus curiaeparticipation and submissions make it possible for the public to affect what information the tribunal have in cases where public interests are discussed. Tribunals have, when they have found that the public interest is not only general, decided to allow amicus curiaesubmissions even without the consent of the parties. They have allowed such submissions in cases where the amicus curiaecould enlighten the tribunal or provide additional information about the merits.     There is no binding case law in arbitration. Since the tribunal only have jurisdiction in the particular case, awards cannot be binding in other disputes. The lack of case law can lead to a lack of predictability for both investors and states. It has led to fewer changes in domestic regulation, the phenomenon is called the “chilling effect” and refers to states who make less changes (including changes in the interest of the public) in an attempt to avoid a violation of the FET standard.    Transparency, i.e. making the dispute public, including the party’s identities, documents and the award, can help providing predictability to investment-treaty arbitration. The outcome of the case is not binding as case law for future disputes but could provide both states and investors knowledge about how certain treaties and actions might be interpreted by a future tribunal.