The Evolution of Transparency in Investment Treaty: Is Confidentiality Death? : An ICSID Perspective

Abstract: The International Centre for Settlement of Investment Disputes (ICSID), has seen an increased transparency in the past couple of decades. The participation of third parties in the proceedings and the disclosure of documents or information regarding the arbitrations are some of the most important and controversial issues regarding transparency nowadays. The purpose of this thesis is to analyze the evolution of transparency in ICSID, as well as specific cases that dealt with issues of third party participation and the disclosure of documents or information in investment treaty arbitration, and analyze the decisions taken by the tribunals. The evolution of transparency within the history of ICSID allows us to see the principal amendments made, and how transparency has been evolving in favor of investment treaty arbitration, providing more confidence, openness and legitimacy on this system of dispute resolution. Nevertheless, transparency is not a panacea. Excessive transparency might bring more challenges than benefits, depending on the circumstances on a case-by-case basis, therefore, it is necessary to consider the effects that transparency may produce in investment treaty arbitration, and find a right balance with elements such as confidentiality, the power of the tribunals and the will of the disputing parties in the arbitration, among others. This thesis proposed that even if there is always space for improvements, the evolution of transparency has reach a limit where further changes would be futile and prejudicial for the system of investment treaty arbitration. This would bring a series of challenges, such as, an extra burden to the disputing parties, a delay on the proceedings, and in certain cases leaving the result of the arbitration in hands of the public scrutiny, the media or turning the dispute in a political matter.