Transparency and Confidentiality Requirements in Investment Treaty Arbitration

• Author: Azhaham Perumal Perumal Saravanan - Subramanian Ramamurthy Subramanian
• Position: Indian Institute of Technology Kharagpur (Kharagpur, India)
• Pages: 114-138

BRICS LAW JOURNAL Volume V (2018) Issue 4

COMMENTS

TRANSPARENCY AND CONFIDENTIALITY REQUIREMENTS

IN INVESTMENT TREATY ARBITRATION

AZHAHAM PERUMAL SARAVANAN,

Indian Institute of Technology Kharagpur

(Kharagpur, India)

SUBRAMANIAN RAMAMURTHY SUBRAMANIAN,

Indian Institute of Technology Kharagpur

(Kharagpur, India)

DOI: 10.21684/2412-2343-2018-5-4-114-138

The values of condentiality and transparency are often invoked in the theory and practice

of investment treaty arbitration. Transparency is considered to be one of the key aspects

of good governance and corporate social responsibility. It includes the obligation of the

host state to publish all the legal rules, regulations and other statutory requirements

aecting investors. Condentiality is considered the hallmark and unique feature of

arbitration as a dispute resolution mechanism. However, it is dicult to balance these

two values, in principle due to the dierence in the various investment arbitration cases,

as well as the high degree of public interest involved in such proceedings. The competing

interests between transparency and condentiality have signicantly increased in the

recent past, and the diculty lies in drawing a medial line between them. There is also

debate as to what extent non-disputing parties are allowed to participate in investment

arbitration, and what the essential requirements are to admit them.

It is in this connection that this article makes an in- depth analysis of how investment

arbitration frameworks have approached the questions of transparency, condentiality

and amicus curiae participation over the years. The article assesses and explores similar

issues within the International Convention on the settlement of investment disputes

between States and nationals of other States, 1965 (ICSID), the North American Free

Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International

Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis

AZHAHAM PERUMAL SARAVANAN, SUBRAMANIAN RAMAMURTHY SUBRAMANIAN 115

of celebrated cases falling within each category. The article further elaborates the trans-

parency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the

recently adopted Indian Model BIT, 2015. The study is very signicant because the United

Nations has recently adopted the Convention on Transparency in Treaty-based Investor-

State Arbitration, 2014 (Mauritius Convention), which ensures transparency and public

accessibility to investor-state arbitration.

Keywords: bilateral investment treaty; condentiality; ICSID Convention; investment

treaty arbitration; NAFTA; transparency; UNCITRAL Arbitration Rules.

Recommended citation: Azhaham Perumal Saravanan & Subramanian Ramamurthy

Subramanian, Transparency and Condentiality Requirements in Investment Treaty

Arbitration, 5(4) BRICS Law Journal 114–138 (2018).

Introduction

Transparency is considered to be one of the key aspects of good governance and

corporate social responsibility. It requires the government to publish all documents

and avoid secrecy in its administration. In a general sense, the term “transparency”

is not immediately associated with international law. However, it has lately become

a foundation of international law due to the active participation of public and non-

governmental organisations (NGOs) in globa l governance.1 Since the 2000s, increasing

recognition has been given to transparency in international dispute settlement

processes. This has been the case with amicus curiae briefs. Transparency is an evolving

concept and has become increasingly evident in the practice of investor-state dispute

settlement (ISDS). The term “transparency” in international investment law connotes

that host states have an obligation to publish all of the legal rules, regulations and

other statutory requirements aecting investors.2 It is pertinent to note that in relation

to amicus curiae briefs, World Trade Organization (WTO) decisions have undeniably

inuenced investment treaty arbitral awards.3

1 Andrea Bianchi, On Power and Illusion: The Concept of Transparency in International Law in Transparency

in International Law 1 (A. Bianchi & A. Peters (eds.), Cambridge: Cambridge University Press, 2013).

2 Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 133 (Oxford: Oxford

University Press, 2008); see the discussion in Joachim Delaney & Daniel B. Magraw, Procedural

Transparency in The Oxford Handbook of International Investment Law 756 (P. Muchlinski et al. (eds.),

Oxford: Oxford University Press, 2008); also see Christina Knahr & August Reinisch, Transparency versus

Condentiality in International Investment Arbitration – The Biwater Gau Compromise, 6(1) Law and

Practice of International Courts and Tribunals 97, 110 (2007); see The Energy Charter Treaty, 2080

U.N.T.S. 95, Art. 20 (entered into force 16 April 1998); also see Maupin’s adaptations of “transparency”

denition in Julie A. Maupin, Transparency in International Investment Law: The Good, the Bad, and the

Murky in Transparency in International Law, supra note 1, at 149.

3 Laurence Boisson de Chazournes & Rukia Baruti, Transparency in Investor-State Arbitration: An Incremental

Approach, 2(1) Bahrain Chamber for Dispute Resolution International Arbitration Review 59, 69 (2015).