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).

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