TRANSPARENCY AND CONFIDENTIALITY REQUIREMENTS IN INVESTMENT TREATY ARBITRATION
https://doi.org/10.21684/2412-2343-2018-5-4-114-138
Abstract
he values of confidentiality 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 affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference 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 confidentiality have significantly increased in the recent past, and the difficulty 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, confidentiality 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 of celebrated cases falling within each category. The article further elaborates the transparency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based InvestorState Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.
About the Authors
Azhaham Perumal Perumal Saravanan
Indian Institute of Technology Kharagpur.
Russian Federation
Russian Federation
Azhaham Perumal Saravanan – PhD Candidate, rajiv gandhi school of intellectual Property law, indian institute of Technology Kharagpur.
Kharagpur, Paschim medinipur, West Bengal, 721302.
Subramanian Ramamurthy Subramanian
Indian Institute of Technology Kharagpur.
India
India
Subramanian Ramamurthy Subramanian (Kharagpur, India) – assistant Professor, rajiv gandhi school of intellectual Property law, indian institute of Technology Kharagpur.
Kharagpur, Paschim medinipur, West Bengal, 721302.
References
1. Bastin L. The Amicus Curiae in Investor-State Arbitration, 1(3) Cambridge Journal of international and Comparative Law 208 (2012).
2. Bianchi A. 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).
3. Buys C.G. The Tensions Between Confidentiality and Transparency in International Arbitration, 14(1-2) American Review of international Arbitration 121 (2003).
4. Delaney J. & Magraw D.B. Procedural Transparency in The Oxford Handbook of International Investment Law 756 (P. Muchlinski et al. (eds.), Oxford: Oxford University Press, 2008).
5. Dolzer R. & Schreuer C. Principles of International Investment Law (Oxford: Oxford University Press, 2008).
6. Ishikawa T. Third Party Participation in Investment Treaty Arbitration, 59(2) international & Comparative Law Quarterly 373 (2010).
7. Jansen Calamita N. & Zelazna E. The Changing Landscape of Transparency in Investor-State Arbitration: The UNCITRAL Transparency Rules and Mauritius Convention in Austrian Yearbook on International Arbitration 271 (C. Klausegger et al. (eds.), Wien: Manz, 2016).
8. Knahr C. & reinisch A. Transparency versus Confidentiality in International Investment Arbitration - The Biwater Gauff Compromise, 6(1) law and Practice of international Courts and Tribunals 97 (2007).
9. Knahr C. Transparency, Third Party Participation and Access to Documents in International Investment Arbitration, 23(2) arbitration international 327 (2007).
10. Malanczuk P. Confidentiality and Third-Party Participation in Arbitration Proceedings under Bilateral Investment Treaties, 1(2) Contemporary Asia arbitration Journal 183 (2008).
11. Mourre A. Are Amici Curiae the Proper Response to the Public's Concerns on Trans-parency in Investment Arbitration?, 5 law and Practice of international Courts and Tribunals 257 (2006).
12. Ortino F. Transparency of Investment Awards - External and Internal Dimensions in Transparency in International Trade and Investment Dispute Settlement 119 (J. Naka- gawa (ed.), London: routledge, 2013).
13. Pongracic-Speier M. Confidentiality and the Public Interest Exception: Considerations for Mixed International Arbitration, 3(2) Journal of World investment 231 (2002).
14. Ragni C. Role of Amicus Curiae in Investment Disputes: Striking a Balance Between Confidentiality and Broader Policy Considerations in Foreign Investment, International Law and Common Concerns 86 (T. Treves et al. (eds.), new York: routledge, 2014).
15. Saravanan A. & Subramanian S.R. The Participation of Amicus Curiae in Investment Treaty Arbitration, 5(4) Journal of Civil and legal sciences 1 (2016).
Review
For citations:
Saravanan A.P., Subramanian S.R. TRANSPARENCY AND CONFIDENTIALITY REQUIREMENTS IN INVESTMENT TREATY ARBITRATION. BRICS Law Journal. 2018;5(4):114-138. https://doi.org/10.21684/2412-2343-2018-5-4-114-138
Views: 2302
Email this article 