See no evil? Procedural transparency in international investment law and dispute settlement
In his master thesis, PluriCourts research assistant Cristoffer Nyegaard Mollestad analyses the friction between transparency and confidentiality requirements in investment arbitration. Read the thesis (SSRN).
Underlying the debate on transparency in investment arbitration is the question of whether investment disputes, as disputes between private investors and sovereign states, are deserving of more transparent proceedings than what has been the practice in traditionally private commercial arbitration, on which the investment arbitration system is modelled.
Mollestad examines the extent and particulars of the regulation of procedural transparency in treaty-based investor-state dispute settlement. He investigates the development that has taken place in states’ approach to treaty design and in the relevant arbitral regimes with regard to the transparency of investor-state dispute settlement.
He concludes that "the final farewell to confidentiality in Investment arbitration will not be driven by individual tribunals deciding individual cases. The push will not come from within." Rather, transparency rules will more easily make their way into Investment regimes through treaty or Institutional reforms.