Substantive Transparency Requirements in International Investment Law

Abstract

Few concepts in public governance evoke a more positive sentiment than transparency. Whether ultimately grounded in expediency or morality, transparency has emerged out of its municipal origins and been received at the international plane. This article examines the current state of evolution of the idea of government transparency in international investment law for the purpose of seeking to understand its underlying drivers and, on that basis, to interpret the practices associated with it. The article sets forth two arguments. First, transparency is old wine in a new bottle; the substance of the norms that the language of transparency is associated with is well known and long predates the emergence of transparency as a concept. Second, preliminary evidence from treaty and arbitral practice support the proposition that substantive transparency serves to promote normative guidance.