Transparency, Accountability, and Influence in the International Investment Law System

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This article offers the first interdisciplinary critique of transparency in international investment law (“IIL”) that draws on transparency-skeptical and accountability scholarship in political science and public administration. Not only has the expansive IIL literature overlooked these disciplines, but much of it fails to define the core concept of transparency. Building on contributions from the fields of administrative law, international relations, and system theory in classic political science, we provide a novel functionalist account of transparency that traces a line from transparency to accountability to influence in the IIL system. We make three arguments. First, transparency involves access to data that must be interpreted by an enabled target audience. Second, transparency is not a good in itself but rather a means of advancing accountability, which in turn is designed to promote influence in the system; that is, transparency and accountability are both secondary rather than primary values. Third, transparency is best understood at a system level; a system framework highlights the multiplicity of actors making divergent demands for the creation or application of IIL rules and illuminates the distribution of influence and how that distribution may be shifted by systemic reforms. We apply the lessons from our conceptual discussion to explain the limited utility of recent transparency reforms in investor-state dispute settlement (“ISDS”) by key IIL institutions such as the United Nations Commission on International Trade Law (“UNCITRAL”), insofar as they rely on the public as the primary actor and agent of change in the IIL system. Beyond transparency-specific reforms, we also consider how our theory bears on broader ISDS reforms currently under review by UNCITRAL Working Group III, which has embarked on a historic mission to reform ISDS from the ground up.