Transparency in ISDS: A Study Based on Multi-party Agreements

Abstract

The virtues of transparency and confidentiality in international judicial processes are often debated, including in relation to investor-State dispute settlement (ISDS). The extent of transparency in an ISDS proceeding may vary based on the applicable arbitration rules and the text of the international investment treaties under which the dispute arises. In this context, this article studies the practice of States reflected in select multiparty agreements. The sample of agreements considered, by virtue of the large number of participating countries, significance of trade and investment flows between participants, or both, may be considered representative of global trends or the lack thereof. The article also discusses how the transparency and confidentiality provisions in such agreements interact with the applicable arbitration rules and the net effect on transparency in ISDS. ISDS, transparency, UNCITRAL Arbitration Rules, public access to documents, open hearings, third parties, publication of orders, confidentiality.