Transparency In International Investment Arbitration

The arbitration procedure was originally confidential,but as the frequency of application of investment arbitration increased,public interest in investment arbitration has became prominent.The understanding and expectation of public participation concept and the recognition of commonweal of investment arbitration were deepened simultaneously,provoking people's discussion on the transparency of investment arbitration.The transparency issues in investment arbitration not only include the publicity of hearings,documents and other information but also include the participation of amicus curiae.This article is divided into six chapters,except the first chapter introduction and the seventh chapter conclusion and suggestions,the main part of the article is summarized as follows.The second chapter analyzes the precondition and value for introducing transparency in international investment arbitration.In investment arbitration cases where public interests are at stake,the principle of confidentiality of arbitration has been greatly eroded,thus creating a precondition for the introduction of the transparency regime.In addition,introducing transparency regime into investment arbitration serves the purpose of due process(or procedural justice)and is essential to enhance the legitimacy of investment arbitration,reflect the requirement of judicial democracy and promote the consistency of substantive investment law.The third and fourth chapters focus on the research of the open system of investment arbitration.The third chapter points out that there are problems of arbitrariness,imbalance and lack of transparency in investment arbitration.It is rare to have pulic hearings among all investment arbitration cases,a public hearing is always related to the promotion of the United States and Canada.The current problems stems from the absence of a systemtic disclosure regime and the difference between developed and developing countries.There are many paths to promoting "openness" in investment arbitration,first,the model of “Transparency Rules plus Transparency Convention”,Transparency Rules provide specific rules on information disclosure and public hearing while the Transparency Convention expands the scope of application of Transparency Rules.Second,the inclusion of public clauses in investment treaties was the most direct way to guarantee the disclosure of investment arbitration,an initiative that could only be achieved by contracting states.Third,the contribution of the arbitral institution to the disclosure of investment arbitration was reflected in the arbitration rules embracing information disclosure.Fourth,the unilateral disclosure of the parties plays a certain complementary role in the disclosure of investment arbitration.In the implementation of investment arbitration,the host country should bear the responsibility of disclosure before the tribunal is established.After the arbitral tribunal is assembled,it should be the arbitral tribunal who holds all the documents and ultimately determines the scope of the confidential information to publish.It is also for the benefit of time efficiency.In terms of the scope of disclosure of investment arbitration,different types of information should be distinguished and different open standards should be adopted.it is necessary to meet the requirements of time efficiency and availability.For documents that do not involve confidential information,they should be disclosed in a timely manner or even simultaneously;for documents involving confidential information,quickly disclose to the public after removing confidential or protected information.The fourth chapter analyzes the exceptions to the disclosure of investment arbitration.The exceptions to the disclosure of investment arbitration can be divided into two parts.One is that the investment arbitration involves privacy information or other protected information of disputing parties or a third party.The other exception is when disclosure of information may interfere with or even undermine the integrity of arbitral process.Confidential or protected information include information that is not disclosed in accordance with the laws of the host country,trade secret,information that impede law enforcement,and information that is contrary to essential security.The integrity exception means that the arbitral proceedings cannot be affected by the publicity of certain information.When considering the exception,the stage of the arbitration process and the type of documents required to be disclosed should be fully considered.The fifth chapter analyzes amici curiae in investment arbitration.In investment arbitration,there is no requirement on the identify of the applicant of amici curiae.The standard determining the application of amici curiae mainly includes the assistance to the arbitral tribunal,whether the amici brief discussed issues within the scope of the dispute,whether the amicus curiae have significant interest in the dispute,whether the subject matter of the arbitration case involves public interest and whether the participation of amicus curiae would interfere with the arbitral process.Those who are allowed to participate into the procedure as amici curiae are entitled to submit written submissions but not to have access to relevant documents of the case and plead orally.Although amicus curiae is not allowed plead orally,they can auidit the hearing through the arrangement under the publicity regime.In addition,amicus curiae have other access to the case documents.Judging from the effect of the participation of the amici curiae,although the frequency of its participation has increased year by year,in most cases the amici briefs have no acutal impact on the decision of the arbitral tribunal.The limitations on the amicus curiae is due to the consideration of reducing costs.The author believes that the participation of the amicus curiae cannot be deviated from the main function of the arbitral tribunal to resolve disputes,but at the same time,in some cases,the arbitral tribunal should allow the amicus curiae to plead orally,which will greatly increase the credibility of their opinions,and will also reflect the transparency of investment arbitration.The positive impact is far greater than the cost.