On Transparency In International Investment Arbitration

As an important way to settle the disputes between investor and state, internationalinvestment arbitration has been criticized for lacking transparency because of itsexceedingly secret. Along with the rising of global civil society, higher requirements for"good governance" has been proposed by public. However, the inherent shortcomings ofinvestment arbitration make it difficult to keep balance between the interests of investorsand states. Consequently, international investment arbitration was falling into serious"legitimacy crisis" for a time.In order to solve this crisis, it is imperative to enhance the transparency ininternational investment arbitration. The practices of investment arbitration indicated that itcan realize public’s desire to know and participate in the arbitration proceedings, as well assatisfy public’s demand to supervise the activity of government via enhancing transparency.All of above will contribute to rebuild public’s confidence to investment arbitration, and itis helpful to the long-standing development for investment arbitration.By studying the latest progress which has been achieved by NAFTA, ICSID,UNCITRAL arbitration mechanism and practices in their respective fields, this article findsthat there are three aspects in the transparency of international investment arbitration:publication of the arbitration documents, submissions of Amicus Curiae and public accessto hearings.Appropriate degree should be held in the process to enhance transparency. It isunfavorable to defy the characteristic what arbitration is arbitration and pursue exceedinglytransparency. Transparency in this article is not the one that negates the confidentiality ofarbitration, but a kind of suitable transparency that is base on confidentiality. That is to say,in international investment arbitration, confidentiality is the principle, and transparency isthe reasonable exception.China has been the second largest host economic entity in the world. At the same time,international investment arbitration had been accepted in multiple BITs and FTAs which were signed between China and foreign countries. As a result, it is likely that China will bea respondent in investment disputes. Therefore, China should keep a comprehensiveattitude with transparency, and take measures to benefit from transparency, through whichbe public interests safeguarded well.