Research On The Principle Of Transparency In International Investment Arbitration

For a long time,international investment arbitration has continued to be characterized by the efficiency and secrecy of traditional commercial arbitration.The importance of secrecy,as one of the core features of commercial arbitration,is also reflected in investment arbitration,however,in terms of the outcome of investment arbitration,the arbitral tribunal tends to make the award in favor of the investor,and the interests of the host country are often ignored.This has led to a crisis in the legitimacy of investment arbitration,and the strong will of the host country public to protect their right to know is the main driving force for the reform of investment arbitration transparency.Along with the implementation of China’s "going out" strategy and the promotion of "One Belt,One Road",China is transforming from a capital importing country to a capital exporting country,and the proportion of foreign investment is increasing,and the number of investment treaties signed with other countries is also increasing.In this context,the probability of disputes between Chinese investors and host countries has been greatly increased,and the number of investment arbitration cases has inevitably increased.The significance of the trend of transparency reform in the international community for China’s "going out" strategy cannot be ignored,therefore,the research on investment arbitration transparency reform in this paper has certain practical significance.The main content of this paper contains the following four parts.The first part starts with the current situation of international investment arbitration,analyzes the origin of the international investment arbitration system,and deciphers the changes in the development of the investment arbitration system in recent decades from the changes in the number of cases and the number of countries covered,introduces the crisis of legitimacy of investment arbitration from the imbalance in the protection of public interests of host countries by arbitration results,and analyzes the background and manifestations of the crisis,and concludes that the reform of investment arbitration transparency is carried out The crisis is analyzed in terms of its background and manifestations.It also examines the historical evolution and necessity of transparency in international investment arbitration,analyzes the different attitudes of arbitral tribunals towards transparency in different periods of time through two typical cases,and explains the development trend of transparency in investment arbitration,and elaborates on the necessity of transparency reform from three aspects: the difference between investment arbitration and commercial arbitration,the practical significance of transparency reform,and the value of transparency to substantive law.The second part discusses the development of international investment arbitration mechanism in terms of transparency,introduces the transparency rules under NAFTA,ICSID and UNCITRAL respectively,and compares the provisions on transparency in investment arbitration in various regional investment agreements,and analyzes the reform and development of transparency rules in investment arbitration mechanism.It also combines specific cases to understand the application of the rules on transparency in practice,as well as the related limitations,with a view to providing lessons for China’s investment practice.The third part analyzes the game between the principle of transparency and the traditional principle of secrecy,and through the subversion of the original secrecy of arbitration by the transparency reform,it is pointed out that the reform of transparency needs to be viewed from a dialectical perspective,and the secrecy cannot be blindly sacrificed at the expense of secrecy.By analyzing and discussing the conflict between secrecy and transparency,we propose to balance transparency and secrecy in international investment,and advocate to establish a balance mechanism between transparency and secrecy by introducing the principle of proportionality and following transparency exceptions.In the fourth part,from the current situation of China’s investment arbitration,China proposes to improve the position and measures to be taken in the face of transparency reform,suggesting that China should focus on the practical effects of bilateral investment treaties and regional trade agreements when signing them,but also look at the possible changes in the future,face the wave of transparency reform with a positive and open attitude,recognize the positive role of transparency in investment arbitration In addition,we should learn from the transparency rules of other international organizations in order to improve the formulation of transparency rules in China.