Transparency in the Dispute Settlement Process: Country best practices

In many investor-state arbitrations, it is difficult or impossible even to know that the dispute has been initiated, what the issues and arguments are, and what decisions or awards have been made to resolve the matter.

This lack of transparency is not something that the treaties require; rather, it is an outcome that arises because the treaties are often silent on issues of transparency and confidentiality in investor-state dispute settlement. Yet this is changing. Concern about the lack of public access to information regarding investor-state arbitrations has been mounting over roughly the past decade, tracking the rise of treaty-based investor-state arbitration itself. In response to those concerns, states have begun to take more direct control over the matter by inserting provisions on transparency directly in their treaties. This bulletin provides an overview of those practices, with a focus on individual agreements negotiated by Canada, the United States, Chile, Singapore, Australia and New Zealand, as well as regional arrangements, such as the North American Free Trade Agreement (NAFTA) and the investment agreement of the Common Market for Eastern and Southern Africa (COMESA), among others. It also reviews a number of selected model agreements. The aim is to illustrate the various approaches countries have increasingly adopted to incorporate transparency into the various stages of the dispute settlement process.