Advantages and Disadvantages of Transparency and Public Participation in Investment Arbitration

Bogdan Ovidiu BIRIȘ*

Faculty of Law, University of Bucharest

Abstract: Transparency and public participation in international arbitration proceedings is a relevant issue that has become the subject of many disputes over the last years. Given that international investment arbitration is both public and private in nature, there is a legitimate interest from the public to have increased access, and screening of, previously secretive proceedings. After all, damages awarded to investors by arbitral tribunals are paid almost exclusively from the public purse. Therefore, this paper makes the case for more transparency and access to arbitral proceedings when public interest and welfare are at stake. It analyzes the advantages and disadvantages of more open proceedings from the point of view of the investor, State authorities and the civil society, and takes into account the possible effects this might have on a number of issues such as: duration of proceedings, public interests or sensitive business information. It concludes that although transparency and public participation may, in some cases, hinder the arbitral process, it represents a small price to pay for alleviating public concerns about the ability of international corporations to influence public policies by threatening state authorities with international arbitration.

Key-words: transparency, arbitration, ICSID, NAFTA

* Biriș Bogdan Ovidiu has graduated from the University of Bucharest, Faculty of Law (2009) and the LLM in Public International Law (2011) at the same faculty. In 2013, he graduated from the LLM Program in International Law at the Fletcher School of Law and Diplomacy/Tufts University, where he focused his studies on international investment and trade law. He is currently in the third year of doctoral studies at the Faculty of Law. Previously, he has been a research assistant at the Research Centre for Criminal Studies at the Faculty of Law. He is also a diplomat, working in the International Treaties Directorate at the Romanian Ministry of Foreign Affairs. In that capacity he was designated as expert in UNCITRAL working group 3 (Reform of the dispute settlement mechanism). He is also a member of the EU working group on Transboundary investments. The opinions expressed in this paper are solely the author’s and do not engage the institution he belongs to.

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