Transparency Issue in the Amendment of ICSID Arbitration Rules - Public Right to Information vs Public Confidence?

Abstract

The International Centre for Settlement of Investment Disputes (ICSID) began its fourth-time Arbitration Rules amendment process on 7 October 2016. One of the issues currently being looked into is the scope of transparency and its expansion in the upcoming amendment. The public consultation for the process reveals that consultees are keen to see a greater level of transparency be brought into this arbitration dispute mechanism. In particular, the dispute process can involve host states, investors, home states and the public. Many speculations were expressed on this issue. However, not until April 2018, one gets a glimpse of how the working paper group may address the issue of transparency at the Charles N.Brower Lecture on International Dispute Resolution on 5 April 2018 given by, and at a later interview with Ms. Meg Kinnear, the Secretary General of ICSID. The speech indicates that the consideration on the issue of transparency is “public confidence”. This is different from the ethos of “the public’s right to know” instilled in the Transparency Rules. This article analyses the transparency issue from the language used in the interview to formulate a view on how this issue would be and could be treated in the amendment.