ANU Law scholar co-authors chapter on transparency in international investment arbitration

Dr Shirlow and the late Professor Caron new chapter
Dr Shirlow and the late Professor Caron’s new chapter, ‘The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits’.

Dr Esmé Shirlow, a senior lecturer at The Australian National University (ANU) College of Law, has co-authored a new chapter with the late Professor David D. Caron of King's College London (Judge, Iran-United States Claims Tribunal). It traces the development of procedural transparency in international investment arbitration, teasing apart different types of transparency whilst also considering their objectives and consequences.

Published in The Oxford Handbook of International Arbitration (edited by Professors Thomas Schultz and Federico Ortino) and entitled ‘The Multiple Forms of Transparency in International Investment Arbitration: Their Implications, and Their Limits’, the chapter analyses transparency and the importance it holds for reform agendas in both investment treaty arbitration and other fields of international dispute settlement.

In this Q&A, Dr Shirlow further explains what makes this topic important and how her newest work relates to her other research in this area.

1. What does this Chapter explore?

This Chapter uses as its context the procedural reforms that have taken place – and which remain ongoing – concerning transparency in investor-State dispute settlement. Investor-State dispute settlement historically was not accompanied by extensive procedural rules requiring any transparency of the arbitral proceedings. This situation provoked significant criticisms of investment arbitration, which came to be perceived as a ‘secret’ form of dispute settlement. The secrecy associated with investor-State arbitration has been considered particularly problematic because this area of law enables covered foreign investors to challenge domestic legislative, policy and judicial decisions adopted by the countries which host their investments, often with significant policy and fiscal implications for governments. Criticisms of the secrecy associated with investor-State arbitration ultimately prompted States and arbitral institutions to initiate reforms in order to improve the procedures associated with international investment arbitration. This has included reforms designed to make more information about arbitral proceedings publicly available and to provide greater participatory rights for parties other than just the investor and the responding State.

Our Chapter traces the development of procedural transparency in international investment arbitration to tease apart different types of transparency, while also considering their objectives and consequences. The analysis demonstrates that the meaning, promise and limits of transparency will differ for different stakeholders and different reform objectives. The Chapter draws out the differences between the concepts of transparency as ‘availability’, ‘access’, and ‘participation’ to identify three distinct types of ‘transparency’. It connects these concepts to the reforms to procedural transparency that have occurred for investment arbitration to date. This supports an analysis of whether the types of transparency reforms that have been pursued thus far are adapted to achieving their stated purposes. What emerges is an understanding of transparency that is closely connected to the development of, and hopes for, international investment arbitration.

2. Does it build on any of your previous research?

This Chapter develops previous work by myself and Professor Caron related to ‘backlash’ against investment treaty arbitration. This work highlighted the necessity of nuanced, holistic and critical analyses of reforms to international dispute settlement as well as about the rhetoric that accompanies them. Building on this work, the Chapter develops a novel framework for understanding the beneficiaries and scope of transparency measures in international dispute settlement as well as the limits of particular types of transparency for achieving particular reform objectives.

The Chapter further builds on sole-authored work by myself and Professor Caron, on transparency in international law specifically. Professor Caron, for example, had previously published significant research on opacity and transparency in arbitral deliberations and decision-making processes. For me, the Chapter builds on my 2016 article in the ICSID Review on transparency reforms in investment arbitration and my 2017 article on the development of transparency in international law, which won the Göttingen Journal of International Law’s Essay Prize.

3. Why is this an important Chapter?

Transparency has emerged as a key means of improving international investment arbitration, including to make it more accountable and more legitimate. A reform agenda that seeks to identify and enact effective changes to reach this promise must take into account the types of transparency best adapted to achieve these goals. In considering transparency in international investment arbitration, this Chapter highlights that it is vital for States, arbitral institutions, and other stakeholders to confront the assumptions and motivations underpinning suggested reforms in order to best adapt those reforms to achieve their stated objectives.

For me personally, this is an important Chapter because it continues conversations that David and I started many years ago and which animated many of our collaborative projects since. While the publication of the chapter feels bittersweet, I’m immensely grateful to David’s family and the editors of the volume for trusting me to reflect on and carry some of our conversations forward through this chapter.

4. How does it impact current events, debates or academic controversies?

This Chapter’s analysis of transparency holds importance for reform efforts in both investment treaty arbitration and other fields of international dispute settlement. The Chapter highlights the importance of clarifying what is being proposed through reform efforts, what is being excluded from that discussion, and how these understandings influence the concrete outcomes of reform efforts as well as the appraisal of their success by disparate stakeholders.

5. How does it relate to other current projects you are working on either solo or collaborating with ANU/international colleagues?

I develop similar themes about the need for holistic analysis of reform objectives and achievements in recent work considering the interaction between existing reform efforts (including those emphasising a need for enhanced transparency) and reforms prioritising alternative dispute resolution, particularly investor-State mediation. This includes a forthcoming article in the Yearbook on International Investment Law and Policy (‘The Promises and Pitfalls of Investor-State Mediation’) and forthcoming chapter in a Brill collection (‘Back into the Shadows? Public Participation in the Peaceful Settlement of Investment Disputes through Non-Arbitral Means’).

I’ve also published several blog posts on these topics, including two as part of a series on Kluwer Arbitration Blog that I coordinated this year. I’ve also developed an analysis of the broader potential impacts of transparency reforms for international dispute settlement in a co-authored forthcoming article in the British Yearbook of International Law, which considers the impact of transparent treaty negotiations on treaty interpretation.

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