How transparency and confidentiality are balanced in ICSID proceedings
The need to balance openness and confidentiality is common to all dispute resolution systems. Investor-State dispute settlement (ISDS)—the sort that ICSID is responsible for—is no different.
Public interest in ICSID arbitration cases swelled in the late-1990’s, as ICSID’s caseload expanded. With that came calls for greater transparency. In the decades since, transparency has been discussed—and has evolved—extensively. Yet it is still commonly misunderstood.
Here, then, is a brief primer on transparency in the ICSID context.
Turn first to the instrument of consent
Chief among the misunderstandings is that ICSID decides—first and foremost—on the levels of transparency in an ICSID arbitration. In fact, tribunals turn first to the instrument of consent—that is, the treaty, contract, or
domestic investment law in which the State party has agreed to resolve legal disputes at ICSID.
It is common for modern investment treaties and free trade agreements to mandate different levels of transparency, for example, whether:
- case-related materials (such as decisions and awards) will be made publicly available
- hearings will be open to the public
- the tribunal has the authority to accept amicus curiae submissions from a person or entity that is not a disputing party, such as an NGO or business association
When present in the instrument of consent, the tribunal will follow these provisions and often may also memorialize them in its first procedural order.
ICSID’s role in transparency
Older treaties, however, are often silent on matters of transparency and confidentiality. In these situations, the tribunal applies the relevant ICSID rules and regulations. The parties also have a say in the matter: they can agree on how matters of transparency are dealt with in the proceeding, so long they don’t conflict with mandatory provisions in the instrument of consent or ICSID rules.
When the World Bank Executive Directors created ICSID in the 1960’s, transparency was not addressed in depth. However, the ICSID Convention does require the parties’ consent to the publication of awards. Since the ICSID Convention has not been amended since coming into force in 1966—this practice is baked into cases that fall under the ICSID Convention.
The ICSID rules also require a public register of cases—something first published in the ICSID annual report, and eventually on the ICSID website. Today that register takes the form of an incredibly comprehensive database of ICSID cases, which is one of the leading research tools in the field.
In the decades since the establishment of the ICSID Convention, Rules, and Regulations, matters of transparency and confidentiality have evolved significantly in other ways. Indeed, ICSID has been at the vanguard of how these issues are dealt with in international investment disputes.
Significant milestones were achieved in 2006, with new provisions that specifically addressed the publication of awards, public hearings, and non-disputing party (i.e., amicus curiae) participation in proceedings. These provisions were further enhanced in 2022, when ICSID introduced the most extensive amendments to its rules in its history.
The new rules under the ICSID Convention deem that a party has given consent to publish awards unless it objects in writing within 60 days after it is issued—effectively putting the onus on parties to act quickly on the matter. If a party does object, ICSID promptly publishes legal excerpts of the award. Under the ICSID Additional Facility Arbitration Rules—which are available to non-ICSID member States and investors who are not nationals of a Member States—awards, orders, and decisions are published with redaction of confidential information.
Notably, the new ICSID rules also provide guidance on the types of information that parties and tribunals may consider confidential.
Transparency matters (and confidentiality does too)
There are multiple benefits to transparency in ICSID cases—from strengthening public understanding and confidence in the dispute resolution process, to enhancing the consistency of tribunal decision making.
But parties must also have confidence that confidential information will be protected—whether that relates private business information or government disclosures that have national security implications, amongst others. In an age of heightened awareness of the need to safeguard personal information, the new ICSID rules also account for protected personal data.
The result is a balanced set of rules for transparency and confidentiality, which work in conjunction with the instrument of consent and the interests of the parties.