By Antonio R. Parra
Among arbitral institutions, the International Centre for Settlement of Investment Disputes (ICSID) has long been a leader in promoting the transparency of its operation.
Through its case registers, ICSID has always published information on the institution, conduct, and disposition of proceedings administered by the Centre. Article 48(5) of ICSID’s constituent Convention requires the consent of both parties for any publication by ICSID of the award rendered in their case. Under the regulations of ICSID, this requirement also applies to the publication by the Centre of other documents generated in the proceedings. Over the years, ICSID has consistently, and usually successfully, sought the consent of the parties for its publication of awards; and it has lately redoubled its efforts to obtain consents missing for the publication of some older awards and decisions. Amendments of the Centre’s arbitration rules have mandated it to publish excerpts of the legal reasoning of awards even in the absence of such consents. The website that ICSID maintains has become the main vehicle for its publication of awards (full texts or excerpts) and information from the case registers. Public participation in and access to ICSID arbitration proceedings have been fostered by further amendments of the rules confirming the authority of the arbitral tribunals to accept and consider amicus curiae briefs and to allow third parties to attend or observe hearings if neither disputing party objects.
But with enormous increases in the number of investment treaty arbitration cases submitted to ICSID, many of them raising issues of public concern, the Centre is subject to growing pressure for even greater and more complete transparency. Rising expectations in this regard are reflected in the Rules on Transparency in Treaty-based Investor-State Arbitration recently adopted by the UN Commission on International Trade Law (UNCITRAL). Whereas ICSID still may not publish the full texts of awards or other documents from its cases without the consent of both parties, or have hearings open to the public over the objection of a party, the UNCITRAL Rules on Transparency do not set similar restrictions on publication of documents and public access to hearings in treaty-based cases brought under the UNCITRAL Arbitration Rules.
The time may thus be coming for ICSID to try to reverse its general rules on these points. More particularly, it might aim to amend its regulations and rules to provide for publication of all the main documents generated in proceedings, unless or except to the extent decided otherwise by the arbitrators, and for tribunals to have full authority to allow third parties to attend or observe hearings. Such amendments would involve renewing a suggestion made by the ICSID Secretariat a decade ago regarding attendance at hearings. The suggestion surely would now garner more support. Any obstacle to the amendments posed by the requirement in Article 48(5) of the ICSID Convention, for consent of the parties for publication by the Centre of the awards, might be surmounted by the consent being incorporated in amended arbitration rules, applicable under subsequently formed ICSID arbitration consent agreements.
Antonio R. Parra is the author of The History of ICSID. He served as the first Deputy Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID) from 1999 to 2005 and was Legal Adviser at ICSID from 1990 to 1999. His earlier positions include Senior Counsel, ICSID; Counsel, Office of the Senior Vice President and General Counsel, World Bank; Counsel, Policy and General Affairs, World Bank; Assistant Legal Counsel, OPEC Fund for International Development; and Research Staffer, OPEC Secretariat. At the World Bank’s Legal Vice Presidency and ICSID, Mr Parra worked on the establishment of the Multilateral Investment Guarantee Agency and the preparation of the World Bank Guidelines on the Treatment of Foreign Direct Investment.
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