ABSTRACT
Realising the importance of transparency in developing international law and enhancing legal certainty, the International Centre for Settlement of Investment Disputes (ICSID) has been at the forefront of promoting transparency at both the pre-award and post-award stages within the limits of the ICSID Convention. Despite these efforts, however, ICSID can still be criticised from a rule of law standpoint. There seems to be a mismatch between the information about arbitration proceedings that ICSID’s current rules allow to be made public and the information that civil society expects to access. Even after major amendments introduced in 2022, ICSID’s rules contain loopholes that allow states acting in bad faith to deceive the public about the outcome of ICSID proceedings. This is regrettable since violations of investors’ rights may involve deliberate wrongdoings by governments and public officials. Meanwhile, states compensate investors for such breaches with taxpayers’ money. Because of the limited access to information, civil society cannot exercise its role in terms of checks and balances – namely, holding those responsible for the wrongdoing accountable and pushing for legislative changes that can prevent similar abuses of power in the future. After showcasing three concrete examples that illustrate how states have taken advantage of the loopholes in ICSID’s rules to hide the true outcome of ICSID proceedings, this chapter makes concrete recommendations about the reforms that are needed to curtail such bad-faith behaviour in the future.
