CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… However, the national judicial or other redress procedures have to be regarded as a threshold scenario, which will take place only when the competences of all the subjects involved were applied in a flawed manner. Nevertheless, every subject will most probably be paying increased attention to the balancing of interests since their actions will be under a scrutiny, which will position the actors within this field on thin ice. This gives a more or less positive incentive to the institutions to handle the matter with their best efforts. To conclude, transparency will increasingly be in the purview of the up-coming legal questions when talking about international investment arbitration. Public international arbitrations tend to affect a larger segment of civil society than private arbitration, both because the decision resulting from the public arbitration may require a change in the law and practice of the state party and because the public will likely pay for any liability imposed on a state as a result of the award through tax revenues. 59 As much as confidentiality is attractive and in some cases devoutly expected, investment dispute litigations have the potential to muddy the still waters of confidentiality, since their legal nature is causing a shift in the status quo towards more participatory power vested in the public. In this fashion the public gets a valuable tool which will help to monitor governmental policies and decisions and hold governments accountable for their actions taken in the course of the arbitral proceedings. Increasing the level of transparency, in the view of the OECD Investment Committee, is subject to necessary safeguards for the protection of confidential business and governmental information, is desirable to enhance the effectiveness and public acceptance of international investment arbitration, as well as contribute to the further development of a public body of jurisprudence. Members of the Investment Committee generally share the view that, especially insofar as proceedings raise important issues of public interest, it may also be desirable to allow third party participation, subject however to clear and specific guidelines. 60 In Europe, the increasing efforts of the EU in the area of promoting transparency are shaping the view of the Member States towards a greater extent of accessible information and more effective instruments leading to obtaining requested statements. The ‘rule of law prism’ that we are basically using implies that our explorations focus upon those appearances of transparency which have or may have a normative effect on both the EU/Community and national legislatures and administrations. 61 Under this doctrine, when considering the judicial review of the decisions denying access to information, the starting point of the Union courts is that, as the public right to 59 C. G. Buys, “The Tensions between Confidentiality and transparency in International Arbitration”, T he American review of International Arbitration , vol. 14 (2004), pp. 134. 60 OECD, Transparency and Third Party Participation in Investor- State Dispute Settlement Procedures: Statement by the OECD Investment Committee (June 2005). 61 S. Prechal, M. E. de Leeuw, “Transparency: A General Principle of EU Law?” in U. Bernitz, J. Nergelius, C. Cardner, General Principles of EC Law in a Process of Development: Reports from a Conference in Stockholm, 23-24 March 2007 (Kluwer Law International, 2008), pp. 204.

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