Openness in International Investment Law: Too Much of a Good Thing?

• Autore: Jens Hillebrand Pohl
• Carica: LL.M. (Harvard); Visiting Researcher, Max Planck Institute for Procedural Law; Lecturer and PhD Researcher, Maastricht University, Faculty of Law
• Pagine: 219-231

ARTICLES & ESSAYS

https://doi.org/10.6092/issn.2531-6133/8773

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.3:2 2018]

This article is released under the terms of Creative Commons Attribution 4.0 International License

219

Openness in International Investment Law: Too Much of a Good Thing?

JENS HILLEBRAND POHL†

TABLE OF CONTENTS: 1. Introduction; 2. The Scope of Application of Substantive

Transparency as an Element of Fair and Equitable Treatment; 3. Conceptualizing

Transparency as an Emanation of the Rule of Law; 4. Implications.

ABSTRACT: In recent years, investment treaty practice and arbitral case law have

increasingly recognized government transparency as an obligation of international

investment law. Yet, there could hardly be less of a consensus regarding what level of

transparency is required, with case law ranging from one strand requiring “total

transparency” to another merely prohibiting “complete lack of transparency”. This

apparent paradox seems to be about to change. Some of the most recent treaty practice

appears to endorse the latter, restrictive interpretation of transparency. How come? This

article sets forth two arguments: First, transparency is in part a binary concept, similar

to many other familiar and related legal concepts, such as good faith, lack of arbitrariness

and due process, and that transparency could thus, without contradiction, be said to be

either “total” or “completely lacking” and nothing in between. Second, restrictive case

law and the most recent treaty practice refuses to recognize as a legal requirement the

concept of transparency as denoting a gradual quality of the law and of the administration

of law.

KEYWORDS:

Transparency; Investment Arbitration; Rule of law; Normativity