The Right to Access Information in Investment Arbitration: a Conflict between Confidentiality and Transparency

While confidentiality is often cited as an advantage of arbitration over litigation, state involvement in investment arbitrations calls for a higher degree of transparency. Thus, confidentiality practices in investment arbitration have come under harsh criticism. Such criticism has to do, at least in part, with developments in the field of human rights law culminating in the recognition of the right to access information as a human right along with a duty of states to divulge information by regional human rights courts. This criticism has already brought about a change in investment arbitration. ICSID amended its rules of procedure in 2006 and more recently in 2022. UNCITRAL also annexed a set of rules regarding transparency in treaty-based arbitration to its arbitration rules. Finally, in 2015, United Nations Convention on Transparency in Treaty-based Arbitration was concluded in an effort to maximize transparency. This study deals with how transparency and confidentiality interact where they appear to be most conflicting, that is to say in international investment arbitration.