A new report addresses transparency provisions in international investment agreements (IIAs), and offers practical policy guidance and drafting suggestions for IIA stakeholders.
Entitled Transparency, the study is the most recent sequel to UNCTAD's Pink Series of papers on IIAs.
It examines the way in which transparency is addressed in IIAs, and how the thinking on transparency provisions has evolved since the publication of UNCTAD's 2004 volume on the topic.
Among the new developments cited is the expansion of transparency requirements to investors. A further trend is the emergence of transparency provisions within investor-State dispute settlement (ISDS).
The study focuses in particular on the emergence of transparency as a consideration in ISDS. It reviews the implications of this conceptual shift for dispute resolution. A key feature of the analysis is a focus on a new tendency in IIAs to incorporate transparency and public-participation provisions in dispute settlement procedures. The report also considers the sustainable development implications of this approach.
The report's introduction provides an overview of the role of transparency in facilitating foreign direct investment.
Section I of the study presents a synopsis of (a) developments within the traditional framework of transparency in IIAs; (b) the extension of transparency obligations to investors in the context of IIAs; and (c) enhanced transparency provisions in ISDS procedures.
Section II provides a review of current treaty and arbitral practices on transparency.
Section III presents a set of policy options on transparency issues for States to consider during the process of IIA negotiations.
In this final section, the study also analyses the potential implications of these options for sustainable development imperatives. In particular, it identifies those provisions which have a greater capacity for strengthening the development dimension of IIAs. It is hoped that this approach will assist negotiators in deciding whether to include transparency provisions in IIAs and in ISDS provisions, and, if so, which formulations can yield optimal results.
The sustainable development dimension of transparency in IIAs highlighted in this paper is in line with UNCTAD's Investment Policy Framework for Sustainable Development. Further information may be found at 4.8 (transparency) and 6.3 (ISDS institutions and procedures) which address transparency issues.
Transparency clauses are among the more progressive provisions now emerging with greater frequency in IIAs. The trend marks a shift towards modernizing and fostering the legitimacy of the IIAs regime.
