Studies on the Transparency in International Trade and International Investment Dispute Settlement

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This research project aimed at elucidating the possibility of enhancing transparency in international trade and investment dispute settlement through an international joint research of scholars of international economic law and NGO leaders by (i) analyzing the theoretical issues surrounding transparency in these dispute settlement procedures, and (ii) examining various policy proposals for enhancing transparency in these disputes. In 2008 and 2009, the research team held two panels in academic gatherings (Inaugural Conference of the Society of International Economic Law (July 2008, Geneva University) and the Asian Society of International Law 2nd Conference (August 2009, University of Tokyo)), and each member of the team made presentations on his/her research topic.In 2010, each member engaged him-/herself in writing final paper on his/her research topic, after discussing each other's presentations. At the time of this report, all members except Justice Feliciano have submitted his/her … More papers. Upon receiving Justice Feliciano's paper, the project leader will co-author an introduction with Mr.Daniel Magraw, and will compile all the papers in an edited book titled Transparency in International Trade and Investment Dispute Settlement, to be published from Cambridge University Press (CUP). The project leader has already contacted with the CUP, and has received a positive response toward publication from the latter.The details of the research result will be contained in the above book. Following are the outline of the research result :(1) Transparency in WTO dispute settlement and investment arbitration may be evaluated in light of (i) whether the dispute procedure is open to the public, and (ii) whether and to what extent the relevant documents (disputing parties' submissions and final decisions of the adjudicating bodies (reports of the Panel and the Appellate Body and arbitral awards) are publicly available.(2) These dispute procedures are less transparent than domestic court procedures and international adjudication (e.g., International Court of Justice) bur are more transparent than international commercial arbitration. This may be explained by (i) the character of the disputing parties (WTO member governments and host states and foreign investors), (ii) the characteristics of the subject matter of the disputes (both deal with the legality of domestic regulation but they indirectly touch on the interests of private firms), and (iii) both allows for the possibility of negotiating deals between the parties outside of the procedure.(3) On the other hand, in both procedures, the legality of domestic public policy are frequently at issue, which raises the concern of general public of the disputing states and thus an increasing demand for more transparency.(4) It is, therefore, necessary to strike a delicate balance between the specific characteristics of these dispute settlement process (see (2) above) and the justifiable demand for more transparency by the general public (see (3) above), and we hereby suggest that each dispute settlement process enhance transparency, taking into consideration (i) the characteristics of the issues and (ii) the characteristics of the disputing parties, and (iii) the need to protect business confidentiality of the private parties involved in the dispute. One member, however, asserts that there is no need to enhance more transparency in WTO dispute settlement process, because some dispute cases might be better solved through domestic court procedure of importing countries, where more transparency is secured. Less