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Clear as Water? Transparency in Water Concession Arbitrations


Conference Cambridge

This Friday I will be presenting a paper at the Cambridge Journal of International and Comparative Law Fourth Annual Conference: Developing Democracy: Conversations on Democratic Governance in International, European and Comparative Law. The conference will take place at St John’s College Divinity School, University of Cambridge, Cambridge, United Kingdom. Download the full programme here. My presentation is entitled ‘Clear as Water? Transparency in Water Concession Arbitrations’.

Here is the abstract:

Concession contracts are increasingly used in the water services industry all over the world. With the globalisation of markets, concession contracts are also more and more associated with foreign investment. Investor-state arbitration has been used recurrently to settle disputes related to foreign investment in the water services industry. This paper analyses several cases that have been brought before the International Centre for Settlement of Investment Disputes (ICSID). The last decades witnessed a torrent of criticism over the lack of transparency of the investment treaty arbitration system. Several scholars and practitioners have argued that this is basically the result of the application of the commercial arbitration logic and procedures to investor-state disputes. Third parties have insistently been claiming for more openness of the proceedings, demanding essentially two things: greater transparency (seeing what is going on, following the proceedings); and greater participation (influencing what is going on, taking part in such proceedings). In response to these criticisms, ICSID’s Arbitration Rules were amended in 2006 to provide for participation of non-disputing parties, namely through the submission of amicus briefs. Yet, in most cases amici are invited to file submissions without having the opportunity to review the parties’ pleadings and fully understanding the issues at stake. It is questionable whether the admission of amicus briefs alone without access to the arbitration record or oral proceedings is enough to address concerns over the transparency and legitimacy of investment treaty arbitration. In the cases under analysis, amici curiae had a general sense of what was going on but could not view the exact contours of the dispute – they were at best ‘myopic amici’. Investment arbitration is unlikely to be perceived as more legitimate if third parties and the overall community begin to suspect that the system only pays lip service to the goal of transparency.



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