The Next Transparency Battleground: International Arbitration

by Peter Spiro

Interesting item from The Economist here.  It is becoming increasingly clear that any important international process or institution is going to be held to transparency norms.  And where there is power, there must also be accountability.  In the dispute resolution context, that takes the form of NGO participation. Why shouldn’t NGOs be able to participate in proceedings with public policy implications, at least in the manner of amicus briefs.  I never could quite fathom why states have gotten so agitated about NGO amicus participation in the WTO, other than out of hidebound adherence to the table manners of sovereignity.

The fact that international arbitration is institutionally competitive adds an element here not present where tribunals have a decisionmaking monopoly (as in the WTO).  I’m not sure which way that cuts, though.  Over the long run, arbitration platforms that are open and allow broad participation will enjoy greater legitimacy; in the short, corporate and state arbitral litigants might just prefer to keep things quiet.

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