The critiques of investment treaties and ISDS are by now well-known, and too many insightful writings identifying and analyzing substantive and procedural issues have been produced to cite in this piece. One reflection of the consensus was states’ agreement within UNCITRAL that there were concerns regarding (1) the cost and duration of dispute resolution, (2) the independence and impartiality of adjudicators, and (3) inconsistency and incorrectness of decisions. Transparency—i.e., access to treaties, decisions and awards issued by tribunals, and parties’ submissions to those tribunals—has been essential to diagnosing those and other problems and identifying possible solutions that can be implemented at the national, regional, and international levels. Databases and search tools facilitating access to and analysis of relevant documents, key among which are the databases hosted by UNCTAD (notably the International Investment Agreements Navigator and the Investment Dispute Settlement Navigator), have therefore played an important role in reform efforts.

There are myriad examples of the benefits of transparency and availability of data on investment treaties and ISDS for informing and shaping reforms. For instance, without access to awards setting forth the disputing parties’ cost submissions (or at least summaries thereof in an award), it would be impossible to know how much defending a dispute can be expected to cost a state: a study based on publicly available data as of May 2020 estimated it at just under USD 5 million, and to which may also be added all or part of the tribunal’s costs (which were estimated in that same study as roughly USD 1 million). It would likewise be impossible to know whether and to what extent arbitrator challenges within the context of different arbitral rules and institutions adequately protected disputing parties’ rights to have their cases heard before arbitrators that have the requisite qualities of independence and impartiality, or, indeed, what concepts of “independence” and “impartiality” were interpreted as requiring. Access to awards and underlying treaties is also essential to evaluating the legal and factual correctness of awards, and to comparing awards issued under the same treaty and across treaties concluded by the same and different states. This is essential to understanding whether and to what extent ISDS outcomes are consistent for the given investment treaty or can be rationalized across treaties at a more systemic level, enabling an understanding of the extent of internal consistency (or lack thereof) within the narrow world of “investment treaty law,” and consistency (or lack thereof) of individual investment treaty decisions or “investment treaty law” with other relevant areas of domestic and international law, including human rights and environmental law.

While transparency thus enables problems to be identified, it is also essential for identifying possible reform solutions and assessing their effectiveness. States, for example, can review the database of publicly available treaties on UNCTAD’s IIA Navigator to explore more modern approaches to treaty drafting adopted by other states in signed agreements and models. While there is much similarity across the thousands of texts that have been negotiated, a close examination also reveals significant variation and evolution as states, often in response to their own or other states’ experiences with ISDS claims and/or decisions, may:

• opt to omit certain previously included standards of protection,
• craft new language to express what is (and what is not) intended by states’ substantive obligations,
• add language on investor obligations,
• craft exceptions,
• shift approaches to dispute settlement, including by limiting or excluding ISDS, and/or
• establish new institutional mechanisms so as to ensure that the treaty is more of a living instrument that encourages ongoing collaboration between or among the state parties and stakeholders within them.

Publicly available databases, such as UNCTAD’s, with useful search and filter functions are crucial for enabling states to be aware of these nuanced and evolving approaches to investment treaties, and to be able to use them to inform their own responses to questions of whether to negotiate, with whom, and for what. In the context of negotiations, being able to refer to examples of other models or treaties that have already adopted the desired approach—including models or treaties of the other state party/parties to the negotiations—can be particularly useful for making the case that the same or similar approach should likewise be employed in the treaty under negotiation.

Similarly, academics can also use such databases of treaties and awards to analyze at a more macro level the desirability and efficacy of different reform strategies, which in turn can help inform state action. They can, for instance, use the databases to identify what impacts more “modern” approaches or innovations have on ISDS outcomes. Doing precisely this, one influential study found that “new, supposedly reformed IIAs produce interpretive outcomes in investment arbitration that mirror those of old, unreformed treaties.”^[1] This, in turn, has implications for reform options.^[2] If states want to avoid those old outcomes, what must they do? Likewise, in reform discussions taking place at UNCITRAL Working Group III on the practice of “double-hatting,” whereby arbitrators also act as counsel, academics provided data from publicly available decisions on the prevalence of the double-hatting practice and about whether and to what extent restrictions on double-hatting would have a meaningful impact on the pool of available arbitrators—concluding it would likely not have such an impact.^[3] On the discussion at UNCITRAL of whether and to what extent states should regulate and/or require disclosure of third-party funding arrangements, one reason cited against either regulation or disclosure was that there was a lack of systematic evidence that the use of third-party funding gave rise to concerns, which could potentially arise from an increase in the number of claims, a rise in the amounts being claimed, and increases in the costs of disputes, challenges for states in recovering cost awards, conflicts of interests, or other issues. Yet it was also highlighted in those discussions that, without disclosure of the existence and at least some aspects of funding arrangements being made mandatory, and without such disclosures also being made public—as opposed to just being disclosed to the other disputing party and the tribunal—neither of which happens with any regularity at present, it would be impossible to properly evaluate the practice of third-party funding and understand whether and what type of further regulation of it may be desirable. If evidence of a problem is a prerequisite to regulation, adopting an approach whereby no such evidence can be reliably or systematically gathered—i.e., an approach of not requiring public disclosure of relevant information—essentially forecloses the possibility of such regulation being adopted, even if the facts and circumstances warrant it.

Of course, aspects of transparency may give rise to some challenges. For disputing parties, for instance, there are costs associated with making necessary redactions before information is published. There may also be concerns about allegations of wrongdoing and potential liability being publicized. It should be noted that it is not just states that may be concerned about disclosure for this reason. The redactions in Copper Mesa v. Ecuador illustrate that investors, although formally in the role of “claimants” in ISDS cases, may themselves face allegations of wrongdoing in connection with their investment and may seek to prevent public knowledge of their own malfeasance.^[4] More generally, transparency has enabled a situation in which one state may effectively be held to the standards enunciated by tribunals interpreting treaties concluded by other states in disputes in which they had no rights to participate (and about which they may not have even known).^[5] This is because disputing parties often cite to publicly available decisions rendered under other treaties, and tribunals often cite to or rely upon those decisions in interpreting and applying the treaty before them. Additionally, the fact that tribunals’ awards are relatively easier to access than state submissions in ISDS cases means that evidence of state practice that is reflected in states’ briefs seems to play less of a role in shaping interpretations of investment law than tribunals’ interpretations. But with respect to each of those two debatably undesirable consequences of transparency, the fault is not so much with transparency as it is with the approaches used to determine the content of the law, and to the fact that transparency is still partial in many ways, including that it is not as common with respect to briefs as it is with respect to awards.

Overall, as the number of treaties, submissions, decisions, and awards continues to grow, transparency of these texts should do so commensurately in order to accurately understand what the law is, what it requires, how to effectively participate in its interpretation and application, what problems arise in how it is being interpreted and applied, and how to address those problems in the context of future treaties and future disputes. More than just being available, these texts—largely generated at public expense—should also be accessible, meaning, among other things, that they are in searchable/filterable databases that are freely accessible, not hidden behind paywalls or within the files of certain repeat players.

Author

Lise Johnson is Partner at Curtis, Mallet-Prevost, Colt & Mosle LLP and a Senior Fellow at the Columbia Center on Sustainable Investment. These comments are made in her personal capacity.

^[1] See Alschner, W., & Sarmiento, F. (2022). An interview with Wolfgang Alschner on investment arbitration and state-driven reform: New treaties, old outcomes. Investment Treaty News. https://www.IISD.org/ITN/2022/07/04/an-interview-with-wolfgang-alschner-on-investment-arbitration-and-state-driven-reform-new-treaties-old-outcomes-wolfgang-alschner-florencia-sarmiento/ (containing an interview with the author of that study, Wolfgang Alschner, in which he describes his research and conclusions).
^[2] Id.
^[3] Academic commentators relying on such data noted during the negotiations that restrictions on double-hatting in treaty-based ISDS disputes would not significantly negatively impact the arbitrator pool. Nevertheless, concerns about such impacts appeared to be among the reasons why states were reluctant to impose broad ex ante prohibitions on the practice. This comment is based on the author’s attendance in the UNCITRAL WGIII meetings.
^[4] The film The Tribunal touches upon these redactions: ITN Issue 3, 2025 – Investment Treaty News.
^[5] See generally Alschner, W. (2022). Ensuring correctness or promoting consistency? Tracking policy priorities in investment arbitration through large-scale citation analysis. in D. Behn, O. Kristian Fauchald, & M. Langford (Eds.), The legitimacy of investment arbitration: Empirical perspectives, pp. 244-254 (looking at tribunals’ preferences and practices for cross-treaty citation and finding that 75% of the citations in the data set “link[ed] agreements that are very dissimilar, that is, have less than 50% of their text in common.” Id. at 252).