AdvertisementThe transparency principle has a particularly vital role in international economic integration organizations because states delegate their sovereign powers to such organizations. Legal instruments applicable within such organizations display an evident deficiency of democratic legitimacy, as they have extensive power to affect human rights, while in contrast, many bodies representing the people are granted only limited participation in decision-making processes or are not involved in them at all. These characteristics place particular importance on the transparency principle, and the implementation of this standard is in the majority of cases a pre-condition of civil society’s effective control over international economic organizations, their accountability, and ultimately good governance.
AdvertisementThe Eurasian Economic Union (EAEU) is a newly created regional and international organization, which aims at fostering economic cooperation between post-soviet states, managing a customs union and creating a single economic space in the territory of its members. Several questions arise in relation to EAEU activities: Is the EAEU a purely intergovernmental organization focused solely on trade issues, or could it be a real union that can support the ideas of accountability, good governance and the rule of law? What is the role of the transparency principle in building such an institution? This article tries to answer these questions.
Sunday, February 24, 2019
Boklan & Lifshits: Legal Aspects of Transparency in the Eurasian Economic Union
Wednesday, November 14, 2018
Ohlin: Election Interference: The Real Harm and the Only Solution
Although politicians and intelligence analysts have criticized Russian interference in the 2016 and 2018 elections, international lawyers seem to be at a loss for how to understand the particular harm posed by this interference. In addition to the hacking of email accounts and disclosure of private information, the most salient aspect of the interference was the use of social media platforms, including Twitter and Facebook, to sow division and heighten nativist tendencies within the electorate. Strictly speaking, the goal of the 2016 interference was to delegitimize a potential Clinton presidency or to help elect Donald Trump as president. But far more important was the method used to accomplish these goals: the impersonation of American citizens during participation in the political process. This latter development points to the real harm of election interference, which has less to do with sovereignty and more to do with the collective right of self-determination. Foreign interference is a violation of the membership rules for political decision-making, i.e., the idea that only members of a polity should participate in elections—not only with regard to voting but also with regard to financial contributions and other forms of electoral participation. Outsiders are free to express their opinions but covertly representing themselves as insiders constitutes a violation of these political norms, which are constitutive of the notion of self-determination, just as much as covertly funneling foreign money to one candidate. The only solution to this form of election interference is transparency, i.e., to expose such interventions for what they are: attempts by foreigners to make political statements while pretending to be Americans. This article ends by cataloguing the mistakes of the Obama Administration in failing to expose this interference in real time—which is the only way to nullify its insidious impact. Ex post investigations, prosecutions, and counter-measures designed to deter future misbehavior are all insufficient to nullify the impact of electoral interference. However, recent efforts by the Justice Department and the FBI, including a new policy codified in the US Attorneys Manual, and contemporaneous indictments of Russians for interference in the 2018 election, suggest that some government actors finally understand that transparency is the only solution to election interference.
Wednesday, January 4, 2017
Hovell: Glasnost in the Security Council: The Value of Transparency
The value of transparency in decision-making is regarded as something of a truism in the public sphere; something that is uncontroversial and requires little by way of justification. In the Security Council setting, there are mounting calls for greater transparency as if publicity is some form of unconditional virtue. However, this easy embrace of transparency evades difficult questions and fails to consider the tensions it conceals. The principle of transparency is not as easy to sustain, either in theory or practice, as it first might seem. Publicity might be necessary to justify policy, but secrecy may also be necessary to effect some policies. The primary aim of this essay is to ask a question to which an easy answer is sometimes presumed: why do we need transparency in the Security Council sanctions context? In this essay, I set the foundations for a value-based theory of transparency for Security Council sanctions decision-making. It is only when we understand ‘why’ transparency is needed in this context that we can adequately answer other questions, including the ‘who’, ‘what’, ‘when’ and ‘how’ questions.
Tuesday, October 4, 2016
Feldman: International Arbitration and Transparency
AdvertisementOver the past 15 years, a significant “transparency gap” has developed between the investment treaty arbitration and international commercial arbitration regimes. With increasing frequency in investment treaty cases, the public is provided with some form of access to documents and hearings as well as opportunities for participation through written amicus submissions; only to a very limited extent have such developments occurred within the international commercial arbitration regime.
This chapter examines whether the existing transparency gap between the two regimes should be maintained. To evaluate that transparency gap, this chapter analyzes the respective regimes in light of three factors: (i) the nature of the public interest; (ii) the role of confidentiality; and (iii) the role of party autonomy.
This chapter concludes that the existing transparency gap between the two regimes should — as a general matter — be maintained. Although the public interest in particular international commercial arbitration cases can be significant — most notably in cases involving State entities or statutory claims — on a systemic level the public interest in international commercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve State entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy.
But with respect to the particular issue of public availability of arbitral awards, this chapter concludes that the existing transparency gap should be narrowed significantly, given the compelling and multifaceted nature of the public interest in that context. The public interest in obtaining access to arbitral awards exceeds — both in strength and multiplicity — the public interest in obtaining access to other documents and hearings, or in participating in disputes as amicus curiae. With respect to the future development of international law, it is the awards — not other documents, hearing transcripts, and/or amicus submissions — that hold the greatest potential for significant impact.
With a view to increasing the public availability of commercial arbitration awards, this chapter proposes three alternative models for rulemaking: (i) a default rule model (which — absent party agreement to keep awards confidential — would require publication of redacted versions of awards), (ii) a modified mandatory rule model (which would track the ICSID approach of publishing, at a minimum, excerpts of the legal reasoning in each award), and (iii) a mandatory rule model (which would track recent investment treaty practice, requiring publication of awards subject to redaction of protected information).
Tuesday, May 24, 2016
Shaffer: Transparency and the Governance of Subsidies
This essay condenses the argument made in my article with Robert Wolfe and Vinhcent Le on transparency obligations in the area of subsidies and how transparency disciplines work or might work in this area. Subsidies are important mechanisms for the provision of public goods, the correcting of market failures, and the furthering of economic development. Yet they also create transnational externalities, whether through providing advantages to certain traders or through adversely affecting global public goods. Disciplining such government support through formally binding rules is thus notoriously difficult. A focus on substantive law alone is insufficient for understanding how subsidies law develops and has effects on social understandings and practices. Discipline on subsidies depends fundamentally on the existence of fora to discuss definitions, generate information about the incidence of subsidies, and then to determine whether a particular measure fits the definition and ought to be subject to censure. In the trading system, the World Trade Organization (WTO) provides a forum regarding subsidies generally, but there are others, such as the Organization for Economic Co-operation and Development, the International Monetary Fund, the G20, and informal networks organized by non-governmental organizations and other stakeholders. The essay first looks at transparency mechanisms within the WTO governing subsidies generally, followed by those developed through other processes.
Tuesday, April 5, 2016
Mavroidis & Wolfe: Private Standards and the WTO: Reclusive No More
Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime — that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself in endless discussions regarding mundane, legalistic issues, and has not moved at all towards addressing the real concerns of developing countries. We discuss one aspect of the problem: How reclusive should the WTO allow product standards to be? We argue that the WTO should adopt a “Reference Paper” that would encourage its members to apply WTO rules for adopting those standards that already come under the aegis of the WTO to private standards. In the absence of centralized enforcement, utopia in the WTO legal paradigm, transparency disciplines imposed on standard-setters is the best the WTO could offer to those who are negatively affected by private standards.
Monday, October 19, 2015
Euler, Gehring, & Scherer: Transparency in International Investment Arbitration
The topic of transparency in international investment arbitration is gaining increasing attention. This in-depth commentary analyses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, one of the most recent and innovative developments in international law. Focusing on the application of these rules, contributors analyse the issue of transparency in investment law more broadly and provide in-depth guidance on how to apply the UNCITRAL transparency rules. Chapters encompass all treaty-based disputes between investors and state, examining the perspectives of disputing parties, third parties, non-disputing state parties and arbitral tribunals. The contributors each have a strong background in investment arbitration, in both professional practice and academia. This commentary will be of interest to all actors involved in investment arbitrations, especially practitioners, counsels, NGOs and scholars in the fields of international law, commercial arbitration and investor-state arbitration.
Thursday, February 26, 2015
Mavroidis & Wolfe: From Sunshine to a Common Agent. The Evolving Understanding of Transparency in the WTO
Transparency obligations have undergone substantial transformations since the inception of the GATT in 1947. The paper begins by tracing the evolution of transparency principles during the WTO era. From an obligation to publish general laws affecting trade, the system now includes peer review by governments (monitoring and surveillance), and efforts to inform the public. The system is remarkable for what has been accomplished, but much remains to be done. Originally designed for a handful of developed countries, the system now provides an expanded knowledge base that benefits states, economic actors and citizens with inadequate resources to acquire information on their own. Fulfilling this emerging objective will require a stronger role for the WTO Secretariat as a "common agent" for Members. Transparency in the WTO is based on an assumption that agency matters. The evolution of the system reflects an increasingly expansive view of whose agency counts for trade policy, and therefore of what kinds of information should be available, in what form, and what use ought to be made of it. Our expectation is that the continued evolution in the multilateral understanding of agency in trade policy will be reflected in growing sophistication of WTO transparency practices.
Monday, January 19, 2015
Caron: Regulating Opacity: Shaping How Tribunals Think
This manuscript in a novel fashion looks at transparency by considering an aspect of arbitration where the opposite condition remains quite accepted; namely, the opacity of the deliberations of the arbitral tribunal. The manuscript considers how the institutional structure of arbitration shapes the decision-making process of arbitration tribunals even though that process is as a general matter conducted out of sight of the parties or the public generally. Examining only arbitral decision-making puts to one side the general political assertion that arbitration is a secret process that is suspect and instead allows an examination of a specific activity within arbitration where it is generally accepted that a degree of opacity is required in order to function effectively. A core conclusion is that the risks posed by opacity arguably are mediated significantly by a number of regulatory devices expressed in terms of procedural rules.
The manuscript proceeds in three parts. First, it examines the justification and procedural construction of the opacity granted to arbitral decision-making. It is trite to observe that tribunal deliberations are undertaken in private. Forgotten is the choice of informed parties to make arbitral decision-making opaque in this way. Second, it examines the regulation of the opacity created. If the choice to create opacity is forgotten; totally overlooked is the nuanced way in which the formal institutions of arbitration seek to regulate, and thereby moderate, this opacity. In particular, the institutional perspective employed illuminates various aspects of arbitral rules that shape the ways in which arbitral decision-making will take place. Finally, the manuscript points to the gain and challenge of a regulatory perspective. Having exposed the role that various procedural rules play in moderating the opacity placed over arbitral decision making, also exposed is the possibility that some aspects of the opacity granted could be further regulated. But the possibility of regulation begs the question of the aim of regulation and leads the academic and arbitration communities to difficult transnational legal culture questions as to the precise aim of transparency and what it is about collective decision-making that conveys integrity or raises suspicion.
Thursday, October 16, 2014
Ala'i & D'Orsi: Transparency in International Economic Relations and the Role of the WTO
The chapter describes the evolution of transparency obligations within the multilateral trading system. Beginning as obligations that were ancillary and subsidiary to the substantive provisions of market access and non-discrimination under the General Agreement on Tariffs and Trade (GATT 1947), transparency obligations became central and substantive obligations under the World Trade Organization (WTO). The transparency obligations of the WTO have had a profound impact on the internal governance of Member States in three key ways. First, transparency has facilitated trade disputes by identifying measures whose application and administration are inconsistent with the provisions of the covered agreements. Second, transparency has promoted the power of the central governments within Member States over local and provincial governments. Last, transparency requires uniformity in administration of measures within and among states to the extent possible. In conclusion, the authors ask whether transparency, in the context of the WTO, has any goal broader than that of protecting and promoting the interests of private traders, and whether increased litigation, increasing centralization and increasing uniformity promoted in the name of transparency also contribute to broader goals of good governance or development.
Monday, November 25, 2013
Bianchi & Peters: Transparency in International Law
While its importance in domestic law has long been acknowledged, transparency has until now remained largely unexplored in international law. This study of transparency issues in key areas such as international economic law, environmental law, human rights law and humanitarian law brings together new and important insights on this pressing issue. Contributors explore the framing and content of transparency in their respective fields with regard to proceedings, institutions, law-making processes and legal culture, and a selection of cross-cutting essays completes the study by examining transparency in international law-making and adjudication.
Tuesday, November 5, 2013
Donaldson & Kingsbury: The Adoption of Transparency Policies in Global Governance Institutions: Justifications, Effects, and Implications
Formal transparency policies are increasingly prevalent in global governance institutions, partially attenuating the influence in these institutions of practices of secrecy inherited from interstate diplomacy. This article assesses the incidence and specific characteristics of formal transparency policies across a select group of institutions and outlines some of the justifications given for these policies—including justifications based on the publicness of these institutions—and for the more controversial exceptions to transparency, such as the exception for deliberative materials. It examines three drivers affecting the adoption, form, and content of transparency policies and other transparency measures in these institutions: spillover from national transparency laws and policies, growth in the reach and significance of authority exercised in and through global institutions, and criticism of global institutions by influential states and nongovernmental organizations. Twelve hypotheses are proposed about the effects, for states, nonstate actors, and global governance institutions, of transparency measures—formal policies and other steps to increase transparency—in global governance institutions. Finally, the article considers some implications of transparency measures for structures of political power and authority beyond the state and for global administrative law.
Tuesday, August 13, 2013
Malatesta & Sali: The Rise of Transparency in International Arbitration
The advantages of arbitration as the main alternative means of dispute resolution are well known and undisputed. Privacy and confidentiality are among them and at the same time among the prevailing features of any arbitral proceedings. However, sometimes users have the feeling to deal with a close and too slow-growing world. The need, if not the request, for a greater accountability of the arbitral world in the whole is more and more widespread.
In this context the aim of this book is on the one hand to spur discussion and to shed new light on the traditional idea of confidentiality in international commercial arbitration (and in some other figures alike). Although this idea is sometimes founded upon sound reasons that cannot be ignored or totally set aside, it must be reconsidered by taking into account the rise of transparency. On the other hand, a specific proposal is made in order to step ahead from the current situation, with particular reference to the issue of the publication of the awards. In this respect, the main outcome is the Guidelines for the Anonymous Publication of Arbitral Awards, already adopted and experienced by the Milan Chamber. They are addressed to institutions, practitioners, scholars with the goal to favor the circulation of the awards and of the related decisions.
Monday, April 15, 2013
Wolfe: Letting the Sun Shine in at the WTO: How Transparency Brings the Trading System to Life
Without transparency, trade agreements are just words on paper. Transparency as disclosure allows economic actors and trading partners to see how rules are implanted; transparency in decision-making ensures fairness and peer review. In the first section of this paper, I discuss the logic of transparency in general and the motivation for its use in the trading system. Considerable information on WTO transparency mechanisms is available in the Minutes and annual reports of the various WTO bodies, and in the Director-General’s annual overview of the trading system, but comparative analysis is not easy. In the second section, therefore, I develop a framework in which different transparency mechanisms can be compared to each other using the metaphor of three generations in the evolution of transparency in the trading system as a means of explaining how transparency works in the WTO. For sunshine to work, at least two things must happen. Information must be made available, and Members have to use it. Probing the extent to which Members comply with their notification obligations, in the third section, and their efforts to improve the notification process, allow an assessment of their commitment to being transparent. In the fourth section I consider how WTO committees are used to ensure that Members are accountable for their commitments, including to notify. Since the committees differ, I use the metaphor of the great pyramid of the legal order to compare committees to each other. Assessment of whether these mechanisms work underpins observations in the conclusion on whether more sunshine is needed, and efforts underway to improve existing mechanisms.
Tuesday, December 11, 2012
Sackmann: Transparenz im völkerrechtlichen Investitionsschiedsverfahren
Julia Sackmann has published Transparenz im völkerrechtlichen Investitionsschiedsverfahren: Gewährleistungen der ICSID-Konvention, der UNCITRAL-Schiedsregeln sowie völker- und unionsrechtliche Maßgaben (Nomos 2012). Here's the abstract:Die Studie untersucht die Frage nach rechtlichen Vorgaben der Transparenz völkerrechtlicher Investitionsschiedsverfahren unter der ICISD-Konvention und den UNCITRAL-Schiedsregeln. Die Transparenz völkerrechtlicher Investitionsschiedsverfahren ist in den vergangen Jahren häufig Gegenstand sowohl der Analyse durch Schiedsgerichte wie auch der Debatte in juristischer Literatur und Zivilgesellschaft gewesen.
Die Diskussion konzentriert sich dabei jedoch zumeist auf die Abwägung von Vor- und Nachteilen vermehrter Verfahrenstransparenz. Das Werk erläutert die Möglichkeiten, Verfahrenstransparenz herzustellen, wie den möglichen Zugang zu Anhörungen durch Dritte und die Veröffentlichung von Verfahrensdokumenten und Schiedssprüchen durch die Parteien.
Eingehend wird behandelt, ob die in diesem Zusammenhang häufig angeführte Beteiligung von Amicus Curiae die Transparenz dieser Verfahren tatsächlich erhöht. Untersucht wird zudem, ob seitens IPbpR, EMRK oder Unionsprimärrecht ein Gebot besteht, welches die transparente Behandlung dieser Verfahren erfordert.
