This article is originally from The American Review of International Arbitration (ARIA)

PREVIEW

Investor-State Arbitration (ISA) has long been a key mechanism for resolving disputes between foreign investors and host states. As of November, 2025, 3,350 investment agreements have been signed, and 1,401 investor-State arbitration cases have been initiated.  Yet, despite the fast growing body of investment arbitration cases, traditionally conducted behind closed doors, ISA has increasingly come under scrutiny for its lack of transparency, especially in cases involving matters of significant public interest—such as environmental regulation,  public health policy,  and human rights.  The public is frustrated by the reality that decisions with major impacts on their lives and welfare are being made by an unidentified panel of lawyers in private proceedings, where ordinary people have no visibility or voice.  The growing recognition that these disputes may implicate the broader public has led to calls for greater openness in ISA proceedings.  Transparency is now widely viewed as essential to improving the legitimacy, accountability, and predictability of investor-state dispute settlement (ISDS).  Menon contends that this legitimacy gap is a consequence of ISDS’s failure to uphold foundational rule-of-law values—transparency, accountability, and consistency—due to its inheritance of procedures tailored to private commercial arbitration.

Leading the charge in this transparency movement is the European Union (EU), which has actively sought to reform the ISA system. Through instruments such as the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014), the Mauritius Convention,  the Comprehensive Economic and Trade Agreement (CETA) with Canada, and its proposed Investment Court System (ICS), the EU has introduced detailed transparency obligations.  These include requirements for public access to hearings, disclosure of relevant documents, publication of arbitral decisions, and opportunities for third-party participation. These reforms are underpinned by a normative commitment to the rule of law, democratic accountability, and the protection of public policy space within the international investment regime.

However, these transparency initiatives are not without controversy. Scholars have argued that a mechanism that grants States and foreign investors the discretion to decide whether to apply these instruments in an arbitration undermines the goal of firmly establishing transparency in investor-state dispute resolution. Furthermore, critics have pointed out that enhanced transparency may lead to unintended consequences: increased procedural costs, longer resolution timelines, exposure of sensitive commercial or political information, and diminished confidentiality protections are all potential pitfalls.  Investors, particularly those from jurisdictions with strong confidentiality norms, may be deterred by the prospect of heightened public scrutiny.  Thus, while transparency may serve broader governance objectives, it also introduces complex trade-offs with respect to procedural efficiency and fairness to the involved parties.

Against this backdrop, this paper aims to explore how transparency in ISA is conceptualized and implemented across different regions, particularly in Asia. In contrast to the EU’s institutionalized and rules-based approach, transparency reforms in Asia are far more uneven, often reflecting distinct political, economic, and cultural dynamics.  Some jurisdictions, such as Singapore and South Korea, have adopted relatively open approaches, particularly in the context of their trade agreements and institutional arbitration frameworks.  Others, including China and India, continue to emphasize confidentiality and retain significant state control over the transparency of ISA proceedings.