Transparency and Fairness: Challenges and Solutions in ICSID Arbitration Procedures

Research Article
Open access

Transparency and Fairness: Challenges and Solutions in ICSID Arbitration Procedures

Dingyu Bai 1*
  • 1 Law School, Minzu University, Beijing, China    
  • *corresponding author 2424881279@qq.com
LNEP Vol.96
ISSN (Print): 2753-7056
ISSN (Online): 2753-7048
ISBN (Print): 978-1-80590-123-5
ISBN (Online): 978-1-80590-124-2

Abstract

The issue of transparency in the arbitration procedures of the International Centre for Settlement of Investment Disputes (ICSID) has long been a contentious matter. In particular, the provisions regarding the substantive participation of arbitrators and amicus curiae have led to the impairment of the public's right to information and public interests. This article focuses on exploring whether the current procedural rule reforms and their practical applications have potential problems that undermine the legitimacy, fairness, and authority of ICSID, and also conducts an in-depth exploration of strategies to alleviate these issues. Through a comprehensive review of academic literature and a systematic analysis of typical cases such as Mobil v. Venezuela and Philip Morris v. Uruguay, it is found that the ambiguity of some procedural rules has left the arbitration process lacking in effective supervision, and both enterprises and states have significant room for maneuver in information disclosure. To this end, this paper proposes that ICSID needs to further refine its existing legal framework, clearly define the participation standards and boundaries of responsibilities for arbitrators and amicus curiae. At the same time, an effective incentive mechanism should be established to provide policy support and reputation incentives to enterprises and governments that actively fulfill their transparency obligations. In this way, the negative impact of insufficient transparency on the fairness of arbitration can be reduced, and the healthy development of the international investment arbitration system can be promoted.

Keywords:

ICSID, transparency, international arbitration, amicus curiae

Bai,D. (2025). Transparency and Fairness: Challenges and Solutions in ICSID Arbitration Procedures. Lecture Notes in Education Psychology and Public Media,96,65-73.
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References

[1]. Ma Hui. A Study on the System of International Investment Court [D]. Jilin University, 2023.

[2]. Huang Yi. A Study on the Perfection of the Application of the Prudential Exception Clause in International Investment Law [D]. East China University of Political Science and Law, 2023.

[3]. Shaw, Gary J. "The 2022 ICSID Rules: A Leap Toward Greater Transparency in ICSID Arbitration." ICSID Review - Foreign Investment Law Journal 38, no. 1 (2023): 54-71. https://doi.org/10.1093/icsidreview/siac016.

[4]. Smith, David. 2018. “Transparency Rules and Arbitrators' Duties in ICSID: Implications for Fairness.” Journal of International Dispute Settlement, 9(2): 345 - 368.

[5]. Jones, Sarah. 2019. “The Impact of Transparency on Arbitrators' Independence in ICSID: A Threat to Fairness?” Arbitration International, 35(1): 45 - 67.

[6]. Brown, Emily. 2020. “Amicus Curiae in ICSID Arbitration: A Catalyst for Fairness under Transparency Rules.” International Law Review, 22(3): 234 - 256.

[7]. Tian Haoyu. A Study on the Mediation Mechanism of the International Centre for Settlement of Investment Disputes [D]. Guangxi Minzu University, 2023.

[8]. Sun Nanshen. The Application and Development of the Principle of Transparency in International Investment Arbitration [J]. Research on the Modernization of Rule of Law, 2022, 6(05): 68-83.

[9]. Xue Dan. A Study on the Mediation Mechanism in the Settlement of International Investment Disputes [D]. Guizhou University, 2022.

[10]. Asteriti, Alessandra, and Christian J. Tams. "Transparency and Representation of the Public Interest in Investment Treaty Arbitration." SSRN Electronic Journal, June 1, 2010. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618843.

[11]. Bown C P, Hoekman B M. WTO dispute settlement and the missing developing country cases: engaging the private sector[J]. Journal of International Economic Law, 2005, 8(4): 861-890.

[12]. Green, Michael. 2021. “Regulating Amicus Curiae Participation in ICSID: A Path to Ensure Fairness.” Journal of World Investment & Trade, 23(4): 567 - 589.

[13]. Black, John. 2023. “The Double - Edged Sword of Document Disclosure in ICSID Transparency Rules: Implications for Fairness.” Journal of International Investment Law, 15(2): 123 - 145.

[14]. Wong, Jarrod, and Jason Yackee. "The 2006 Procedural and Transparency-Related Amendments to the ICSID Arbitration Rules: Model Intentions, Moderate Proposals, and Modest Returns." In Yearbook on International Investment Law and Policy, edited by Karl Sauvant and Yulia Andreeva, 1–20. Oxford: Oxford University Press, 2010. https://scholarlycommons.pacific.edu/facultybooks/62/.

[15]. Dai Qinyu. Study on Transparency Provisions in the Arbitration Rules for International Investment Disputes[D]. Guizhou University, 2019. https://m.zhangqiaokeyan.com/academic-degree-domestic_mphd_thesis/020311829132.html.

[16]. Jin Huihua. International Investment and Environmental Protection: Thoughts Triggered by the Case of Metalclad Corporation v. the Government of Mexico [J]. Journal of Fujian Institute of Political Science and Law, 2005, (03): 32-35.

[17]. Liu Mengyin. Study on the Disclosure Obligation of Third-Party Funding under the Revised ICSID Arbitration Rules[D]. Zhongnan University of Economics and Law, 2021.

[18]. Zhao Zhiqiang. Research on the Transparency Reform of International Investment Dispute Arbitration[D]. Shandong University, 2016.

Cite this article

Bai,D. (2025). Transparency and Fairness: Challenges and Solutions in ICSID Arbitration Procedures. Lecture Notes in Education Psychology and Public Media,96,65-73.

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About volume

Volume title: Proceeding of ICGPSH 2025 Symposium: International Relations and Global Governance

ISBN：978-1-80590-123-5(Print) / 978-1-80590-124-2(Online)
Editor：Enrique Mallen, Ifa Khan
Conference website: https://www.icgpsh.org/Boston.html
Conference date: 18 May 2025
Series: Lecture Notes in Education Psychology and Public Media
Volume number: Vol.96
ISSN：2753-7048(Print) / 2753-7056(Online)

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References

[1]. Ma Hui. A Study on the System of International Investment Court [D]. Jilin University, 2023.

[2]. Huang Yi. A Study on the Perfection of the Application of the Prudential Exception Clause in International Investment Law [D]. East China University of Political Science and Law, 2023.

[3]. Shaw, Gary J. "The 2022 ICSID Rules: A Leap Toward Greater Transparency in ICSID Arbitration." ICSID Review - Foreign Investment Law Journal 38, no. 1 (2023): 54-71. https://doi.org/10.1093/icsidreview/siac016.

[4]. Smith, David. 2018. “Transparency Rules and Arbitrators' Duties in ICSID: Implications for Fairness.” Journal of International Dispute Settlement, 9(2): 345 - 368.

[5]. Jones, Sarah. 2019. “The Impact of Transparency on Arbitrators' Independence in ICSID: A Threat to Fairness?” Arbitration International, 35(1): 45 - 67.

[6]. Brown, Emily. 2020. “Amicus Curiae in ICSID Arbitration: A Catalyst for Fairness under Transparency Rules.” International Law Review, 22(3): 234 - 256.

[7]. Tian Haoyu. A Study on the Mediation Mechanism of the International Centre for Settlement of Investment Disputes [D]. Guangxi Minzu University, 2023.

[8]. Sun Nanshen. The Application and Development of the Principle of Transparency in International Investment Arbitration [J]. Research on the Modernization of Rule of Law, 2022, 6(05): 68-83.

[9]. Xue Dan. A Study on the Mediation Mechanism in the Settlement of International Investment Disputes [D]. Guizhou University, 2022.

[10]. Asteriti, Alessandra, and Christian J. Tams. "Transparency and Representation of the Public Interest in Investment Treaty Arbitration." SSRN Electronic Journal, June 1, 2010. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1618843.

[11]. Bown C P, Hoekman B M. WTO dispute settlement and the missing developing country cases: engaging the private sector[J]. Journal of International Economic Law, 2005, 8(4): 861-890.

[12]. Green, Michael. 2021. “Regulating Amicus Curiae Participation in ICSID: A Path to Ensure Fairness.” Journal of World Investment & Trade, 23(4): 567 - 589.

[13]. Black, John. 2023. “The Double - Edged Sword of Document Disclosure in ICSID Transparency Rules: Implications for Fairness.” Journal of International Investment Law, 15(2): 123 - 145.

[14]. Wong, Jarrod, and Jason Yackee. "The 2006 Procedural and Transparency-Related Amendments to the ICSID Arbitration Rules: Model Intentions, Moderate Proposals, and Modest Returns." In Yearbook on International Investment Law and Policy, edited by Karl Sauvant and Yulia Andreeva, 1–20. Oxford: Oxford University Press, 2010. https://scholarlycommons.pacific.edu/facultybooks/62/.

[15]. Dai Qinyu. Study on Transparency Provisions in the Arbitration Rules for International Investment Disputes[D]. Guizhou University, 2019. https://m.zhangqiaokeyan.com/academic-degree-domestic_mphd_thesis/020311829132.html.

[16]. Jin Huihua. International Investment and Environmental Protection: Thoughts Triggered by the Case of Metalclad Corporation v. the Government of Mexico [J]. Journal of Fujian Institute of Political Science and Law, 2005, (03): 32-35.

[17]. Liu Mengyin. Study on the Disclosure Obligation of Third-Party Funding under the Revised ICSID Arbitration Rules[D]. Zhongnan University of Economics and Law, 2021.

[18]. Zhao Zhiqiang. Research on the Transparency Reform of International Investment Dispute Arbitration[D]. Shandong University, 2016.

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