 Well done for the organization for putting together this wonderful conference. This is the last panel and it is Saturday afternoon after all. So we'll try to make this as interactive and as lively as possible and this is why we have a debate. And the motion that we are debating is, and I quote here, increasing transparency in commercial investment arbitration a welcome reform question mark. So we have two debaters that will be debating for the motion and two debaters that will be debating against the motion. I will be taking a poll in just a minute to see what your current gut feeling is, whether you're rather leading for or against. And then we will hear the debaters and then we will do the same at the end and I will ask you again to vote with your hands for and against and we'll see whether the debaters will actually potentially sway you either way. But before I take the poll, let me just very briefly tell you how we understand this motion. Transparency is a buzzword. It's really, everyone talks about transparency at the moment. In the previous panels actually transparency came up quite often when we talked about the European Commission's proposal on an investment court that this would lead to a more transparent system. There is of course the transparency rules, the ancestral transparency rules, and the Mauritius Convention. So transparency is a buzzword, but what do we actually mean when we talk about transparency? Now let's just remind us what transparency means. Transparency in the first common sense of the word means easy to see through, transparent. And that metaphorically also means that something becomes more visible and therefore potentially more easier to understand. And so in the context of international arbitration, transparency is very often used to allow more information to circulate, a flow of information. And that flow of information is between the players of international arbitration on the one hand and everyone else. Now who do I meet by player of international arbitration? There are of course the parties, their legal representatives, the arbitrators, the institutions, the insiders, so to speak. And then there are the outsiders, if I may say that way, which are the NGOs, non-discuting parties, the public as a whole. And the information that flows between the insiders and the outsiders increases transparency. And that flow of information can be two ways. It can either go outbound from the insiders to the outsiders or inbound the other way around. Now just a couple of examples of outbound transparency, information that flows from the players of international arbitration outside. First of all of course is on a specific dispute is if it's clear that it happens, that it's registered, that everyone knows X has a dispute against Y and potentially even here are the facts. That is would be a transparent system. And we of course all think here about the Yonsei Transparency Rules that have inaugurated a register where information about cases under these transparency rules is publicly available. But also, and maybe this is something that we don't think about so much, transparency in the sense of dispute resolution system as a whole. Information about who senses arbitrator, how many challenges are there. And there are of course a lot of initiatives by institutions, the ICC very prominently has now a register where you can see who is sitting as arbitrator under the ICC cases if parties agree to put that up. And this is outbound transparency. And then we can also think about inbound transparency which is information flowing from the outside to the tribunal. And here of course a good example is Amicus Curie, third party submissions to the tribunal. And again the information that flows to the tribunal is arguably to get a better understanding, be more transparent and so that third parties Amicus Curie can actually have a say in the dispute before the arbitral torpedo. So I just wanted to sort of give you a very sort of broad brush of potential examples on how we understand transparency and that is in a very broad sense, both commercial arbitration and investment arbitration. And now think again about the motion here in Contabue which is, is the increasing transparency in commercial and investment arbitration a welcome reform. So could I please ask those who think that it is yes, it is a welcome reform to put up your hands. And now let's do the counter test. Can I ask those who are against to put up your hands? Commercial. Yes, absolutely right. So I'm going to ask the question first of all generally. And then break it down. But I think for the general question there was a clear leaning towards four. So note that in terms of your starting block. Now absolutely right. We're going to break it down into commercial and arbitration. Let's start with commercial first. Who thinks that increasing transparency is a good thing in commercial arbitration? That's already less. Let's do the counter test against. I think that's slightly more, but just about slightly more. And now in investment arbitration, who thinks that increasing transparency is a good thing? I think that's a very clear majority. I don't think we have to put up our hands together. But just close against. I'll be very brief. I'll just put them in the order in which they're going to argue. So for the motion that commercial arbitration requires more transparency, we'll have a gallery of the scale from the ICC that there's a fairly good, good match. A gallery that is a council at the ICC and leads the Swiss Italian team there. And then against the motion that commercial arbitration warrants more transparency is a partner at Deckard and the co-chair of Deckard International arbitration practice, basing his time in Washington and London. And then we move to investment arbitration. And we have here arguing for the motion, Samantha Rao, who's with Devil Boys and Clinton, who's a New York bar and has decreased in English and French laws, a very international mixture here. She just came recently back from New York to London. And she's arguing for the motion. And then we'll have against the motion in investment arbitration, which is power, who's a partner with Clyde and Co. So with that, a good debate. It will be 10 minutes each, and I will be strict on time. Thank you very much, Maxie, and thank you for inviting me here. I'm happy to say for once that my opinions actually match with the current trend of the ICC. And it's also Wendy Meis, who's vice president of the court, may confirm it. So my job is not going to be incredibly tough because I saw that many people are already in favor of transference and commercial arbitration. But I will basically touch two main points, an external dimension of transparency and an institutional dimension of transparency. And within the external dimension, I will consider whether or not it's a good choice to apply the use of transparency to commercial arbitration cases if there is any difference between investment arbitration and commercial arbitration as far as transparency is concerned. Why should awards be available and whether or not Nico's courier would be a good option for commercial arbitrage agreements. And for the institutional transparency, I will mention two ICC, let's say, practices that are leading to a broader transparency of the ICC decisions, both at the court and at the secretariat levels. So should the usage of rules and transparency be applied to commercial arbitration? As we all know, the usage of rules were established to create a more transparent regime for investor state arbitrations. However, even if people were against the transparency in commercial arbitration, we'll tell you that there is a problem of confidentiality and of sensitive information in commercial arbitration cases. There is a very nice provision in the usage of rules, Article 7, which states that there might be exceptions to this transparency, especially as far as confidential or protective information is concerned. And Article 7, too, states that confidentiality or protective information consists of confidential business information, that is protected against being made available to the public under any law or rules that are termed by the auditor to be not to be applicable to disclosure of such information, which means that if... I mean, in principle, there could be the application of these new rules of transparency even to commercial arbitration cases. And the parties, of course, can, in their negotiations, include confidentiality clauses, specifying what kind of business information they would like to keep confidential. As far as the differences between investor state and commercial arbitration is concerned, I attended a conference a few days ago in Paris, and it was interesting because there was a very prominent law professor saying that his function changes when he acts as arbitrator in commercial cases and when he acts as arbitrator in investor state cases. He says that basically when he is president of an arbitration bureau in investor state cases, he feels that he's building a body of law that protects not only commercial and business interests, but it goes behind that and protects also social, environmental interests and human rights. Whereas when he does that, when he sits in commercial arbitration journals, that is not the case and he's just there to settle a dispute between commercial actors. Now, I am bringing some statistics from the ICC. 10% of the cases in 2015 involved a state or a state entity. Now, we're not talking about investor state cases, we're not talking about VITs provided for an ICC close in the treaty. We're talking about contracts where a contract leading to disputes where a state or a state entity is involved. Now, when this is the case and the state is involved, there is of course a public interest, especially because usually when the state is involved in ICC arbitration, we are talking about oil and gas disputes, we are talking about telecommunication disputes, we are talking about disputes that of course have also a kind of public interest. And when we see, for instance, the public concern involved in ICC arbitration, we may think for instance with a compensation owed by the state that compensation will be paid by the public funds. And ultimately, these public funds are basically tax payers funds. When there is an allegation of state in this conduct and corruption, that's a public interest as well because it doesn't go only against the government but it goes against the state more in general. And then of course there is the use of public authority in this kind of dispute. So we might consider that public interests are a stake in international commercial arbitrations as well. I'm not saying that they are involved in all commercial arbitrations but in those arbitrations that I just mentioned where state or state entity is directly involved, that public concern is involved as well. So the third point is why the awards should be available. First of all, the question is should all the awards be available? And the answer is of course no. Some of them they are not interesting but some of them they are... We can say that. And some of them they are not they are not useful for a development of what we call the arbitration law. However, and there as well I have opinions from very experienced practitioners who say sometimes we are so happy to find for instance an article mentioning many awards from the ICC mentioning many awards on Fox major close or hardship close because it gives the arbitrators where eventually the judges on commercial disputes gives them the possibility to have a broader interpretation of that close under a certain specific applicable law. So it's interesting not only for academics, students and so on but it might be also interesting for practitioners and ultimately for arbitrators to have to judge these disputes. D'Amico Scurria. D'Amico Scurria is a little bit more difficult I think because in commercial cases it's difficult for a third party to know that there actually is a dispute going on. The dispute originally is not publicly available so it's difficult for a third party to intervene and to send an Amico Scurria. However, there is a provision in the ICC rules that might be interpreted as an opening dose to Amico Scurria which is if I'm not wrong, I'm sorry it's article 25.3 that provides allows the Abitual Tribunal to hear not only the parties involved in the arbitration proceedings but any party that the Abitual Tribunal might miss if you're helpful for this settlement of the dispute. So I'm not saying that this has been used by Abitual Tribunals to invoke their party on this Scurria brief but it might be an option of course. We had a few cases at the ICC where either the Abitual Tribunals asked for an external opinion to institutions especially in case of antitrust law and that institution is the European Commission. Now the Amico Scurria were not mentioned in the final award the Amico Scurria were not used as a basis for the decision of the Abitual Tribunal but of course it was a good interpretative tool for the Abitual Tribunal to find the decision. As far as the international institutional transparency is concerned I will just mention you two rules. The first one is 11-4 at the ICC rules. Now the 11-4 article provided before that no decisions of the court or actually the reasons of the decisions of the court were not publicly available so the parties were not able to ask for decisions. However, in the 2012 rules when the rules were modified the article 11-4 became different so it states that the decisions of the court as to the appointment, confirmation, challenge or replacement of an arbitrator shall be final. But the wording and the reasons for such decisions shall not be communicated. It does not exist anymore. How does it work? It worked that for instance the parties when they know that there is a decision taken by the court on these specific issues may ask the secretariat to provide the reasons of such a decision before the decision actually takes place. And we give the decision of course we are requesting to do so by the parties. The second and last point that I want to deal with is the name of the arbitrators. Now that was a very kind of controversial measure that was undertaken by the ICC and I think that day after day the people are actually accepting the measure because it's important for the parties who are out there to know how many cases for instance a person is dealing with as arbitrator. Whether this person is acting as president of an arbitrage of below 20 cases or 40 cases or 50 cases because it gives you an impression and a picture of the availability of that person. The second point is the thought that the arbitrage word has been dominated by men and very I'm saying something very inappropriate but very old people for too many decades showing... I'm speaking about 90 years old. In an institution such as the ICC showing that we're actually nominating or appointing or confirming arbitrators who are much younger and also who belong to the female capillary is very important for the public out there. So these are measures, transparency measures that the institution adopts and I'm sure that they are good inputs for other institutions in general for all actors of the arbitrage word. Thank you. Right, so Maxi is going to make sure that I do this in 10 minutes but before I start I applaud Wendy for again reminding everybody about the importance of diversity and particularly gender diversity but I will also make a plea for ethnic diversity and when we have achieved ethnic and gender diversity we have really made significant progress. We've made a lot of progress in the world of gender diversity in that area but not so much in the world of ethnic diversity and here's why this is important. When you look around the room and you look at all the people from the so-called developing world, less developed countries, third world countries, guess what, I'm not less developed anything, I'm not third world anything, I come from the majority world because those who come from those parts of the world are in fact the majority and within the majority world the majority are women and so Wendy, I hope you'll join me in supporting this idea that we need both gender diversity as well as ethnic diversity on panels and as part of the Artful Forum. The second thing that I will do is give you a lesson in advocacy. Not a great lesson but a small and important one and that is the first thing you do when you are in rebuttal is to address the points that have just been made by your opponent and the point that my opponent has made while very eloquent are completely wrong and they are wrong and they are wrong I tell you because what he says is classically the tail wagging the dog and the first point that he mentioned to you 10% of cases involve states. Well 90% of the cases don't involve states should we therefore impose institutional reform should we therefore impose legal reform in order to accommodate those 10% of cases that involve states and those 10% of cases that are in the world of commercial arbitration in commercial arbitration these are typically disputes involving non-payment for bananas for the military yes they might involve an oil concession yes they might involve a power plant but they do not involve state responsibility and that is the big differentiation that militates against transparency when it comes to international commercial arbitration now on that point I hope my dear friend you will concede look I expected that and on the second point I will use your own words should awards be published all awards are not available because they are not interesting well for the small minority that are interesting should the tail be wagging the dog do you now concede my good friend not okay well what difference does it make to an arbitrator sitting in a dispute involving Chinese law and application of force majeure to know what the application of the principle of force majeure was under Bangladesh or French law what educational purpose is to be served for the arbitrator zero more importantly what about precedent there is no precedent in international arbitration so why do we need the publication of awards are you now convinced my good friend not at all so we have another step to go now transparency is a very very big word for some it's a policy for others a principle for others a rule like the ICC for some it's an aspiration and for others it is a sin but at the end of the day why do we talk about transparency first of all because anybody a rule maker a government any institution that uses the word transparency uses it to legitimize what it is doing without actually talking about what transparency really means and so I ask you to think about that the hypocrisy that is often that often underlies the proposition that I am being transparent but there are two other reasons why transparency becomes an important part of the discussion and while I saw that 50% of the room were against transparency in commercial arbitration and 50% for and my good friend refuses to concede I will say this transparency it's very hard to debate against transparency why because it is in human nature to want to know to be curious to draw back the curtain and look behind to walk into the cave that is dark it is human nature why after all are you here to be transparent others because you want to peel back the curtain and see what is behind in the world of arbitration so there is in arguing against transparency argument I am arguing against human instinct but there is also another instinct and it is this and I will read to you from give you a quote from Douglas Horton from 1891 it's an American preacher change occurs in direct proportion to dissatisfaction but dissatisfaction never changes and I will add to the elephants of Mr Horton by saying and lawyers are amongst the most dissatisfied and so our curiosity that we bring to the table that calls for transparency married with our general state of being of dissatisfaction makes it very difficult to argue against transparency notwithstanding the brilliant points I made earlier and the fact that my good friend will not concede yes I ask you to do the following for me each and every one put away your blackberries and your phones close your laptops put down your pens and close your eyes everyone you too Mark close your eyes all of you close your eyes you haven't closed your eyes and as you think in the quiet of your mind I ask you to consider the following proposition that is fundamental in evaluating the question of transparency and commercial arbitration and it is this party autonomy you may now open your eyes party autonomy party and autonomy the gateway to the world of international commercial arbitration the fundamental preset the fundamental principle that you and I can reach agreement about how we are going to resolve our dispute the fundamental gateway that we will reflect in our agreement the exclusion in the first instance of the public fora in which dispute resolution takes place that is the publicly funded courts and we will decide on the procedural mechanism pursuant to which our dispute will be resolved and as you think about party autonomy I ask you also to consider another proposition and it is this we have through our legalistic and regulatory mindsets reflecting our dissatisfaction our constancy of dissatisfaction made international arbitration an end in and of itself it is not it is a means to an end consider that my friends it is a means to the resolution of a dispute between two or more consenting parties who choose to be in that forum for particular reasons and they choose to be in that forum because two commercial parties may not want a competitor to know that they have a dispute 90% or more of disputes are smaller disputes for which there is no public incentive or purpose or interest to be forwarded or advanced as a result of greater transparency so again we have the tail wagging the dog and I have put to you the following that transparency needs to be looked at in four different contexts first of all organizational transparency at the end of the day unless the organizations, the institutions that are the creators of the rules and the administrators of the rules if they are not more transparent so transparency yes I will concede to my good friend who represents one of the institutions that has made great steps in advancing transparency that institutional transparency is important because that does create greater clarity for the users of the system there is the notion of arbitrator transparency arbitrator intelligence and other mechanisms out there to try and get out into the world how it is that arbitrators think how it is that arbitrators decide why they decide in a particular way to use artificial intelligence and apply it to arbitrator decision making you know what I disagree let the market decide I think you disagree in like 10 seconds I will and so unfortunately I don't have time to talk about the transparency of proceedings but in the course of the debate that I think will follow hopefully will make some of my points there or with respect to legal transparency but at the end of the day if you want to destroy international commercial arbitration yeah stick with your vote stick with your vote for greater transparency because by doing so you will be committing the cardinal sin and that cardinal sin is you will be destroying party autonomy and you will be destroying the most fundamental element that underlies our human instinct and that is freedom of choice thank you maybe also some hypnosis which is unfair I'm not going to ask if this being a lesson of advocacy if you actually believe in what we said but we will now turn to investor state arbitration and we will start with the motion for transparency and the floor is now a review of the summata thank you and thank you so much for having me here today congratulations on organizing what has been a really fantastic conference increasing transparency in investment treaty arbitration is it welcome well you've all voted with your hands already yes it is welcome and it's not only welcome it is necessary and this is why this is just a small handful of media reports that have come out in the last few years criticising ISDS and the key word that screams up from all of these reports is secret rightly or wrongly there is a real concern that ISDS is an illegitimate system of resolving disputes because decisions that affect millions of people and the public verse are being made behind closed doors and if we want to combat this concern the only way to do so is by increasing transparency and not only increasing transparency by increasing transparency transparently so transparency squared if you will and I'll come back to what that means but more than that ISDS is a system of laws it is a system that applies laws and it is a system that creates law and as such it is going to be legitimate it needs to respect the rule of law and legal transparency as we all know from our constitutional law classes is an absolutely fundamental tenet of what the rule of law means so before moving on to this in a little bit more substance I've done a sort of brief survey of the transparency measures that are out there at the moment and you'll see down the site that there are two categories there's the disclosure, the outward flow of information to the dots, maxis terminology and participation, the inward flow the formal rules, the formal positions under the rules and there's also the discretionary party agreement positions that can be adopted and favourite transparency as well and what I think this slide shows us is that transparency is real and it's good to stay and we've come a long way from the first exit dispute holiday in Morocco in which the decisions that were rendered remain unpublished to this day so transparency is here, is it welcome, is it necessary and the answer is yes and I'm just going to walk you through five reasons why that is the case and the first is, well it's a fundamental tenet of the rule of law I've already touched on this, we've come a long way from holidays in Morocco not only in terms of the transparency measures that are now part of the system but also in terms of the substance of the disputes that have been decided within the investor state dispute resolution system in the last few years we've seen cases concerning the emergency measures that Argentina adopted to combat the financial meltdown in the early 20s we've seen in cases concerning public health measures adopted in relation to cigarette packaging we've seen cases concerning environmental damage to the Amazon rainforest and we also have the current NAFTA challenge which is suspended now over the Keystone pipeline in the United States of America and even putting that substance to one side every award that is rendered by an SDS tribunal has the potential to affect the public purse the UCOS award was worth $50 billion before it was set aside and that is money that is coming from the taxpayer's pocket so we have issues with real public concern and we have literally billions of dollars at stake we are all affected by the system we are all stakeholders in the system not at least because we're all citizens of the states that signed up to it so that gives us all the right to know what's going on and to be able to affect what's going on by participating in the system second, SDS is a system that creates law and I just want to quote Jan Halston here who said, it is pointless to resist the observation that precedents generate norms of international law it is a fact of life before international courts and tribunals and as all of you know we associate it with international disputes practice the first thing we do when we are faced with a new dispute or when we're faced with the interpretation of a norm under the system is to go and look at how other people have treated it how other people have decided it and let's not forget that the dispute resolution provisions of bilateral investment treaties are just one part of a much broader system ISDS in its full realised glory creates a supranational body of norms to regulate sovereign conduct it is forward looking it is not just ex post flat in dispute resolution and it can only do that, it can only fulfil that promise if the decisions that are being made that interpret those norms are made public and actually we've gone much beyond that recently with state county claims and with defences for public policy norms such as corruption we're not just talking about norms for state conduct we're talking about norms for investor conduct too third a fully transparent ISDS system creates certainty, predictability and equality before the law we need to see these decisions to know what they say to be able to adopt or to adapt our behaviour according in this relates back to the previous point but by having a fully transparent system we also create pressure moving forward for tribunals to follow previous decisions unless there is good reason to do otherwise that is how a system of precedent works and it ensures that the decisions will be consistent that the parties that are subject to this dispute resolution process are treated equally like treated as like and that when you are before one of these tribunals you have some sense of which way the decision is going to go that allows us all to create that cost benefit analysis of whether to even bring one of these cases in the first place number four, we get better decisions in two ways and this goes back to the information in the inward blow of information the inward blow of information, increased participation allows bodies and individuals with relevant expertise to provide information and perspective that is relevant to the decisions that these tribunals are making and a great example of this is the Philip Morris case where the world's health organisation is allowed to participate as activists and the tribunal in Mackey's not only that the WHO would be able to assist them in reaching a better decision but also that the decision that they ultimately reached would be more legitimate in the eyes of the public because they are taking these perspectives into account and then there's also the outward blow of information tribunals who know that the world is watching are under more pressure to get their decision right to get it right to make sure that it's well reasoned and I think Stephen Schull had something very relevant to say on this when the arbitrators know that the world will read and particularly assess their words they are likely to put more thought and time into how they reason their decisions they are also more likely to subject the content of their reward to the test of whether the reasons can stand up to sophisticated debate finally and I'm going to end where I started we've heard today from Mr Derran through all of the other panels that we're currently facing a huge backlash against ISDS it is no overstatement to say that the system is under threat and a huge part of that is a concern that there is insufficient transparency now I will say here that I agree that a lot of this is based on this information so I was preparing for today I actually read a Guardian article that cited the ExxonMobil Canada NAFTA case as an example of one of these secret tribunal decisions now I'm also an associate working on that case at Double Boys and I must have spent about 100 hours redacting submissions transcripts, decisions, procedural orders because literally everything was published on the Canadian Government's website there's a huge amount of conspiracy concerning that proceeding and I'm sure you're all now really excited about your future practice so yeah, this misinformation are there and frankly the media has been quite irresponsible in the way that this has all been reported but isn't the answer to that and actually it's the only answer that I can think of to be more transparent and not only to be more transparent but to educate the public about what we have done to address their concerns and that requires much more than just publishing decisions on the Exxon website or on any other website that us eggheads visit on a regular basis but that nobody else has any idea exists and so that's what I mean when I say we have to because that is the only way that we are going to rescue the system from itself and I think I did that within 10 minutes I'm going to increase transparency in a transparent way now, last but certainly not least Lee's Richard and who's then against the motion of transparency in the rest of state arbitration and you have an uphill battle on the paper Good afternoon ladies and gentlemen I've been asked to oppose the motion that increasing transparency in investment arbitration is a welcome reform this seems at first glance to be a difficult task and it seems a lot more difficult after I've seen the hands against me indeed numerous articles and journals which I've read refer to it as self-evident that investment arbitration requires increased transparency however my education at this very university taught me to question points which people say are self-evident in fact while some of the recent reforms to increase transparency in investment arbitration are to be welcome some go too far certainly I would suggest that there is no justification for any more transparency that would deprive the process of its unique character and operate as a barrier to investment arbitration by its nature is not transparent while international arbitration differs from seat to seat from rules to rules some defining constants can be identified firstly arbitration is a private process between the parties to the arbitration agreement or the treaty third parties generally cannot participate in the arbitration the ground from that is confidentiality which is recognized to a greater or lesser extent in most systems and rules if the process is private the parties should be able to keep proceedings and awards confidential finally party autonomy allows the parties to choose a flexible procedure suited to their needs which can and should be speedier and less costly than national courts I say can and should therefore if transparency as a concept permits public attendance at hearings the publicity of awards and submissions and third parties to join in and or contribute to the proceedings then transparency makes inroads into the essential nature of international arbitration it's logical that such inroads should only go so far as is reasonably necessary to achieve legitimate goals to go any further would be to change the essential nature of international arbitration this is not an academic concern parties choose to use international arbitration because of its nature in particular users see confidentiality as a highly important characteristic moreover the involvement of third parties in an arbitration would inevitably cause delay and increase costs ladies and gentlemen the system that we already have already offers sufficient transparency as you've seen from Samantha's presentation the key rules for investment arbitration like the ICSID rules and the revised OMSI trial rules provide the information about the proceedings including awards is publicly available interested third parties may become involved in the arbitration usually via amicus cura briefs and some rules such as the OMSI trial transparency rules even provide for submissions and evidence to be publicly available and for hearings to take place in public in addition most rules and the IBA guidelines on conflicts of interest in international arbitration require arbitrators to be impartial and unbiased require disclosure of potential conflicts of interest and allow parties to challenge the appointment of arbitrators for those reasons ladies and gentlemen I would suggest that any moves to increase transparency in investment arbitration would not be welcome but have we gone too far already has the recent trend for increased transparency in investment arbitration culminating in those revised OMSI trial rules in the Mauritius Convention being a welcome innovation let's consider the justifications for transparency with the critical eye of a user of investment arbitration and see whether those justifications stack up and if they do whether the measures already adopted go only so far as is reasonably necessary to achieve those legitimate goals the first proposal is that transparency is essential part of the rule of law that sounds like a trite point justice must be done and seem to be done however it's a sweeping statement which from a practical point of view means nothing in itself transparency of judicial proceedings became an accepted part of the rule of law to ensure that judges who were originally the monarch's representatives and an emanation of state power did not abuse that power which could involve the loss of life, liberty and property in contrast arbitration is a private dispute resolution mechanism the parties have chosen it precisely to extricate the dispute from national courts and the very judges whose power that principle was designed to curtail I don't think it can be seriously argued the international commercial arbitration is an affront to the rule of law simply because it lacks any meaningful degree of transparency I'd suggest the same is true with investor state arbitrations as I mentioned earlier the IBA guidelines and most institutional rules provide sufficient protection for the parties from biased arbitrators second proposition transparency is necessary to encourage public confidence in the system as Samantha has said this is currently the rallying call of those proposing more transparency in investment arbitrations articles in the legal and the general media complain of secret tribunals composed of a small band of elite specialists conspiring with the forces of global capitalism to undermine democracy by imposing awards on states via TPP, TTIFTA does that sound familiar ladies and gentlemen well to me it sounds disturbingly close to the Daily Mail's rantathon about an elitist band of unelected judges trying to thwart the public's will on Brexit is there really a lack of public confidence in investment arbitration I'm yet to meet one businessman or woman let alone a member of the public at large who's expressed any concern about the openness in investment arbitration for me I think public concern is probably that's being expressed by NGOs by pressure groups and by academics I'll turn to whether those concerns are legitimate just now but even if we accept that those concerns are legitimate public confidence in investment arbitration can and I agree with Samantha here be achieved by educating the public on how the system works and how it guarantees fairness it does not require new rules which can bring with them detrimental side effects propositions three and four can be taken together because they're essentially two sides of the same coin the first is that investment arbitration concerns proceedings directed against state actions undertaken for the public good and the second is that the consequence of the arbitration can be damages payable by the state which impacts on state budgets which impacts on the public but undoubtedly those concerns justify a degree of increased transparency but those points don't imply that the tribunal in an investment arbitration should be treated like a democratically elected government tribunals don't exist by the will of the people they exist by the will of the parties to the arbitration agreement or the treaty they don't make law they don't make policy decisions at a theoretical level I'd submit that there's no justification for demanding public scrutiny of their dealings but moreover just because a state is involved in a commercial matter doesn't mean that there has to be full public scrutiny members of the public and NDOs don't get to sit in on negotiations between a state and a foreign investor about for example the construction of a gas pipeline they don't get to make suggestions as to how protections of the national interest or human rights could be included in the contract which is ultimately agreed similarly there's little openness about the minutiae of negotiating a bi or multilateral treaty why then should there be public access to legal proceedings about those agreements or treaties it may be that the public has an interest in knowing about a state's decision to nationalise an investment for the life but that can and should be addressed at a domestic political level or in the national courts at the time the decision is made the public's interest in the disputes which arises as a result of that decision surely extends only to publication of the award and that way they know what has been decided and usually why it seems to me that the public is in an analogous position to the shareholders of a company that has been expropriated by a state both shareholders have lost out some money but they don't have a right to join in the arbitration to make submissions and have their say why should the members of the public of the respondent state have that right there's no real practical justification for allowing public access to proceedings amicus curio briefs or join-down the state can and must be trusted to put forward its best arguments and proceedings the same way as any other party if they fail to do so then the NGOs and members of the public can take action against the state domestically proposition 5 transparency assisted development of international law that's a law principle but really should the participants of investment arbitration and in particular the investor who has had its assets taken away by state action have to bear the additional cost time and loss of confidentiality which transparency causes in order to achieve what is fundamentally an academic concern even if this is a legitimate justification for transparency anyway surely it can be achieved simply by publishing the awards proposition 6 transparency ensures the quality of arbitration decisions as we've heard maybe perhaps it does I would suggest though that a better guarantee of the quality of awards are the existing provisions for institutional scrutiny and for challenging awards for example ICSID has an inbuilt annulment procedure the New York Convention enables enforcement of an award to be challenged on various grounds and ICC of ministered awards are scrutinized by the ICC court in any event does this justify the degree of transparency that we have now again I would suggest this concern can be met simply by publishing the awards and finally human rights issues are involved or might be involved this is what we've heard a state might say that it's action which is the subject matter of the arbitration is justified to protect human rights but just because human rights is involved it doesn't justify third party involvement in the arbitration the question the arbitral tribunal is asked is not whether the state is right or wrong to try and achieve that stated goal or even whether it has the power or the ability to do so the tribunal is merely being asked to determine whether investor has been afforded protection against the consequences of that action and therefore whether it's entitled to compensation again the interest of the public NGOs and pressure groups as regards human rights in this context is justified by the right to lobby campaign and vote the state can perfectly well justify actions to the tribunal by reference to human rights without the need for third party intervention and finally even if this is a legitimate concern permitting third party involvement it doesn't justify blanket rules which erode privacy and confidentiality third party participation should be limited to situations where the tribunal finds that human rights issues are engaged by the dispute before it and that they require the assistance of the third party in order to understand the issue and to determine it in conclusion ladies and gentlemen while the special nature of investor state arbitrations requires some increased transparency over and above that existing commercial arbitrations further transparency measures will simply go too far moreover some of the recent changes to the rules governing investment arbitrations are not welcome because they amount to an unjustified infringement and some of the key aspects of any international arbitration and a time cost and complication to what is already a complex process thank you