Scholars, NGOs, and practitioners have been discussing the legitimacy of investor-state dispute settlement (“ISDS”) for years. Much of this debate has focused on the critique that ISDS, usually taking the form of confidential and binding arbitral proceedings, sees private and unelected tribunals determining matters thought to be of public importance. Some activist and media publications (such as in this local newspaper or in this news website) also allege a host of profound ills arising from ISDS: negative impacts on systems of criminal justice, the protection of kleptocracy, and the placing of pressure on host states to assist in the murder of environmental activists.³⁾ All of this harm is compounded still further, it is argued, by the fact that ISDS is largely conducted behind closed doors.

The Open Court Principle

The argument that justice should be seen to be done, also known as the open court principle, is nothing new to interlocutors from (at least) the common law world. Generally speaking this principle holds that both proceedings and the record, including the evidence submitted in the matter, should be available for public scrutiny. In many jurisdictions this principle has become enshrined in law and, in some locations, in the constitutions of States. Openness is argued to foster fairness and to allow individuals to determine for themselves whether or not legal matters are being conducted in accordance with the rule of law.⁴⁾ Transparency is thought to foster legitimacy, and on some views, is a condition of legitimacy.

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