Paper presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021.
Transparency and consistency are desirable qualities in any legal system. Inadequate transparency is one of the most common complaints aimed at the investor-State dispute settlement (ISDS) system. Confidentiality of proceedings has been one of the main features of investment arbitrations. Gradually, this confidential nature has become heavily criticised because investment disputes frequently concern public interest such as protection of public health or environment but at the same time offer little or no opportunities for public participation. For these reasons, the general public and interest groups have pressed for access not only to the final awards, but also to proceedings. Demands for more transparent institutions and procedures have recently been raised. Under such circumstances, the trend toward open and participatory investment arbitrations intensified and consensus that the public should have the right to be informed about a notification of a claim, an access to proceedings and a final award was established in the international community.
On the other hand, consistency engenders predictability, thereby contributing to the system’s credibility and legitimacy. Conversely, a dispute system where comparable cases produce contradictory results is unpredictable, which increases disputes and their associated costs. The debate over the lack of consistency in investment arbitration is not new. Several authors have extensively analysed instances of alleged inconsistency in an attempt to identify its causes and propose solutions.
Transarency in Investment Arbitration: Manifestations and Prospects of Standardisation
Critics of investment arbitration have long condemned the lack of transparency at all stages of a dispute. This was because, until recently, treaties and international investment agreements (IIAs) were largely silent as to the degree of transparency which should attach to the arbitral proceedings conducted pursuant to them. Institutional rules also largely left the matter of procedural transparency to arbitral or party discretion. In light of silence in treaties and institutional rules, parties to investment disputes held significant residual discretion to deal with many aspects of transparency by agreement. In the absence of agreement, tribunals were left to decide matters of transparency under the rubric of their general powers to regulate the proceedings. a. International Arbitration Rules and Regulations: Causes of Dissimilarity and Prospects of Uniformity
Transparency in international investment arbitration refers to the extent to which the public can access arbitral proceedings and information pertaining to those proceedings. In this context, institutional arbitration rules offer different transparency frameworks. The substantive differences between these rules may be owed to the fact that there is no strict consensus as to the appropriate balance between squarely conflicting notions of confidentiality/privacy and transparency in international investment arbitration. On the one hand, compromising confidentiality peels away one main attraction of international arbitration. On the other, maintaining levels of transparency is of significant import in the context of investment arbitration because disputes often involve matters of particular public interest and consequence. In Biwater Gauff Ltd v. Tanzania, the claimant requested provisional measures on confidentiality as a result of the unilateral disclosure of the minutes of a tribunal meeting. The tribunal agreed to the requested measures, stating that the disclosure of some documents should not be allowed in principle since it would jeopardise the procedural integrity of the arbitral process.
In this regard, the standardisation of arbitration rules dealing with privacy and transparency would be a welcome development in international investment arbitration. It has the potential to achieve greater normative uniformity across institutions and boost the subjective acceptance of the regime, altogether increasing the legitimacy of investment arbitration. First, standardisation helps reduce uncertainty as to “how calls for transparency will be resolved in any particular case”. This is beneficial for states and investors alike who can rely on a single body of practice. Second, implementing a more robust set of transparency rules could increase public confidence in investment arbitration by virtue of its openness. Investor-state disputes may be of significant interest to potentially affected communities, such as those involving environmental or human rights concerns, state concessions over natural resources or approvals of the privatisation of public services, and disputes resulting in a state’s liability for which payment may be absorbed by public tax money. In this context, greater demands for transparency are justified and to be expected. In addition, transparency in arbitral decisions contributes to the development and drafting of new treaties and increases the predictability of investment law, consequently leading to greater “participation and confidence in the system particularly of the less knowledgeable investors and host States”. Moreover, increasing access to decisions also enhances the quality of decisions as tribunals and parties learn from the experience of their predecessors.
b. Amicus Curiae Submissions and Third Party Funding
In addition to increasing the transparency of arbitrations by providing the public with information about the cases, some tribunals have also increased the openness of the proceedings by specifically allowing non-parties to act as “amici curiae” and submit information relevant to the dispute. The 2006 revised ICSID Rules integrate that practice in an explicit provision allowing tribunals to accept amicus briefs. The rules require the tribunal to consult with the parties before deciding whether to allow the non-party submissions, but do not allow either or both parties together to veto the tribunal’s decision on the matter. This is consistent with the very concept of a “friend of the court” that serves to provide useful information to the tribunal, while leaving it up to the tribunal to determine how to use that information.
The relevant ICSID Rules (Rule 37(2) of the 2006 ICSID Arbitration Rules and Article 41(3) of the 2006 Additional Facility Rules) provide, inter alia, that “After consulting both parties, the tribunal may allow a person or entity that is not a party to the dispute… to file a written submission with the Tribunal regarding a matter within the scope of the dispute”. The 2006 ICSID Rules go on to provide that, when deciding whether to accept an amicus curiae submission, a tribunal must consider a non-exclusive list of three factors: (a) whether the submission will assist the tribunal determine a factual or legal issue by providing a perspective that differs from the parties to the dispute; (b) whether the submission is within the scope of the dispute; and (c) whether the non-party has a significant interest in the proceeding.
In Biwater Gauff Ltd v. United Republic of Tanzania, amici successfully invoked Amended Rule 37. The tribunal granted five non-governmental organisations the right to make written submissions. The tribunal concluded that the non-disputing parties’ written submissions had a reasonable potential to assist the arbitral tribunal by bringing a perspective, knowledge or insight that was different from that of the disputing parties.
Similarly, the COMESA Investment Agreement states that the “arbitral tribunal shall be open to the receipt of amicus curiae submissions in accordance with” certain requirements set forth in a separate annex. This annex, in turn, merely: (a) confirms the tribunal’s authority to accept and consider the submissions, (b) sets forth requirements for amicus curiae applicants to make their submissions in certain languages and disclose their identities and the identities of those who provided assistance in making the submission (financial or otherwise), and (c) adds that “submissions may relate to any matter covered by [the COMESA Investment Agreement] that is relevant to the claim before the tribunal”.
On the other hand, third-party funding is an influential ingredient which, if not disclosed, may impede transparency in investment arbitration. Neither the ICSID nor UNCITRAL Rules provide for an express power to inquire into a third-party funder’s involvement. Although tribunals have relied on their inherent power to order disclosure in cases involving a potential conflict of interest, this is not a settled matter.
In an ICSID decision, the tribunal ordered the claimants to disclose whether they were the recipients of third-party funding, and to divulge the names and details of the funder and some terms upon which the funding had been provided. On 12 June 2015, the ICSID tribunal in Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd Sti v. Turkmenistan ordered the claimants, two Turkish construction companies, to disclose whether their claims in the arbitration are being funded by a third party. In another PCA case under the UNCITRAL Rules, South American Silver Limited v. Bolivia, the tribunal ordered the claimant to disclose the identity of the third-party funder that granted financing to the claimant in the arbitration. Tribunals have also considered the presence of third-party funding in whether to grant security for costs. In RSM v. Saint Lucia, the tribunal granted RSM’s request for security stating that the presence of third-party funder “supports the Tribunal’s concern that Claimant will not comply with a costs award rendered against it”. More recently, in Eskosol v. Italy, the tribunal rejected Italy’s request for security for costs on the grounds Eskosol, with the assistance of a third-party funder, obtained an insurance policy from which costs could be paid. Conversely, it has been reported that in Luis García Armas v. Bolivarian Republic of Venezuela, the ICSID tribunal ordered the claimants to provide guarantee for Venezuela’s costs in defending the investment arbitration on the basis that claimants’ third-party funding agreement provides that the funder is not liable for any adverse cost orders and claimants have not established that they have the resources to pay an adverse costs order themselves.
It should be noted here that funding agreements may affect important procedural issues such as conflict of interests and requests for security for costs. Third-party funding may give rise to conflicts of interests in several ways with respect to the arbitrator’s independence, for instance if the arbitrator has a relationship with the third-party funder. However, conflicts of interests are not necessarily limited to arbitrators. Many third-party funders are well-known and large institutions, which are inevitably involved in other claims. Accordingly, the risk of non-disclosure in the context of conflict of interests is relatively high. A refusal would increase the chances of a challenge based on the arbitrator’s lack of impartiality and independence, including at the time of the enforcement of an arbitral award before national courts.
Consistency and Coherence of ISDS: What Is It About and What Lies Beyond?
A legal system is consistent when it produces coherent solutions, treats identical or similar situations in the same way, and gives equal treatment to the participants in the system. Nonetheless, many States have expressed their concerns regarding the predictability and consistency of the ISDS regime.
On the importance of consistency and coherence for the system’s legitimacy, Mauritius explained in the meetings of the UNCITRAL Working Groups that “this question of coherence and consistency is absolutely key. It is the major concern. There is an utter lack of predictability and therefore legitimacy in the framework as it exists today. There is no appeal; there is no harmonization system and for that reason and contrary to other views that have been expressed we say it is absolutely a problem of the system because ISDS is by its very nature fragmented and incapable of harmonization in its current form”. Meanwhile, Egypt stated that “the problem of inconsistency and unpredictability will remain as long as there is this large part of overlapping treaties of international and investment treaties especially the old generations of bilateral investment treaties which involve inaccurate drafting, uncontrolled drafting and indefinite drafting of the rules of the protection of investment”.
Certain features of investment law explain why it may be perceived as being more prone to inconsistent decisions than other areas of law. Specifically, its reliance on broad legal concepts and its decentralisation may foster inconsistent decisions, whereas other aspects, such as factual commonality and public availability of awards, may make the pre-existing inconsistencies more visible to observers.
a. Catalysts and Magnifiers of Inconsistency
The legal issues addressed in investment arbitration generally involve legal concepts that are designed to be applied to a broad range of situations, and, therefore, are open to criticism and different interpretations (e.g. fair and equitable treatment (FET), full protection and security (FPS), transparency, and arbitrary and discriminatory treatment). Further, the decentralised nature of dispute resolution under investment treaties contributes to its inconsistency. Treaties provide for arbitration in the context of different arbitral institutions, each with its own set of differing rules. In addition, the mere nature of arbitration, where parties have a determining influence over the composition of the tribunal, allows for inconsistent results. Each dispute is decided by tribunals consisting of different arbitrators chosen by the parties, sometimes with opposing views on the relevant matters. Finally, international investment law only emerged in its current form in 1959, when Germany and Pakistan adopted a bilateral agreement, which entered into force in 1962. The ICSID was not established until 1965, and significant case law in international investment law did not begin to take shape until the early 1990s with the end of the Cold War. While it may appear that investment law offers less certainty than many areas of domestic law, this is, in part, a product of the fact that many – if not most – areas of investment law are in the process of being formed.
In addition, different cases with similar factual patterns are common. In fact, it is not unusual for different cases to challenge a single state measure or group of measures affecting several investors. Occasionally, the common facts are not limited to the challenged measures, but also extend to the investment itself, which is sometimes jointly owned by different investors filing separate claims. The fact that different arbitration tribunals address similar facts contributes to the risk of inconsistent arbitral decisions. Besides, investment arbitration cases and decisions are often publicly available and regularly attract attention as they deal with state policies and matters of public interest. Although transparency may be seen generally as a factor that increases consistency – because it allows arbitral tribunals and practitioners to have access to previous decisions – it also highlights contradictions among decisions by different tribunals. Scholars and practitioners closely scrutinise decisions focusing on contradictions and thereby increase the perception of inconsistency.
b. Tackling Parallel Proceedings: Adverse Consequences and Potential Mitigators
Parallel proceedings may threaten the credibility of investment arbitration as a public form of adjudication because they can run against the principle of legal certainty and undermine arbitration as a credible method of dispute settlement. It is often in the context of parallel proceedings that inconsistency in investment arbitration arises. One paradigmatic example is the case of Ampal-American Israel Corporation and others v. Arab Republic of Egypt, in which Ampal-American Israel Corp and other companies brought an investment arbitration under the ICSID Convention and two BITs, as well as four other related arbitrations; three commercial and one additional investment arbitration under UNCITRAL Rules. The Ampal tribunal drew the line at claims in parallel arbitrations that are “double pursuit of the same claim in respect to the same interest”, reasoning that it would be an abuse of process to pursue this kind of parallel proceeding once the jurisdiction of one of the fora is confirmed. Thus, the tribunal held that Ampal had to “cure the abuse” and submit the claim to the exclusive jurisdiction of one tribunal, relinquishing the other.
Hence, parallel proceedings may have negative consequences that undermine the advantages of arbitration including the risk of inconsistent awards, in particular when contradictory decisions are made, and a party tries to enforce the judgment or the award. Further, double recovery may occur where a company, shareholder or another company within the same group brings a treaty claim and a claim for breach of contract and prevail in both proceedings for the same wrong.
Indeed, some commentators have argued that “arbitration fulfils its function only if it finally settles the dispute underlying the claims of the parties. This means that the end of arbitration proceedings shall coincide, from a substantial point of view, with the end of the dispute between the parties. If, when a claim is judged, another substantially identical claim is pending in another arbitration (or can be started again before another tribunal), arbitration has failed in fulfilling that function” by undermining the fundamental legal principles of legal certainty and procedural fairness. Parallel proceedings may also result in the increase in legal costs and in logistical issues because the parties need to present their arguments before multiple fora sometimes in different jurisdictions.
By and large, preventing parallel proceedings has not usually been a key concern for drafters of bilateral or multilateral investment arbitration treaties. Some treaties, however, include procedural mechanisms, which some consider may prevent parallel proceedings. For instance, fork-in-the-road clause gives parties a choice between seeking relief via either litigation in the host-state’s domestic courts, or international arbitration. Once the decision is made, the party waives its right to seek relief through the unchosen fora. While this does prevent the same entity from bringing claims in both litigation and arbitration, its effect is limited to that specific party.
Courts and tribunals may also resort to some doctrines in addressing parallel proceedings. Res judicata is one legal principle according to which courts and tribunals are bound by the earlier judgments or findings of another court or tribunal as to a dispute before them. The principle is grounded in the desire to ensure finality in the resolution of a dispute and to eliminate the harassment of respondents. However, the effect of this principle is limited. It only comes into play after a proceeding is complete, where there is a triple identity of object, cause, and parties, and it applies only to successive, but not simultaneous, parallel proceedings. Besides, Lis pendens is used by an adjudicator to stay or suspend a proceeding until the conclusion of a parallel proceeding before another adjudicator. This doctrine is applicable when parallel proceedings involve the same parties (persona), cause of action (causa petendi) and claims (petitum). Some commentators have suggested that this triple identity test should be relaxed, the persona requirement – in particular – to include identical claims brought by shareholders, locally incorporated companies and companies within the same chain of ownership.
In addition, arbitrators’ competence to rule on their own jurisdiction, the principle of competence-competence, provides tribunals with the means to stay proceedings before them for reasons that include the mitigation of adverse impacts of parallel proceedings. Although rules that govern investment arbitration are silent as to a tribunal’s power to stay proceedings, it is generally accepted that it falls within their inherent powers to conduct them in the manner they consider appropriate. Moreover, consolidation may be an option for parallel proceedings, in particular, when one or more of the arbitrators appointed in the various and related cases are identical. However, consent of all the parties involved is required, either expressly or by accepting the rules of the institution administering the arbitration or by explicit consent of the parties. Consolidation as a mechanism to increase the likelihood of consistent awards has been included on ICSID’s agenda for the amendment of its arbitration rules.
c. Tools to Ensure Consistency in Investment Arbitration
Where regionalism is especially ascendant, some states have attempted to create tools to exercise control over their treaties and ensure that the obligations they have undertaken are interpreted consistently across their overlapping investment agreements. A review of some of the multilateral treaties negotiated in recent years, offer insight into how states may be responding to concerns regarding overlap and inconsistency in ISDS awards. States may use these tools to ensure that tribunals provide consistent interpretations of the obligations they have undertaken to avoid conflicts between different legal regimes and instruments. The first and most obvious tool could be drafting substantive provisions in the text that will guide interpretation. Another tool states have at their disposal in several regional IIAs is the ability to issue joint interpretations of their treaties. Nonetheless, while these provisions are becoming more commonplace, it is unclear whether they are a practical means of achieving consistency across awards, especially in large multilateral treaties. Furthermore, joint interpretations may impact consistency in instances where the statement effectively “amends” rather than “clarifies” the treaty. Moreover, it has been disputed whether joint interpretations and notes of interpretation are binding on investors.
Perhaps the most underused tool is the non-disputing party submission procedure. These submissions are non-binding persuasive pronouncements by a single state on the meaning of certain provisions. Most commentators and tribunals have recognised that State treaty-members’ “common, concordant, and consistent statements” of their intent with respect to a treaty provision provide the best evidence of its meaning. Non-disputing party submissions are not as frequent as one might expect, however, especially considering that all member states, including non-parties to the dispute, have a right to submit statements on treaty interpretation, even without prior tribunal approval or party consent.
Transparency and consistency are undeniable features of any credible method of dispute settlement. Increased transparency of arbitration proceedings benefits the goal of consistency. Significant steps have been taken in this regard, notably the 2006 ICSID rules amendments requiring publication of awards or excerpts of awards, the 2014 UNCITRAL Rules on Transparency in Investment Arbitration and the Mauritius Convention. While a number of challenges still exist within the ISDS system, increasing its transparency and consistency fosters its legitimacy. Many of the criticisms levelled at ISDS can in fact be addressed through comprehensive, disciplined and collective efforts to attain those objectives.
* Mohamed H. Negm is State Counsel, Arbitration and International Dispute Resolution, Egyptian State Lawsuits Authority – Ministry of Justice. He represents the interests of Egypt before international courts and arbitral tribunals in international investment arbitrations. He is currently representing the State of Egypt in 9 investment arbitrations before the ICSID. He has handled many complex, high value, commercial institutional and ad hoc arbitral proceedings involving parties from the Middle East, Europe, Asia, and the United States under the rules of leading arbitral institutions such as the ICC, CRCICA, UNCITRAL, LCIA, and DIAC. Mr. Negm has been appointed by the African Union as an Expert Consultant on the Pan African Investment Code (PAIC). He was recently selected by the Association of Young Arbitrators (AYA) as one of Africa's 50 Most Promising Arbitration Practitioners in 2020. He is the Institute for Transnational Arbitration Reporter for Egypt and OHADA. Mr. Negm lectures on Arbitration Law and International Dispute Resolution in the American Bar Association Rule of Law Initiative. He was the regional representative of LCIA-YIAG for the Middle East and North Africa. Mr. Negm publishes regularly in international journals on issues of international law, international investment and commercial arbitration.
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 See e.g., Gabrielle Kaufmann-Kohler, Is Consistency a Myth? in Emmanuel Gaillard and Yas Banifatemi (eds), Int’l Arbitration Inst, Precedent in International Arbitration (Juris Publishing, Inc. 2008), pp. 137–148; Susan D Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions (2005) 73 Fordham L Rev 1521; Charles N Brower, Charles H Brower II and Jeremy K Sharpe, The Coming Crisis in the Global Adjudication System (2003) 19 Arb Intl 415.
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 Biwater Gauff Ltd v. United Republic of Tanzania, Procedural Order No. 5, para. 55 (ICSID Case No ARB/05/22), February 2007.
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 Nathalie Bernasconi-Osterwalder and Lise Johnson, Transparency in the Dispute Settlement Process: Country best practices, Bulletin No. 2, Best Practices Series, International Institute for Sustainable Development, February 2011.
 Biwater Gauff Ltd v. United Republic of Tanzania, Procedural Order No. 5, para. 55 (ICSID Case No. ARB/05/22), February 2007, (“The arbitral tribunal grants the Petitioners the opportunity to file a written submission in these arbitral proceedings, pursuant to Rule 37(2)”).
 Art. 28(8); See also Annex A, Art. 8.
 Annex A, Art. 8.
 See Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd Sti v. Turkmenistan, Procedural Order No. 3, ICSID Case No ARB/12/6.
 South American Silver Limited v. Bolivia, PCA Case No. 2013-15, Procedural Order No. 10 dated 11 January 2016.
 RSM Production Corporation v. Saint Lucia, Decision on Saint Lucia’s Request for Security for Costs of 13 August 2014, para. 83.
 Eskosol SpA in Liquidazione v. St Italian Republic, ICSID Case No ARB/15/50, Procedural Order No. 3 of 12 April 2017, para. 37.
 Luis García Armas v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/16/1, Procedural Order No. 8 of 20 June 2018.
 Anthea Roberts and Zeineb Bouraoui, UNCITRAL and ISDS Reforms: Concerns about Consistency, Predictability and Correctness, June 2018
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 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd ed., Oxford University Press 2012), p. 6.
 Samaa A. Haridi and Reza Mohtashami QC, Consistency, Efficiency and Transparency in Investment Treaty Arbitration, Report of the IBA Subcommittee on Investment Treaty Arbitration (2018), p. 7.
 See Giovanni Zarra, Parallel Proceedings in Investment Arbitration (Giappichelli Editore 2016).
 This parallel investment treaty arbitration against Egypt was initiated under the 2013 UNCITRAL Arbitration Rules (“UNCITRAL Rules”) and Egypt’s investment treaty with Poland. In that proceeding, the claimants were Polish-Israeli national Yousef Maiman and three companies of the Merhav group of companies that he allegedly controls, including Ampal’s subsidiary, Merhav Ampal Group Ltd.
 Giovanni Zarra, Parallel Proceedings in Investment Arbitration XV (2017).
 See Denis Bensaude, The International Law Association’s Recommendations on Res Judicata and Lis Pendens in International Commercial Arbitration (2007) 24 JIA 415; see also Bernardo M Cremades and Ignacio I Madalena, Parallel Proceedings in International Arbitration (2008) 24 AI 507, 519.
 Gary B Born, International Commercial Arbitration, Vol III: International Arbitral Awards (Wolters Kluwer 2014) 3792.
 Denice Forstén, Parallel Proceedings and the Doctrine of Lis Pendens in International Commercial Arbitration: A Comparative Study between the Common Law and Civil Law Traditions (Uppsala University 2015). See also www.diva-portal.org/smash/get/diva2:813565/FULLTEXT01.pdf accessed 15 December 2017.
 See Christoph Schreuer, Shareholder Protection in International Investment Law (2005) 3 TDM 1, 14; Silja Schaffstein, The Doctrine of Res Judicata Before International Arbitral Tribunals (PhD Thesis, University of Geneva and University of London, 2011, paras. 713–715.
 See IAReporter, ICSID Identifies Sixteen Topics that Have Emerged from Rules Amendment Consultation, and Turns to Study and Drafting, IA Rep (Santa Monica, 8 May 2017).
 David Gaukrodger, The Legal Framework Applicable to Joint Interpretive Agreements of Investment treaties, OECD Working Papers on International Investment, No. 2016/01, OECD Publishing, Paris; Eleni Methymaki and Antonios Tzanakopoulos, Masters of Puppets? Reassertion of Control Through Joint Investment Treaty Interpretation, in Andreas Kulick (ed.) Reassertion of Control Over the Investment Treaty Regime (Cambridge University Press 2017), pp. 155–181.
 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (2015) 54 ILM 747 (the “Mauritius Convention”).
 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Points (1957) 33 Brit Y B Int’l L 203, p. 223; See Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Roles of States (2010) 104 AJIL 179, 200.