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The panel explored the concept of “transparency” in international economic law. Professor Jarrod Wong, the panel’s moderator, started the discussion by noting, with irony, that the concept of transparency was “opaque”.
Professor Padideh Ala’i, drawing on her recent book, a “Research Handbook on Transparency” (Edwin Elgar Publishing), discussed a number of different concepts of transparency. She noted that it was often used as a more palatable synonym for “anti-corruption” reforms; that it could refer to the transparency of domestic policies, such as policies that violate trade agreements; or that it could refer to the transparency of international organizations themselves.
Professor Greg Shaffer built upon Professor Ala’i comments by focusing on the concept of transparency in international trade. Professor Shaffer discussed his draft paper that analyzes the extent to which various trade-related regimes involving subsidies are transparent, focusing in particular on the ways in which NGOs might promote transparency of state policies that serve as trade-law-problematic subsidies.
Mélida Hodgson (Foley Hoag) and Julia Salasky (UNCITRAL) focused their comments on transparency in international investment law. Ms. Hodgson detailed provisions in the 2012 U.S. Model Bilateral Investment Treaty that require signatory states to publicize their laws and regulations, and that impose a model of the administrative state that reflects the U.S. Administrative Procedure Act’s “notice and comment” system of regulation. She also highlighted the fact that U.S. investment treaties impose transparency norms on the investor-state dispute settlement process, by, for example, promoting open hearings and providing opportunities for non-disputing Parties to participate in the proceedings. Ms. Salasky discussed efforts by UNICTRAL to promote transparency in investor-state arbitration. UNCITRAL has recently released a set of “rules” on investor-state transparency and a convention on the same subject. Both instruments aim to require investor-state tribunals to publish a wide array of arbitration-related documents, and to hold open hearings, among other measures. Ms. Salasky noted that the transparency rules do not apply to existing investment treaties, a fact that may limit their immediate impact.
Professor Wong led a question-and-answer session with the audience for the last ten minutes of the panel. A vigorous debate ensued over the question of whether there was a need for greater openness and transparency in treaty negotiations, with specific reference made to negotiations over TTIP and TPP. Ms. Hodgson emphasized the practical difficulties of engaging in high-level negotiations where negotiating positions are made public. Professor Shaffer argued vigorously, in opposition, that the U.S. government in particular could and should be more open about the ongoing negotiations. Time ran out with the debate unresolved.
Jason Yackee is an Associate Professor at the University of Wisconsin Law School.