The Rise of Transparency in International Arbitration - Chapter 6 - The ICSID Approach to Publication of Information in Investor-State Arbitration
MEG KINNEAR is the Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank. She was formerly the Senior General Counsel and Director General of the Trade Law Bureau of Canada, where she was responsible for the conduct of all international investment and trade litigation involving Canada, and participated in the negotiation of bilateral investment agreements. In November 2002, Ms. Kinnear was also named Chair of the Negotiating Group on Dispute Settlement for the Free Trade of the Americas Agreement. From October 1996 to April 1999, Ms. Kinnear was Executive Assistant to the Deputy Minister of Justice of Canada. Prior to this, Ms. Kinnear was Counsel at the Civil Litigation Section of the Canadian Department of Justice (from June 1984 to October 1996) where she appeared before federal and provincial courts as well as domestic arbitration panels. Ms. Kinnear was called to the Bar of Ontario in 1984 and the Bar of the District of Columbia in 1982. She received a Bachelor of Arts (B.A.) from Queen's University in 1978; a Bachelor of Laws (LL.B.) from McGill University in 1981; and a Master of Laws (LL.M.) from the University of Virginia in 1982. Ms. Kinnear has published numerous articles on international investment law and procedure and is a frequent speaker on these topics. She is a co-author of Investment Disputes under NAFTA (published in 2006 and updated in 2008 & 2009). She also co-authored texts on Canadian legal procedure including Federal Court Practice (1988-1990, 1991-1992, and 1993-2009 annually) and 1995 Crown Liability and Proceedings Act Annotated (1994).
ELOÏSE OBADIA is Avocat à la Cour, Attorney-at-Law, New York and joined ICSID in December 1997. She has served as Secretary of the Tribunal in several arbitral proceedings brought under the ICSID Convention, the ICSID Additional Facility Rules and the UNCITRAL Rules. She has also served as Secretary of Conciliation Commissions and ad hoc Committees in annulment proceedings brought under the ICSID Convention. In addition, she has served as Coordinator in an Expert Determination under the Indus Waters Treaty (1960). Before joining ICSID, she was an associate with the law firm Curtis, Mallet-Prevost, Colt & Mosle, Paris, France, and visiting lecturer at Duke University. Mrs. Obadia completed a Master of Laws at Duke University. She holds degrees from the University of Paris II Panthéon-Assas and the University of Paris-Dauphine.
MICHAEL GAGAIN joined ICSID in July 2011. He is associated with the institutional affairs team of the Centre, and his work involves matters relating to the Administrative Council meetings, membership ,and various other institutional activities and initiatives. In addition, he helps operate ICSID’s publications program, including serving as an associate editor for the ICSID Review—Foreign Investment Law Journal. Before joining ICSID, Mr. Gagain worked for the Public International Law & Policy Group, a Washington, D.C.- based pro bono law firm, where he focused on matters relating to war crimes prosecutions. In addition, he has worked at the Office of the Co-Prosecutors in the Extraordinary Chambers in the Courts of Cambodia (the Khmer Rouge Trials) and two government agencies in Massachusetts. Mr. Gagain completed a Master of Laws degree at the American University, Washington College of Law in Washington, D.C. He also holds degrees from the New England School of Law in Boston, Massachusetts and the State University of New York at Binghamton. Mr. Gagain is licensed to practice law in the Commonwealth of Massachusetts.
Confidentiality has always been a key feature of international commercial arbitration and is perceived by most parties as one of its strengths.2 By comparison, one of the hallmarks of investor–State dispute settlement (ISDS) is the recent move toward greater transparency in arbitral proceedings. 3 This trend has been characterized by many as one of the strengths of ISDS and evidence that the ISDS system has the capacity to respond to stakeholder concerns about investment arbitration.4 The motivation for these changes is the recognition that 'different considerations may have to be taken into account when recourse to arbitration is sought to settle disputes affecting public interest.'5 Among the factors calling for a greater level of transparency in investment arbitration are the presence of a State in the proceedings (usually as respondent), the fact that State funds may defray arbitration costs and satisfy adverse awards, the possibility that questions of public policy may be raised in connection with the dispute, and the potential impact of an adverse award on the host State and its nationals.6 The International Centre for Settlement of Investment Disputes (ICSID, the Centre) has been at the forefront of the trend toward increased transparency in the conduct of investment arbitration.