Comment by Gus Van Harten *
The discussion of investor-state dispute settlement in this OECD document reflects a positive step in the push for transparency and openness in investor-state arbitration. It is also noteworthy for its recognition that investor-state disputes often engage major issues of public policy.
The document is also positive for its mention of issues of integrity and competence in investment arbitration. The lack of institutional safeguards of independence in the system is a major concern, although it tends to receive less attention than the lack of transparency. Finally, the reference to competence in the arbitration process could be taken as a tacit recognition that investment arbitrators sometimes lack expertise in the important issues of public policy and public budgeting that arise in investor-state disputes.
The OECD reports that the document was approved after substantial analysis and discussion at the 13th FOI Roundtable in October 2010, an electronic consultation of selected outside experts, and at the 14th FOI Roundtable in March 2011. It was to be presented to the OECD Council at Ministerial level in May 2011 as part of the OECD Green Growth Strategy report.
*Associate Professor, Osgoode Hall Law School