Procedural Transparency in the Settlement of Treaty-Based Investment Disputes in EVIPA and CPTPP

Important characteristics of commercial arbitration include privacy and confidentiality; nonetheless, in investor-state arbitration, most of the investment treaties or arbitral rules referred therein often seek to enhance transparency and public participation by introducing three new features to investment arbitration’s proceedings: public access to documents related to the arbitration, public access to hearings; and amicus curiae submission. Those provisions generally contain exceptions to maintain a balance between the public interest on the one hand, and the interest of the disputing parties on the other hand in the fair and efficient resolution of the dispute. The two treaties Viet Nam has recently concluded, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the EU-Viet Nam Investment Protection Agreement (EVIPA), have stipulated the procedural transparency requirements, which are in line with a new trend of development in international investment law. Although Viet Nam currently maintains confidentiality with regard to investor-state arbitration, the fact that Viet Nam has made international commitments on transparency promises benefits such as increasing public interest protection, improving governance and ensuring the right to information.