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Openness in international investment law: Too much of a good thing?

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Openness in international investment law : Too much of a good thing? / Pohl, Jens Hillebrand.

In: University of Bologna Law Review, Vol. 3, No. 2, 13.12.2018, p. 219-231.

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@article{fa9e3ee43a5144118749e09e43b91146,
title = "Openness in international investment law: Too much of a good thing?",
abstract = "In recent years, investment treaty practice and arbitral case law have increasingly recognized government transparency as an obligation of international investment law. Yet, there could hardly be less of a consensus regarding what level of transparency is required, with case law ranging from one strand requiring “total transparency” to another merely prohibiting “complete lack of transparency”. This apparent paradox seems to be about to change. Some of the most recent treaty practice appears to endorse the latter, restrictive interpretation of transparency. How come? This article sets forth two arguments: First, transparency is in part a binary concept, similar to many other familiar and related legal concepts, such as good faith, lack of arbitrariness and due process, and that transparency could thus, without contradiction, be said to be either “total” or “completely lacking” and nothing in between. Second, restrictive case law and the most recent treaty practice refuses to recognize as a legal requirement the concept of transparency as denoting a gradual quality of the law and of the administration of law.",
author = "Pohl, {Jens Hillebrand}",
year = "2018",
month = "12",
day = "13",
doi = "10.6092/issn.2531-6133/8773",
language = "English",
volume = "3",
pages = "219--231",
journal = "University of Bologna Law Review",
issn = "2531-6133",
publisher = "Universita di Bologna",
number = "2",

}

RIS

TY - JOUR

T1 - Openness in international investment law

T2 - University of Bologna Law Review

AU - Pohl, Jens Hillebrand

PY - 2018/12/13

Y1 - 2018/12/13

N2 - In recent years, investment treaty practice and arbitral case law have increasingly recognized government transparency as an obligation of international investment law. Yet, there could hardly be less of a consensus regarding what level of transparency is required, with case law ranging from one strand requiring “total transparency” to another merely prohibiting “complete lack of transparency”. This apparent paradox seems to be about to change. Some of the most recent treaty practice appears to endorse the latter, restrictive interpretation of transparency. How come? This article sets forth two arguments: First, transparency is in part a binary concept, similar to many other familiar and related legal concepts, such as good faith, lack of arbitrariness and due process, and that transparency could thus, without contradiction, be said to be either “total” or “completely lacking” and nothing in between. Second, restrictive case law and the most recent treaty practice refuses to recognize as a legal requirement the concept of transparency as denoting a gradual quality of the law and of the administration of law.

AB - In recent years, investment treaty practice and arbitral case law have increasingly recognized government transparency as an obligation of international investment law. Yet, there could hardly be less of a consensus regarding what level of transparency is required, with case law ranging from one strand requiring “total transparency” to another merely prohibiting “complete lack of transparency”. This apparent paradox seems to be about to change. Some of the most recent treaty practice appears to endorse the latter, restrictive interpretation of transparency. How come? This article sets forth two arguments: First, transparency is in part a binary concept, similar to many other familiar and related legal concepts, such as good faith, lack of arbitrariness and due process, and that transparency could thus, without contradiction, be said to be either “total” or “completely lacking” and nothing in between. Second, restrictive case law and the most recent treaty practice refuses to recognize as a legal requirement the concept of transparency as denoting a gradual quality of the law and of the administration of law.

U2 - 10.6092/issn.2531-6133/8773

DO - 10.6092/issn.2531-6133/8773

M3 - Article

VL - 3

SP - 219

EP - 231

JO - University of Bologna Law Review

JF - University of Bologna Law Review

SN - 2531-6133

IS - 2

ER -