Public Hearings in Investor-State Treaty Arbitration: Revisiting the Principle

This thesis examines the scope, role and contemporary application of the traditional principle of public hearings, with a particular focus on the specific dispute resolution system of investor-state arbitration. Whereas there have been extensive discussions in recent years surrounding developments which aim to increase the procedural openness and transparency of this traditionally private dispute resolution system, the emergence of a distinct requirement of holding public hearings in such contexts has not yet been given much attention. This thesis seeks to provide a better understanding of public hearings in investment treaty arbitration. By going beyond the usual narrative of the legitimacy and policy objectives of transparency, a more systematic and comprehensive approach to the issue of public hearings in investor-state arbitration is adopted. In addressing existing gaps in the literature, this thesis contends that current developments related to the principle of public hearings should not be analysed as a phenomenon specific to investor-state arbitration, but should instead be analysed within the broader context of the analogous developments at both the domestic and international level. In conducting such an investigation, this thesis situates the debate surrounding public hearings in investment treaty arbitration within a broader legal landscape, encompassing both national and international courts and tribunals. By examining the evolution of public hearings, it is argued that a steady shift in the understanding of the principle of public hearings over time may be detected. Public hearings have gone from serving merely as a means of protecting the individual from the secrecy and arbitrariness of the state, to becoming a democratic tool which the public is entitled to use not only in order to monitor and evaluate the administration of justice, but also as a platform for facilitating further public debate. In other words, the thesis demonstrates a shift in the understanding of the principle of public hearings from being a mere right of an individual to be heard in an open court, to the (additional) right of the general public to have an insight into what goes on in the courtroom and the active duty of the courts to ensure that this right is respected. This latter aspect of the principle of public hearings is subject to comparative analysis which examines the normative and practical solutions adopted by national and international courts when applying the principle of public hearings. While detecting a divergent legal landscape when it comes to providing public access to hearings, this thesis reveals a general trend towards greater regulation of the ways in which the public may obtain such access. What is more, it shall be shown that, in an era of expanded media coverage of public hearings, the subsequent enlargement of the audiences for such hearings, and the possibility to instantly disseminate information about proceedings through various technologies creates new paths for procedural openness and new challenges for the courts. Based on the findings of this comparative analysis, the thesis argues that it is not only the principle of public hearings which has been renewed and transformed. In seeking to adapt to the principle, the procedures in which the principle of public hearings operates have also started to change. This comparative analysis then forms the basis upon which a critical analysis and in-depth assessment is provided within the context of public hearings in investor-state arbitration. From a more “dispute-oriented” perspective, the thesis looks into the considerations and challenges that ought to be taken into account by arbitral tribunals and parties when organising a public hearing. By not losing sight of the implications for the system as a whole, however, the thesis addresses the future impact that the introduction of public hearings into the system investor-state arbitration may have on that system and, notably, upon its procedures. The key finding here is that the increasing relevance of public hearings in investor-state arbitration constitutes merely one part of the overall evolution of the “public” dimension of the requirement of public hearings. When taking these developments together, the thesis concludes that the debate on what constitutes a truly public hearing has entered a new epoch, with new actors and new challenges.