To ISDS or not to ISDS: A question of legitimacy in dispute resolution

Investor State Dispute Settlement (ISDS) has gained prominence in recent years with an explosion in the number of investor claims against states. While the evolution of this type of arbitration was expected, its focus and context was not. Investors are currently bringing actions against developed states in unanticipated policy areas. Greece, facing actions from investors challenging its debt haircut and Spain, battling investor challenges to its revamped energy policy are examples of the use of arbitration as a political as well as a dispute resolution tool. It is for this reason why the proposal for the inclusion of ISDS in the Transatlantic Trade and Investment Partnership (TTIP) has caused so much heated discussion. This paper examines the recent evolution and likely trajectory of investor state dispute settlement, reflecting on consequences for perceptions of arbitration and its links with politics and economics.

The Concept of Transparency in International Relations: towards a critical approach

Transparency is an important concept in International Relations. The possibility of realizing transparency in practice operates as a central analytical axis defining distinct positions on core theoretical problems within the field, from the security dilemma to the function of international institutions and beyond. As a political practice the pursuit of transparent governance is a dominant feature of global politics, promoted by a wide range of actors across a vast range of issue areas, from nuclear proliferation to Internet governance to the politics of foreign aid. Yet, despite its importance, precisely what transparency means or how the concept is understood is frequently ill-defined by academics and policy-makers alike. As a result, the epistemological and ontological underpinnings of approaches to transparency in IR often sit in tension with their wider theoretical commitments. This article will examine the three primary understandings of transparency used in IR in order to unpack these commitments. It finds that while transparency is often explicitly conceptualized as a property of information, particularly within rationalist scholarship, this understanding rests upon an unarticulated set of sociological assumptions. This analysis suggests that conceptualizing ‘transparency-as-information’ without a wider sociology of knowledge production is highly problematic, potentially obscuring our ability to recognize transparent practices in global governance. Understanding transparency as dialogue, as a social practice rooted in shared cognitive capacities and epistemic frameworks, provides a firmer analytical ground from which to examine transparency in International Relations.