Rand Investments v. Republic of Serbia: Transparency and the Limits of Consent

Abstract

International investment law has consistently grappled with the issue of transparency. While the need for increased transparency in the practice of investment tribunals is generally recognized in principle, in practice the application of transparency norms often raises contentious issues. One common issue is the appropriateness of transparent proceedings where the Bilateral Investment Treaty (BIT) governing the dispute is silent on the matter. A further, more vexed question arises when claimants proceed under multiple BITs with disparate transparency obligations. This situation arose in Rand Investments v. Republic of Serbia, where the claimants instituted an arbitration under both the Canada-Serbia and the Cyprus- Serbia BITs. Noting that the Cyprus-Serbia BIT was silent on the question of transparency, the Majority held that the transparency provisions of the Canada-Serbia BIT could be applied to the entire arbitration on grounds of procedural efficiency. However, the respondent’s arbitrator dissented, finding that the Majority’s approach violated Serbia’s consent and sovereignty. Upon examining the dichotomous approaches adopted by the Majority and the Dissenting Arbitrator, this case comment offers an insight into the potential implications of the case on future investment arbitrations involving multiple BITs with disparate transparency obligations. investment arbitration, dissenting opinion, transparency, Lotus principle, Effet Utile, procedural efficiency, Eurogas v Slovakia, duty of arbitrator, state consent, residual powers of the tribunal, confidentiality.