Balancing Transparency and Confidentiality in Investor-State Mediation:

Perspectives From Southeast Asia

Dao Kim Anh, Vo Phuong Thao and Mai Thi Chuc Hanh

 

ABSTRACT: This article explores the critical balance between transparency and confidentiality in investor-state mediation, with a particular focus on Southeast Asia. As mediation emerges as a favoured alternative dispute resolution (ADR) mechanism in investor-state dispute settlement (ISDS), it offers benefits such as faster resolutions, reduced costs, and the preservation of business relationships. However, the confidentiality that fosters trust in mediation often conflicts with demands for transparency, especially in ISDS cases involving public interests. This tension presents a significant challenge to maintaining the effectiveness of mediation while ensuring accountability and public trust. Southeast Asia’s cultural emphasis on harmony and informal dispute resolution provides a unique context for addressing these issues. The region’s active engagement with frameworks like the Singapore Convention on Mediation, alongside the development of regional mediation institutions, demonstrates a commitment to enhancing mediation practices. Through a comparative analysis of mediation rules and treaty practices, this article argues that existing mediation rules and international investment agreements (IIAs) in Southeast Asia often fail to adequately address the transparency-confidentiality conflict. It identifies key gaps and highlights some innovative approaches for resolving these tensions. The article concludes with strategic recommendations for Southeast Asian countries to develop mediation rules and treaty provisions that effectively balance confidentiality with transparency, thereby enhancing the legitimacy and efficacy of investor-state mediation in the region.