Washington International Law Journal


Mahmoud Elsaman


One advantage of alternative dispute resolution mechanisms is the confidentiality that they provide. Negotiations preceding and during dispute resolution proceedings are no exception to the rule of privacy. However, when governments are involved in negotiations, confidentiality may contradict the free access to information as a fundamental human right that plays a significant role in sustaining good governance by promoting transparency and government accountability. While there are escalating efforts to enhance the right to access information related to investment arbitration proceedings, not all investment disputes are settled through investment arbitration. A significant number of investment disputes are settled directly through investment negotiation between host states and foreign investors before the issuance of an award, or even afterwards. Investment negotiations may save the parties time and the costs usually associated with arbitration; however, they may also threaten the right to access information and, accordingly, the principles of good governance, including transparency and accountability. This article argues that investment negotiation impairs the right to access information because of confidentiality that surrounds the negotiation process and the negotiated settlement agreement. As such, the non-disclosure of negotiated settlement agreements adversely impacts the principles of good governance and the protection of public interest as two interrelated principles with the right to access information. In addition, this article underlines that the negative repercussions of investment negotiation are not peculiar to both developed and developing countries. In supporting this argument, two examples from Germany and Egypt are presented.

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