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Abstract
Transparency in international adjudication is often lauded as the hallmark of an effective judicial process; the goal to which all adjudicative bodies ought to aspire in order to enhance their legitimacy. This paper scrutinizes this perspective: while transparency certainly provides benefits to the international legal order, it needs to be balanced against other objectives in the pursuit of justice. The paper proceeds in two parts. First, it considers the status of transparency in various international courts and tribunals, across five main areas (requests, submissions, hearings, awards and compliance), arguing that most adjudicatory mechanisms have already achieved adequate transparency in the majority of areas. Second, it reviews the drawbacks to transparency, and how unbridled access may disrupt the adjudicative process, which rather ought to facilitate the resolution of a specific dispute and not a ‘trial by media’. Overall, achieving a balance between transparency and confidentiality generates the most optimal outcome for international dispute settlement.
Abstract
This article addresses whether the decisions in the MOX Plant OSPAR Arbitration and the EC – Biotech Case clarify or obscure systemic integration of relevant rules of international law. The OSPAR award has clearly generated greater confusion, both formally and substantively, by not staying the proceedings or interpreting the OSPAR Convention in light of relevant rules of international and regional law. Similarly, the Panel in the EC – Biotech case broke from the progressive example in US – Shrimp in its reluctance to employ the different legal means for considering other international law. However, attempts to “cross-fertilise” treaties by reference to other rules of international law should not be pursued overzealously, as it may create resistance among states towards the development of international law.