Democratizing international dispute settlement: The case of trade and investment disputes

The paper examines the 'democratic deficit' in international dispute settlement, focusing on the World Trade Organization (WTO) and investor-state arbitration. It argues that these processes often lack transparency and public participation despite their significant impact on domestic public policy, human rights, and the environment. While the WTO has made some progress in publishing reports and accepting amicus curiae briefs, it still maintains confidential submissions and closed hearings. Investor-state arbitration is described as even more secretive, often based on private commercial models where the public may not even know a proceeding has begun. The author calls for reforms to these rules to ensure that decisions affecting the public are subject to public scrutiny.

• International dispute settlement mechanisms generally lack transparency, public participation, and accountability, which the author argues undermines democratic values and the legitimacy of the processes.
• The World Trade Organization (WTO) dispute settlement system has improved transparency over its predecessor (GATT), but remains undemocratic because reports are often delayed in public release and party submissions and hearings are typically kept confidential.
• Since the 1998 Shrimp/Turtle case, the WTO Appellate Body has recognized the authority to accept amicus curiae briefs from civil society, although panels have no legal obligation to do so and it is unclear if these briefs are substantively considered.
• Investor-state arbitration is characterized by a 'secretive model' derived from private commercial arbitration, often making it impossible for the public to know when proceedings have started or what the issues are.
• Investor-state disputes are increasingly used by foreign investors to challenge domestic regulations concerning the environment, health, and human rights, sometimes resulting in massive monetary liabilities for public treasuries.
• The International Centre for Settlement of Investment Disputes (ICSID) provides slightly more transparency than other regimes by maintaining a public registry, but it still does not publish the formal notices of arbitration.
• Some progress toward transparency has been made by the United States, Canada, and Mexico, who committed to disclosing all documents related to NAFTA investment arbitrations.

APA

Bernasconi-Osterwalder, N. (2006). Democratizing international dispute settlement: The case of trade and investment disputes. Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2015/03/ICNRD6_300ct06.pdf

Chicago

Bernasconi-Osterwalder, Nathalie. Democratizing international dispute settlement: The case of trade and investment disputes. Center for International Environmental Law, 2006. https://www.ciel.org/wp-content/uploads/2015/03/ICNRD6_300ct06.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |title=Democratizing international dispute settlement: The case of trade and investment disputes |publisher=Center for International Environmental Law |date=2006 |url=https://www.ciel.org/wp-content/uploads/2015/03/ICNRD6_300ct06.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2006democratizing, author = {Bernasconi-Osterwalder, Nathalie}, title = {{Democratizing international dispute settlement: The case of trade and investment disputes}}, institution = {Center for International Environmental Law}, year = {2006}, url = {https://www.ciel.org/wp-content/uploads/2015/03/ICNRD6_300ct06.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }