Opponents of ISDS argue that arbitrations are sometimes carried out in secret by trade lawyers who do not enjoy the typical safeguards of judicial independence and procedural fairness, who earn income only if a case is brought and proceeds, and who are not accountable to the public or required to take into account broader constitutional and international law human rights norms.[39] The Peterson Institute for International Economics agrees "that secrecy has gone too far" in many ISDS cases, but notes that agreements such as the Trans-Pacific Partnership did ensure greater transparency in ISDS.


Why are arbitrations of Investor-state dispute settlement sometimes carried out in secret? Does carrying out arbitrations in secret give any advantages to some companies or governments? What are the motivations for carrying them in secret? Do companies or government fear some public backlashes over some of the arbitration decisions?

  • An interesting question, but given the number of such threaties I expect it would be impossible to generalize. Note that the protection mechanisms are negotiated between states, to facilitate trade (or so they say).
    – o.m.
    Jul 25, 2021 at 14:11
  • Hmm, how should I reformulate the question? Feel free to modify it if you think you can improve it.
    – Sayaman
    Jul 25, 2021 at 14:14

1 Answer 1


Giving a full set of reasons will be challenging.

However, the most obvious set of reasons to keep ISDS decisions secret is the same set of reasons why regular court decisions might be kept secret. Those include a mutual desire of parties and national security interests.

Note that the arguments of the opponents are misleading as they suggest the ISDS reasons are unique. "Not accountable to the public" also applies to an independent judiciary; Poland is currently drawing the EU's ire over their attempt to make the judiciary accountable.

  • Public courts almost always make public decision. Arbitration as a forum usually has private decision-making. The tradition of this means of dispute resolution which impacts how the dispute resolution mechanism is designed, is more a factor than policy here.
    – ohwilleke
    Jul 26, 2021 at 19:39

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