Inscrutable procedural orders: two models of transparency in international dispute settlement (ICSID and ICJ)

Abstract In the 2022 International Centre for Settlement of Investment Disputes (ICSID) Arbitration Rules, Rule 27 states not just that ‘the Tribunal shall make the orders and decisions required for the conduct of the proceedings’, as in its previous version, but also—and for the first time—that ‘orders and decisions … shall indicate the reasons upon which they are made …’ (emphasis added). The present article aims to investigate possible consequences stemming from the introduction of Rule 27 in ICSID arbitration and identify which possible changes would be brought about in the proceedings before the International Court of Justice (ICJ) by introducing an analogous provision in the Rules of the Court. Quite paradoxically, the analysis demonstrates that procedural orders rendered by tribunals established under the auspices of ICSID, which pronounce upon essentially ‘private’ disputes, already meet a relatively high standard of transparency. In contrast, some procedural orders rendered by the ICJ, seen as the public forum of the international community, would greatly benefit from increased transparency, albeit with some exceptions.