Transparency across International Courts and Tribunals: Enhancing Legitimacy or Disrupting the Adjudicative Process?

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.