From what I can tell, Australia has usually been pretty good about transparency in terms of its WTO dispute and investment arbitration proceedings. It generally posts its submissions online.
But as Investment Arbitration Reporter tells us, it is holding back on the briefs in the plain packaging investment arbitration, because it worries the arguments there would give the WTO complainants an early look at its WTO defenses:
The Australian Attorney-General’s Department has denied a request made by IAReporter under freedom of information laws for access to Australia’s Statement of Defence in an arbitration brought by Philip Morris Asia Limited. The Statement of Defence was filed by Australia on October 23, 2013, and would offer the first detailed elaboration of Australia’s views on the merits of the case.*
In its decision of April 7, 2014 rejecting the request, the Attorney-General’s Department considered that the Statement of Defence is covered by legal professional privilege and is therefore exempt from disclosure under Australia’s freedom of information legislation. The Department considered that the Statement had been prepared by a team of both government and external lawyers acting as independent advisers for their client, the Commonwealth of Australia, and was intended for use in ongoing litigation, meaning that legal professional privilege attached to it.
The Department also took the view that release of the Statement of Defence “would have detrimental implications in the ongoing BIT proceedings as well as ongoing World Trade Organization (WTO) proceedings”. Given the “real harm” that would result from release, the Department said, privilege should not be waived over Australia’s defence....
Furthermore, the Department said, a release of the defence would make Australia’s arguments and evidence available to the five states that have brought claims against Australia at the WTO, again threatening the Department’s proper and efficient conduct in those proceedings (where it is assisting Australia’s Department of Foreign Affairs and Trade). This would give an “unfair legal advantage” to those complainant states.
It will be interesting to see what happens with the WTO submissions in the dispute. Hopefully Australia will be forthcoming with its submissions there. (The U.S. often posts the questions from the panel, and its answers to those questions, which I find particularly helpful; I'd love to see those here as well.) Any chance the complaints will post theirs?
