Confidentiality and Publicity in Investment Arbitration, Public Interest and Scope of Powers Vested in Arbitral Tribunals
CYIL - CZECH YEARBOOK OF INTERNATIONAL LAW: RIGHTS OF THE HOST STATES WITHIN THE SYSTEM OF INTERNATIONAL INVESTMENT PROTECTION, Vol. ll, pp. 23-45, A. Belohlavek & N. Rozehnalova, eds., Juris Publishing, Inc., 2011
35 Pages Posted: 10 Oct 2011
Date Written: April 1, 2011
The fact that a state is a party to arbitration does not give the arbitrators the status of public officers or subjects of public law, let alone [public] international law. Arbitration is, above all, a universal procedural mechanism. The principal specifics of investment arbitration become especially apparent in connection with the application of substantive standards.
Confidentiality and publicity/privacy are predominantly procedural issues. Opinions that argue that there exists any global, internationally recognized principle of confidentiality as an intrinsic feature to arbitration are illusory. Standards of confidentiality are subject to important territorial differences that depend on the seat of arbitration. The only universally accepted principle is probably the principle of confidentiality of hearings and the obligation of confidentiality binding on the arbitrators. This applies not only to international commercial arbitration, but also to investment disputes. Even in investment disputes, the parties enjoy a high standard of autonomy when it comes to confidentiality and the disclosure of information. Although we cannot deny the existence of a qualified public interest in investment disputes, this aspect should not influence confidentiality, publicity or the disclosure of information, because the ultimate interest in the disclosure of information in investment protection cases principally benefits the nationals of the host state. The author is of the opinion that these nationals could demand the disclosure of information regarding a particular dispute directly upon the host state and according to the mechanisms that the particular state employs for the purpose of the disclosure of information by the state (legislation regulating access to information, etc.). The author has serious doubts as to the power and the entitlement or authorization of arbitrators to make broad decisions on the disclosure of information concerning the particular proceedings by one of the parties. They cannot assess the interests of a third party (a person who is not a party to the proceedings). This does not apply in exceptional cases where the arbitrators restrict the right of the parties to disclose a specific piece of information in procedural situations that could jeopardize the course and the purpose of the proceedings. This is the only aspect within the power of arbitrators as concerns publicity. Nonetheless, such measures ought to be exceptional and adopted only in cases of specific and imminent danger.
Keywords: taking of evidence, confidentiality, bilateral investment treaty, BIT, host state, investment dispute, implied consent, international law, international treaty, publicity, procedural rules, procedural standards, proportionality, arbitration clause, trade secrets, public interest, arbitration, third
JEL Classification: A12, D63, F02, F14, F21, H10, H70, J78, K12, K33, K39, K40, K41, O19
Suggested Citation: Suggested Citation