CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ To cross the Rubicon within this concept means to search for an effective conciliation of the confidentiality-transparency conundrum, which could finally achieve that the development of the relations between these entities will not be put on hold and will significantly improve the current status quo . The research focuses on the most important interactions between these two concepts, which are causing tensions and considerable impacts on the actions of subjects operating within this field and on outlining the possible procedures when applying transparency in international investment arbitration. Through this assessment it seeks to point out the conflicts which preclude the trouble-free interaction and coexistence of transparency, confidentiality and arbitration and tries to elucidate why international investment arbitration (through the assistance of transparency) can have the credentials to weaken the notion of confidentiality in the course of pending arbitral proceedings. 2. The Curious Case of Confidentiality: A Bleak Probability or the Corner Stone of Arbitration? Although the notion of confidentiality is being assessed from different perspectives in various cases, this has little substance for the establishment of a unified approach of the arbitration world towards this principle. Put simply, the debate about the inconsistency of the case law is indicating wide-ranging regional differences which access the matter from diametrically different perspectives. Even though the focus lies on international investment arbitration, as the public interest dimension flows from the legal status of one of the parties- the state, one cannot omit the fact that transparency and access to information can arise also where a commercial arbitration is at stake. The existence of commercial arbitrations which contain a public interest element originating in the character of the issue, touches upon a topic also closely related to the public and their interest in the res publicae . 8 National assessments towards the existence of confidentiality and possible consequences of its breach are predominantly being shaped by the ex post control conducted by national courts. Whilst confidentiality considerations can be found e.g. also in legislative measures, it is the denotation made by the national courts via judicial rulings that shape the concept of confidentiality and the question of how to balance confidentiality. One can hardly discuss confidentiality in arbitral proceedings without mentioning the seminal decision in Esso/BHP v. Plowman 9 , where the High Court of Australia rendered a judgment according to which no concrete legal basis could be found in the 8 By stating this we imply that although primarily the question of transparency and confidentiality is evolving around the concept of investment arbitration, case law originating in international commercial arbitration can have a certain impact and will be included in the research since it shapes to a great extent the general opinion on transparency application in arbitration. Res publicae considerations can also arise and have important implications in disputes where the matter is evolving around public funds, publicly owned companies or companies where a state is listed as a shareholder. 9 Esso/BHP v. Plowman , 11 ARB INT’L 3, (1995), 231.

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