CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… of the prevailing English approach, departing from the notion that confidentiality represents a general duty restricted only by sporadically emerging exceptions. An example of the English take on confidentiality is the decision in Dolling- Baker v. Merrett, 20 where the English Court of Appeal concluded that an implied obligation of confidentiality exists in arbitration. The obligation to preserve confidentiality extended to various documents used in the arbitral process and included the award. Yet, the court acknowledged and left a margin for the existence of certain limitations. 21 The subsequent judgement in Ali Shipping Corp. V. Shipyard Trogir 22 reconfirmed the English take on confidentiality by stating that there is a general obligation of confidentiality by implication of law. An approach that is strikingly diverse from the approach of the first community of jurisdictions is evident in the stringent take of French law on this topic. Looking at the decision in Aita v. Ojjeh, 23 the French court dismissed an action to annul an arbitral award for lack of jurisdiction and penalized the party which sought the annulment for breaching the principle of confidentiality. By this the French court even outran the English concept of confidentiality, since its stringent approach towards the preservation of confidentiality did not even allow for narrowly constructed exceptions which were subject to recognition by English law. 24 Seeing this, the comparison can be made that two communities- Australian, Swedish and United States courts on one hand and England and France on the other- address confidentiality from distinct perspectives as to the existence of a generally inherent duty of confidentiality. Indisputably, the nature of arbitral proceedings in genere excludes e.g. outsiders from being present during the proceedings, or from obtaining any evidence, submissions or orders produced, gathered or submitted in the course of the litigation. This concept, provided by the existence of the core features of arbitration, characterizes to a significant degree a restrained version of confidentiality, as the need to disclose information represented by a legitimate interest pertaining to the public, is not in discord with the abovementioned statements linked to non-disclosure. If the case law touching upon the topic of confidentiality in commercial arbitration is characterized by its inconsistency, can the same be concluded about investment arbitration? What are the effects and limitations of the confidentiality and transparency correlation in this area, if any? Looking at confidentiality in international investment arbitration, the transparency obligations binding on every democratic state may have the right amount of strength to be a tipping point leaning the scale towards a less strict approach when considering confidentiality. In Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, 25 the Tribunal held that pursuant to the ICSID Convention, 20 Dolling-Baker v. Merrett and Another , Law Reports version at [1990] 1 W.L.R. 1205. 21 Ibid supra note 18, pp. 2. 22 Ali Shipping Corporation v Shipyard Trogir [1997] APP.L.R. 12/19. 23 G. Aita c. A. Ojjeh , C. A. Paris, February 18, 1986, 1986 Rev. Arb. 583. 24 See: Ibid supra note 6, pp. 6-7. 25 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22,

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