CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ there are no provisions that could lead to imposing a general duty of confidentiality in arbitration. When assessing the existence of a rule of transparency, by the same token, no duty of ensuring transparency or public interest disclosure exists. 26 The Tribunal agreed that there was a trend toward greater transparency, but it also found that in the context of this dispute, considerations of procedural integrity and “non-aggravation/ non-exacerbation” of the dispute tipped the balance in favor of confidentiality of some of the arbitration proceedings, including the record of the hearing. 27 To make the overview of the opinions complete, it should be mentioned that although most decisions provide for a reconciling approach between transparency and confidentiality, some arrive at a general conclusion that the troubled relation of these principles can be solved only on a case-by-case basis. This was also the situation in Giovanna A Beccaea et al. v. Argentina , were following the assessment regarding the records of the proceedings and the confidential nature thereof, the Tribunal declared that it was necessary to assess the nature of the particular materials: the Tribunal did not, therefore, adopt any general opinion on this issue. 28 However, this assessment was tailored to foster the particularities of the adjudicated dispute at hand. Although the Tribunal’s Order provides a nuanced approach to confidentiality issues in investment treaty arbitration, the Tribunal appears to accept that the risk of incorrect public impressions arising from the disclosure of party submissions is sufficient to impose restrictions on publication. 29 The logic behind this way of examining the materials is founded on an “individualized approach” where the pieces of information are being evaluated in the light of their character (sensitive, influential, etc.) and the possibility of a negative impact of the disclosure on lawful conduct of the arbitral proceedings in accordance with the governing rules. 30 available at: ; last visit: 19 April 2012. 26 See: Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania (ICSID Case No. ARB/05/22), Introductory Note to Three Procedural Orders available at: , pp. 152. 27 C.F. Dugan, D. Wallance, N.D. Rubins, B. Sabahi, Investor-State Arbitration , (Oxford University Press, 2008), pp. 143 . 28 Giovanna A Beccaea et al. v. Argentina, ICSID Case No. ARB/07/5, Procedural Order No. 3, para. 111, available at: < http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=sho wDoc&docId=DC1390_En&caseId=C95>; last visit: 19 April 2012. 29 As the Tribunal states in para.102 of the Order, indeed, based on their function and aim, pleadings and memorials of a Party often present a one-sided story of the dispute. Their publication therefore carries the inherent risk of giving an incorrect impression about the proceedings. See: Ibid supra note 27, para. 102. 30 E.g. in the case S. D. Meyers v. Canada, the tribunal held that there was no general principle or guideline for the protection of information in investment arbitration. However, the submissions were regarded as not underlying the disclosure, which reinforced their confidentiality. NAFTA Arbitration under the UNCITRAL Arbitration Rules between S. D. Meyers, Inc. (Claimant) and Government of Canada (Respondent), Procedural Order No. 16. Available at: ; last visit: 19 April 2012.

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