CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… One might suggest that investment arbitration brings attributes of such a manner which should ensure that arbitration, ipso facto , can reach a praised status of a forum opened to the concept of transparency. What might appear as undesirable is the deprival of public knowledge and information concerning res publicae affairs such as governmental decisions and appropriateness of state actions. The request of UPS in a NAFTA arbitration against Canada in 2002 can serve as proof of the gradual development towards a greater exertion of transparency. In this arbitration a submitted request concerned the application for publicly open proceedings. Following Canada’s agreement, these arbitral proceedings are representing a benchmark in transparent investor-state arbitrations, a climax that will set milestones for the upcoming generations of investor- state litigations. 31 3. Tot capita- tot sensus: The diverse Approach of Arbitral Rules in the Confidentiality Assessment A great amount of scholars already pointed out the inconsistency of the confidentiality standard within the concepts of various Arbitration Rules. 32 T his multitude of opinions and approaches has an impact on the whole concept of arbitration, and as previously demonstrated, as well on the case law within this area. As a matter of fact, whilst some remain silent on this topic (e.g. the ICSID Rules, UNCITRAL Rules 33 ), some assess the procedures of information disclosure to a great extent. The WIPO Arbitration Rules regulate the disclosure of trade secrets and other confidential information (Article 52), confidentiality of the existence of the arbitration and the disclosures made during the proceedings (Article 73 and 74) and also the confidentiality of the final award (Article 75). It is a complex set of rules according to which a party invoking the confidentiality of any information it wishes to or is required to submit in the arbitration, including to an expert appointed by the tribunal, shall make an application to have the information classified as confidential by notice to the tribunal, with a copy to the other party. Without disclosing the 31 Ibid supra note 27, pp. 707. 32 At this point we will therefore name only a few of the Rules and their approach towards confidentiality. Other studies exploring the concept of confidentiality through the impetus of Arbitral Rules can be found e.g. at: C. G. Buys, “The Tensions between Confidentiality and transparency in International Arbitration”, T he American review of International Arbitration , vol. 14 (2004). 33 These rules provide only for the privacy of the proceedings (Article 25.4 of the 1976 UNCITRAL Rules, Article 28.3 of the 2010 UNCITRAL Rules, Article 62 of the ICSID Rules) and for the publication of the award (Article 32.5 of the 1976 UNCITRAL Rules, Article 32.5 of the 2010 UNCITRAL Rules, Article 48.4 of the ICSID Rules). For example also the Swiss law applying to the parties of arbitration does not contain an express duty of confidentiality. The Swiss Act on Public International Law remains silent on this topic. However, in general it can be observed that some authors argue that there is an implied obligation, under the agreement to arbitrate, to respect the confidentiality of the arbitration and that there is a relatively high standard of confidentiality protection in Switzerland. See: N. Radjai: “Confidentiality in International Arbitration: Brief overview of the position in Switzerland and further reading”, 27 ASA Bulletin 1/2009. Available at: ; last visit: 20 April 2012.

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