CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… effective manner, having regard to the complexity and value of the dispute. Upon the request of any party, the arbitral tribunal can make orders concerning the confidentiality of the arbitration proceedings or of any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information. 37 As this demonstrative review of arbitration rules has shown, the approach towards confidentiality differs quite substantially with every set of rules. One of the first thoughts that may strike every researcher studying the topic of confidentiality will be that evolving around the idea of why the topic of confidentiality is not regulated in a more consistent manner. Taking into account that e.g. the ICSID Convention omits to regulate confidentiality, it has to be stated that this status quo will certainly cause a higher level of confidentiality concerns as new transparency related questions will emerge. As a matter of fact some dispute settlement bodies are already embracing the idea of higher transparency standards. For example, the arbitration regime established under Chapter 11 of the North American Free Trade Agreement (NAFTA) has given, as some authors conclude, rise to transparency policies of relative refinement and influence. 38 Due to the tendency of opening the hearings of tribunals constituted under Chapter 11, it comes as no surprise that publication of an award enjoys as well a positive approach towards transparency. Where Canada or the United States are the disputing party, either Canada, United States or a disputing investor that is a party to the arbitration may make an award public. 39 A recurring strong link to the transparency element can be seen in the ICSID option to transmit some hearings live via an internet live-stream feed. 40 This is undoubtedly an interesting incentive to other dispute settlement centers, states and investors to reconsider if in some cases the public-friendly approach towards hearings would not foster positive changes throughout the arbitration world. A substantial shift in the current status quo may be achieved under the auspices of the United Nations Commission on International Trade Law’s Arbitration and Conciliation Working Group in the near future. This group is currently drafting and submitting for a broader discussion far reaching changes to the existing perception of confidentiality in arbitral proceedings between states and investors. By suggesting that the arbitral awards, notions of arbitration and hearings should be public, 41 there 37 2012 ICC Rules, Article 22 (3) Conduct of the Arbitration. 38 J. J. Coe, Jr., “Transparency in the Resolution of Investor-State Disputes- Adoption, Adaptation, and NAFTA Leadership”, Kansas Law Review, vol. 54 (2006), pp. 1339-1340. On the dispute resolution under Chapter 11 and selected cases decided under this Chapter please see: P. Šturma, Mezinárodní dohody o ochraně investic a řešení sporů, 2nd ed. (Linde Praha, 2008), pp. 124-125. 39 North American Free Trade Agreement, Chapter 11, Annex 1137.4, Publication of an Award. 40 This is predominantly the case where the access to a hearing was made available pursuant to Article 10.21.2 of the Dominican Republic-Central America-United States Free Trade Agreement, which provides for transparency in arbitral proceedings. 41 Whilst hearings should be public unless otherwise decided by the arbitral tribunal, after consultation with the disputing parties, arbitral awards can be made public unless the refusal of the disclosure cannot

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