CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ is an aim “to ensure transparency in treaty-based investor-State arbitration so as to enhance the legitimacy of, and to foster the public interest inherent in, treaty-based investor-State arbitration, in a way that is compatible with the disputing parties’ interest in a fair and efficient resolution of their dispute. These purposes shall guide disputing parties and arbitral tribunals in the application of these (UNCITRAL) Rules”. 42 Undoubtedly these proposed changes could be the bridge on the Rubicon which will lead investment arbitration to a transparency enhancing approach. 4. Framing Confidentiality vs. Transparency Relation in Investment Arbitration: Effectus Sequiter Causam? It is rarely the case when a principle of great importance can be grasped within one general definition. The principles of transparency and accountability 43 have to be seen as the cornerstones of good governance (and eventually as well of democracy) which comprehend many different points of view on various levels of understanding. The UN defines the principle of good governance through its general objective of promoting “equity, participation, pluralism, transparency, accountability and the rule of law, in a manner that is effective, efficient and enduring”. 44 Transparency requires that the decisions and actions of those in government are open to public scrutiny and that the public has a right to access such information. 45 Therefore, in extenso , transparency can be regarded as a part of a compilation of all substantial be justified by the exceptions to transparency as provided by the current draft article no.8. United Nations Commission on International Trade Law, Working Group II (Arbitration and Conciliation), Settlement of commercial disputes: preparation of a legal standard on transparency in treaty-based investor-State arbitration, Note by the Secretariat, New York, 6-10 February 2012. Available at: ; last visit: 20 April 2012. 42 Ibid , II. Draft rules on transparency in treaty-based investor-State arbitration, A. General remarks, Structure of the draft rules on transparency, para. 7. However all the draft proposals are still under negotiations since the settlement of these questions is a big step for investment arbitration. For example, it is still being discussed whether the amendments should be made as a separate set of procedural rules or as an addition to the current rules or whether all or only some documents (evidence) should be disclosed in the course of proceedings. Also under consideration is the opt-in or opt-out scenario for the adoption of these rules by the parties. Nevertheless, time and further negotiations will lead to a final outcome setting the standard of transparency application in international investment arbitration. 43 To be accountable, according to the European Ombudsman Professor P. Nikiforos Diamandouros, means to have the duty to provide an account, that is to say, a duty- which may be legal, political, or moral- to respond to questions about a particular matter. The concept of accountability also includes liability to some form of sanction if the performance revealed by the account is considered unsatisfactory. P.N. Diamandouros, “Transparency, Accountability, and Democracy in the EU”, Lecture by the European Ombudsman at the School of Advanced International Studies of the Johns Hopkins University, Bologna, Italy, dated 17 October 2006. Lecture available at: ; last visit: 20 April 2012. 44 United Nations: Governance, available at: http://www.un.org/en/globalissues/governance/. 45 Accountability and Transparency: Essential Principles, Article made available at the Democracy web: ; last visit: 19 April 2012.

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