CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… symbols forming the status of modern democracies including e.g. the rule of law or human rights protection. In stricto sensu transparency and accountability are tightened together by the fact that effective public scrutiny can be conducted only in an environment generated by the presence of an impulsive legitimate interest, where the public society is granted legal channels leading to disclosure of information of communal importance. Indeed, the increasing promotion of the transparency principle in conjunction with the proper administration of the competencies vested in the free access legislation safeguard “that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision making”. 46 In investment dispute arbitration, however, the application of standards commonly used when adapting policies in compliance with the transparency criterion, can prove to be substantially dissimilar. Therefore, one could and indisputably also should join the argumentation of experts concluding that the presence of states and state entities as well as issues of a public nature mean that transparency and accountability are beginning to outweigh privacy and confidentiality in importance. 47 Investor-state arbitrations cannot be labelled as conventional international commercial arbitrations since their features have a predisposition to be of a distinctive nature. An arbitration agreement comes into existence as soon as the investor declares his or her irrevocable will to make claims against the host state in arbitration (in the manner offered by the international treaty), and thereby accepts the offer of an arbitration agreement. 48 Hence, it is infeasible to exclude the impact of the investor’s and the state’s perceptions on the question of whether or not to open arbitral proceedings involving foreign investment disputes to the transparency. Investors may fear the disclosure of confidential business information, trade secrets, investment strategies and other sensitive information that could harm their future business, while governments are often reluctant to expose to public view the extent to which narrow interest groups have captured administrative and regulatory structures, fearful of gaining an exaggerated reputation as a poor host for foreign investment. 49 The correlation study taken here is intended to present the interaction between transparency and confidentiality from a somewhat conceptual approach of a public interest concept with the focus on the most significant interactions between these 46 United Nations ESCAP: What is Good governance ; available at: . 47 McLachlan QC, L. Shore, M. Weiniger, International Investment Arbitration. Substantive Principles , (Oxford University Press, 2007), pp. 57. 48 A. J. Bělohlávek, “Confidentiality and Publicity in Investment Arbitration, Public Interest and Scope of Powers Vested in Arbitral Tribunals”, Czech Yearbook of International Law (2011), pp. 26. 49 C. F. Dugan, D. Wallance, N. D. Rubins, B. Sabahi, Investor-state arbitration , (Oxford University Press, 2008), pp. 707.

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