CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ two legal concepts which can have a considerable impact on the actions of subjects operating within this field. Returning to the specifics of investment arbitration, public interest based on access to information has to be regarded as a trigger switch of the shift to a more transparent approach. Regardless of the fact that the public is playing a more or less significant role in the possible disclosure of arbitration related information (e.g. without this interest no questions as to non-disclosure would arise), investment arbitration cannot be seen per se as a procedure which inherently contains the duty to be held publicly. Ergo , the fact that the public possibly could have an interest to obtain some information does not entail in its entirety the credentials to impose the abovementioned obligation and to transform arbitral proceedings into a public court-like procedure. Upon further assessment, let us firstly state that, in general, 50 the public will have the right to be informed about the fact whether an investment arbitration is pending, and, if so, who the parties involved are. 51 By reference to the legitimate and overriding public interest, it needs to be emphasized that in an effort to ensure the application of the principle of transparency in investment arbitration, the veil of confidentiality will be lifted especially in circumstances in which the right to access to information will cover also the composition of the tribunal called to adjudicate the dispute and a description of basic factual circumstances which lead to the generation of the dispute. 52 50 This statement, however, has to be made with a disclaimer saying that certain aspects can influence the following general application in a restrictive manner. However a number of authors reach the same conclusion. For example Balaš suggests that although in the current European practice the duty of confidentiality of the arbitration proceedings has a prevailing character, it should not be perceived in an absolute manner and without any exceptions. The main reason for this is that in the presence of public interest confidentiality can remain unapplied. See: V. Balaš, „Důvěrnost arbitrážního řízení? Ano, ale!“ 6 (1) Právní forum (2004), p. 223-227. 51 As an example of a public disclosure of this information can be seen the ICSID register of pending cases. Link: . 52 Thomson and Finn established a list of probabilities which lead to the conclusion on the question of the disclosure of information (especially facilitated for the circumstances of an arbitration between two private subjects), when the subject matter or the existence of the dispute and/or its outcome must be publicly reported because it may be material to the financial condition of a public company. It is in the following cases: Disclosure of the dispute and the surrounding circumstances or outcome may be required by shareholders, partners, creditors or others having a legitimate business interest in the affairs of one of the parties to the dispute. One of the parties may conclude that its commercial interests and the interests of shareholders and potential shareholders would be enhanced by publicly disclosing information about the dispute and any resulting award and that, accordingly, it has a duty to make such disclosure. One or both of the parties may be subject to obligations (e.g. as a fiduciary) to disclose information in spite of any express or implied term to the contrary in the arbitration agreement. It may not be possible or proper to shield the company’s auditors and outside advisors from the fact and nature of the dispute and the surrounding circumstances and the ultimate award, whether confidential or not.

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