CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… Whilst answers to questions mentioned above are without doubt a piece of information the disclosure of which is justified by an overriding public interest, pleadings and other documents (expert opinions, evidence, etc.) submitted, produced, gathered or exchanged in the course of arbitral proceedings, by and large will not pass the threshold of the justified interest test. 53 To determine whether public interest requires disclosure of information concerning arbitral proceeding is a prerogative enjoyed by various subjects. This multiplicity of safeguards, at least prima facie , does not generate conflicts between the powers conferred on the various players in this field such as courts, arbitrators or institutions dealing with disclosure applications. The responsibility to handle the interferences between the principle of transparency and confidentiality 54 is being redistributed into various spheres: firstly, the state’s responsibility to assess whether the request is in accordance with the laws providing for such an application for access to information; secondly, the investor’s examination of whether the disclosed information does not cause an encroachment of rights having its origins in the procedural status of a party of the procedures; thirdly , the tribunal’s view on the matter and safeguarding of the due course of the arbitral proceedings; and lastly, the national courts’ scrutiny if requested. The court will have to engage in weighing the legitimate interest in the disclosure of the information with confidentiality of the information presented in arbitral proceedings. Taking into account the dissimilar approaches taken by some jurisdictions, it can be rather difficult to establish a certain expectancy as to whether the court will prefer transparency or confidentiality in that particular case. The best case scenario will comprise the notice of the state to the investor, that it received a request for disclosure pursuant to the national legislative mechanism, enabling the free access to information. The state will name the process undertaken The parties may have duties of disclosure to insurers. The parties must be free to present the award and relevant surrounding circumstances in a public court to either enforce or appeal the award or use it as evidence in another related proceeding. The parties may be obliged to disclose evidence from the arbitration in another proceeding. Evidence of illegal or criminal conduct that should be reported to public authorities may be uncovered during the course of the proceedings. See: C. R. Thomson, A.M.K. Finn, “Confidentiality in Arbitration: A valid Assumption? A proposed Solution!”, Dispute Resolution Journal, May-July 2007, pp. 4, available at: ; last visit: 19 April 2012>. 53 Similar opinions can be seen throughout various studies presented by a number of legal scholars, e.g. as pointed out by A. J. Bělohlávek, ibid supra note 48, pp. 38. 54 At this point one shall emphasize that these principles are far different from each other. Whilst transparency is a reflection of the state’s commitment to democracy, confidentiality is a principle bound with the conception of a parties “friendly” litigation system represented in the form of an arbitration conciliation. Both, however, are in a state of mutual correlation which will eventually lead, in the case of their clash, to a situation where they will be balanced by each other in order to establish which one will prevail.

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