CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ when advancing the request in the terms of justness, competence, valid reasons underlining the existence of the legitimate interest, etc. When examining closer the legal status and sovereignty, it might be argued that a state is not limited by the notification duty. However, as a party of the arbitral proceedings, the state can launch an attempt to disclose information only after the investor will get a certain fair chance to analyze the extent of disclosed information in order to assess whether sensitive information including intellectual property rights, business activities, trade secrets or other sensitive information, will not be disclosed without a prior notification. In the case of a disagreement, the parties may refer the question to the tribunal in order to seek clarification in accordance with a best practice axiom. The tribunal, upon the consent of the parties, can give a ruling on the extent of disclosed information and on other auxiliary questions inherent in the request to make accessible specified information. This is, however, subject to a restriction originating in the presumption that the tribunals can make these decisions only in cases when the disclosure of specific information could affect the continuance of proceedings to such an extent which would aggravate the decision making and affect the process for which the arbitrators, upon the parties’ mandate, are responsible. As some authors are emphasizing, it could be legitimate to doubt whether a tribunal is authorized to make decisions on the confidentiality duties of the parties, as well as- conversely- on the obligation to disclose any information, unless such authorization is either incorporated in the agreement of the parties or in the provisions and rules applicable to the particular proceedings in the seat of arbitration. 55 However the role of the tribunal in the process of safeguarding the course of the proceedings cannot be belittled or disregarded, since the parties of the dispute referred their case to designated arbitrators in order to put an effective end to their disagreement. Although this system lacks a clear procedural guideline and possible redress for the natural or legal person requesting the disclosure, the state is offering the possibility of the national courts’ scrutiny. 56 Taking into account that the state will submit to the court that it followed the orders of the tribunal, this might result in a tense divergence between national and arbitral law. The international practice has more or less a uniform approach to the role of arbitrators in commercial arbitration, by which they are not regarded as guardians of the public interest. 57 In addition, arbitrators are ethically bound to preserve this confidentiality unless otherwise required by law. 58 55 Ibid supra note 48, pp. 39. 56 The mater will not be only in the purview of the court hearing the claim of the applicant, whose request for disclosure was rejected by the state, but the matter leaves the possibility open for follow-up injunctions of the investor who will object to the disclosure of information and claim an alleged breach of the confidentiality principle. 57 Ibid supra note 48, pp. 36 and N. Blackaby, “ Public Interest and Investment Treaty Arbitration” in A. J. van den Berg, Permanent Court of Arbitration, International Commercial Arbitration: Important Contemporary Questions , (Kluwer Law International, 2003), pp. 355. 58 K. Noussia, Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position Under English, US, German and French Law (Springer, 2010), pp. 9.

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