CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ access to the documents is connected with democratic nature of the EU institutions, the Regulation 62 intends to give the public the widest access. The exceptions must therefore be interpreted and applied strictly. 63 Nationals can request the disclosure of information regarding a particular dispute (or information concerning general indicators such as the number of pending arbitral proceedings) if they keep the designated procedures as employed by the state and as enshrined in legislation regulation for the purposes of the exercise of free access to information right. 64 National laws may require a party to arbitration to disclose information and materials otherwise covered by a duty of confidentiality arising out of the arbitration. 65 For example, according to the Slovak Act on Free Access to Information 66 this act shall regulate the terms, procedure and scope of free access to information. According to § 3 (1) everybody shall have the right of access to information that the obliged entities have available. Access to information shall be provided without any need to prove legal or other reason or interest for which information is required. 67 Beside the evergreens of the confidentiality areas such as protection of person and personal data and trade secrets, additional limitations on the right to information, as set by Article § 11 (2)(e), 68 this Act entails a provision saying that the obliged body will restrict the access to information, if the information involves friendly settlement, arbitral proceedings and arbitration in general, beside the information about the outcome of the dispute and the decision, only if other legislation does not provide differently. According to the Explanatory Report 69 this provision should safeguard the protection of the Slovak Republic’s interest by subjects which take part in the abovementioned proceedings. 70 62 Regulation (EC) 1049/2001/EC of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, Official Journal L 145/43. 63 D. Chalmers, G. Davies, G. Monti, European Union Law. Cases and Materials 2 nd ed. (Cambridge University Press, 2010), pp. 390. 64 For example, in some cases the legislature confirms rights to nationals and as well to “all” natural and legal persons having an interest in obtaining information resulting from the emanation of a State. Within the territory of the European Union it can be argued that the legitimate interest in information disclosure will be easily proven if relying on equal treatment of EU nationals and if linking the access with situations governed by EU law. 65 State-owned companies or agencies may be subject to disclosure obligations under domestic freedom of information legislation. Confidentiality in Arbitration- 2009 Special Supplement/ ICC International Court of Arbitration Bulletin. 66 211/2000 Coll., Act on Free Access to Information of 17. May 2000. 67 Ibid , paragraph 3 (3). 68 This provision came into force quite recently- on 1 January 2012- and was incorporated into the Slovak legal system through the Act changing the Free Access to Information Act 382/2011. 69 The Explanatory Reports adds that this is in compliance with international agreements regulating arbitration, such as the European Convention on Commercial Arbitration and so on. 70 Explanatory Report, 382/2011 Coll., Act changing the Free Access to Information Act, dated 10 October 2011, reference to point 15.

258