CYIL 2012

ZUZANA JAHODNÍKOVÁ ȃ ĽUDOVÍT MIČINSKÝ CYIL 3 ȍ2012Ȏ regarded, especially in international arbitration, as principles which are in a state of mutual correlation. At first glance it indeed might be a truthful assumption, since the notion of confidentiality is detached from any consistent practice of arbitral tribunals or national courts. However, what might appear on the surface does certainly impose a need for an improvement of the current status quo, since the problems flowing from the transparency vs. confidentiality correlation will certainly have an increasing tendency. As some authors argue, the most promising avenue to a uniform confidentiality rule would be a conference on that subject composed of delegates from the leading arbitral institutions. 73 The central aim would be to compose a uniform rule that could in a short term gain legitimacy and respect. At the same time these rules would have to take into consideration the principle of transparency and the existence of national laws which give effect to this principle by offering legal channels for the request of certain information. For arbitral institutions, there will be the task to continue to develop and promote confidentiality under their respective auspices, 74 which would as well instruct the parties on the possibilities of the public to gain access to certain matters concerning the notion of their arbitration. When looking at situations where there are no express confidentiality obligations in investment treaty arbitration, the party making a request for confidentiality should have to substantiate on a balance of probabilities that, if confidentiality is not maintained, there is a real risk of aggravation of the dispute or that the disclosure will compromise the integrity of the arbitration proceedings. 75 Especially when considering the publication of an investment arbitration award, it has to be observed that there will be a predominant overriding public interest in disclosing the outcome and therefore the transparency aspect will have the needed power to trump the notion of confidentiality. 76 75 A. Newcombe, “ Confidentiality in Investment Treaty Arbitration ”, Wolters Kluwer Arbitration Blog (3 May 2010), available at: ; last visit: 19 April 2012. 76 One can argue that the investors cannot preclude the publication of an award made upon a request when an overriding public interest aspect is given. Firstly, the states are bound by obligations flowing from the legal nature of this entity. Secondly, investors are from the commencement of the proceedings familiar with the fact that the counterparty is a legal subject obliged to follow certain limitations and duties and that this legal status can have important implications on the pending proceedings, as well as on their outcome. The publication of an arbitral award would have a beneficial influence on the promotion of arbitration (as well on the promotion of various dispute resolution centers), and would lead to case law development and the establishment of a common practice in international investment arbitration. 73 Ibid supra note 6, pp. 17. 74 Ibid supra note 2, pp. 249.

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