CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… There is no better way to conclude considerations on confidentiality and transparency interferences than by quoting the decision in Giovanna A Beccaea et al. v. Argentina: “In the light of the above considerations, whilst the Tribunal shares the view that transparency in investment arbitration shall be encouraged as a means to promote good governance of States, the development of a well grounded and coherent body of case law in international investment law and therewith legal certainty and confidence in the system of investment arbitration, it also believes that transparency considerations shall not justify actions that exacerbate the dispute or otherwise compromise the integrity of the arbitration proceedings. Further, transparency considerations may not prevail over the protection of information which is privileged and/or otherwise protected from disclosure under a Party’s domestic law.” 77 Hence, every concept bearing the idea of separating transparency and arbitration, in order to achieve entirely independent and confidential systems, has to be regarded ab initio as erroneous. The frictions caused by the interactions of these systems are proving that every attempt to coordinate their interferences via strengthening their independence is an insufficient mean. Therefore transparency in international arbitration has become a valid assumption which has the credentials to muddy the (Rubicon) arbitration waters from a new perspective.

77 Giovanna A Beccaea et al. v. Argentina, ICSID Case No. ARB/07/5, Procedural Order No. 3, para. 72, available at: < http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=sho wDoc&docId=DC1390_En&caseId=C95>; last visit: 19 April 2012.

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