TRANSPARENCY AND CONFIDENTIALITY IN INVESTMENT ARBITRATION

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TRANSPARENCY AND CONFIDENTIALITY

IN INVESTMENT ARBITRATION

Thesis

submitted in partial fulfilment of the degree requirements Master of Laws

University of Amsterdam Amsterdam Law School

Program: International and European Law Track: International Trade and Investment Law

Presented by Supervisor

Eveniia Startsun, Vid Prislan

student number 12353175 dhr. mr. dr.

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that are often demanded from States and, on the other side, it is one of the strands in corporate responsibility for private parties. Unlike judicial dispute settlement, arbitration is viewed to be inherently more confidential and less prone to transparency, which is a risk for legal certainty and confidence in the system. Moreover, investment disputes frequently raise public interest concerns, not only because one of the litigating parties is a public entity - a State, but also due to the fact that subject matter of the dispute routinely revolves around governmental measures.

Confidentiality, on the other, hand is traditionally cited as one of the main reasons to recourse to arbitration over the other dispute settlement mechanisms. It is said to contribute to depoliticizing the process, where one of the participants unavoidable has greater power and influence, and it might put the parties more at ease and motivate them towards greater degree of cooperation, as they will be more comfortable with disclosing more information, knowing that they fully control access to it.

Both notions have substantive and procedural aspect to them, meaning that they may act as governing principles not only with regard to accessing information, provided by the parties in litigation process, but also guide the process of cooperation and publication of relevant policies and ect. In my research, I would like to only focus on the former manifestation of the principles, as, to my mind, it is within their application in dispute settlement, where they have been the most affected by the recent trend towards greater openness and their correlation might seem problematic. In other words, this work will only examine procedural transparency and procedural confidentiality.

It becomes all the more interesting, if we take into account the variety of legal frameworks, that the parties can choose to govern the litigation. From institutional mechanisms, like ICSID and UNCITRAL, to regional instruments that might not even be developed primarily for the investment protection and international agreements of varying scale. In my work, for the purposes of a more structural and clear analysis, I considered institutional rules and major regional players (e.g. USA, Canada, EU). As this work makes as its goal to give more of passing overview, I feel it would be overwhelming to go into greater detail with BITs. What is more, BITs for the most part tend to omit the questions of

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transparency and confidentiality except for, maybe, a couple of outstanding more recent examples that were used in this work.

In the legal instruments, that were chosen for my research, I have investigated the way, in which the concepts of transparency and confidentiality are set forth and tried to review the weight and importance of those provisions in their respective frameworks.

Methodology and structure of the research.

As discussed above, the research examines procedural transparency and procedural confidentiality in investor state arbitration. The purpose of the research is to focus on describing and explaining the concepts, as they are reflected in a number of legal instruments that fully or in part concern to investment protection and investor state dispute settlement, and if there is any tension between the two concepts – to analyze that tension.

To achieve the purposes of the research, I have resorted mainly to primary legal sources and in some cases, where it supported the argument, jurisprudence. As my work is more descriptive in nature, I have also used a number of secondary literature on the topic to accomplish a greater overview.

The said overview is structured around the key aspects that are usually included in the notion of transparency: 1) publication of any information regarding the case and the award itself (details on the commencement of proceedings, access documents during the proceeding and the final award); 2) amicus curiae briefs (third party submissions); and 3) access to the hearings. Confidentiality in this context is examined as exceptions to the transparency regime (which is often the default regime as will be discussed further).

This work includes 4 chapters. Chapter 1 is dedicated solely to the ICSID Convention and its supporting documents and discusses the notions of confidentiality and transparency separately. Chapter 2 goes into prominent non-ICSID mechanisms: UNCITRAL framework, Mauritius Convention, New York Convention 1958 and work of International Bar Association. Chapter 3 focuses on international investment agreements, in particular NAFTA, CETA and CPTPP. In conclusion, Chapter 4 generalizes the evolution of the concepts and offers suggestions as to how we might possibly explain their development.

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CHAPTER 1: Current context under ICSID Rules

Disputes that end up in investor-state arbitration are predominantly settled under the ICSID Convention on the Settlement of Investment Disputes between States and Nationals of Other States2, that together with other ICSID Rules was amended in 2006 to reflect a more transparent procedure. Generally, it is worth mentioning that ICSID regulations are exceptional in that sense that they were created specifically for arbitrating investor-state cases. Even before the 2006 alterations, they already included greater transparency and openness of the procedure, compared to the other larger investment treaties, most of which were introduced, in the first place, for the use in commercial arbitration3 (excluding BITs naturally, but e.g. UNCITRAL, New York Convention 1958).

In general, parties have quite a high degree of discretion deciding the extent of transparency and confidentiality4. Because there is “no general presumption of confidentiality or transparency” with respect to the parties, they may customize the ways and volumes in which the documents are disclosed if disclosed at all. To do this, parties often enter into additional agreements, where they discuss what information needs to be protected, what documents can be made available to the public and what stages of the proceedings can be broadcasted and in what form.

Furthermore, there are several sets of rules applicable in ICSID to other participants in the dispute and to the process itself. First of all, the tribunal looks at the relevant treaty, or contract law or other source that contains the consent of the parties to arbitrate the dispute - such instruments nowadays often include clauses on confidentiality and transparency and are usually listed in the first procedural order. By agreement, the disputing parties may decide to apply other external sources, as for instance, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, that describe a more practical side of the process in extreme detail, mitigating logistical difficulties.

Where the parties fail to reach an agreement on the scope of transparency and confidentiality, they can petition these matters to the tribunal. Arbitrators then have several

2

Soloman Ebere and Blerina Xheraj, 'Nine Years Later: Investment Treaty Arbitration's Contribution to International Commercial Arbitration' (2014), 25 American Review of International Arbitration 85, 87, citing United Nations Committee on Trade and Development, Latest Developments in Investor-State Dispute

Settlement: IIA Monitor No 1 (March 2011) <http://unctad.org/en/Docs/webdiaeia20 113_en.pdf>, 2 (observing that the majority of cases have accrued under ICSID - 245 cases as of December 2010).

3_{Nathalie Bernasconi-Osterwalder and Lise Johnson, 'Transparency in the Dispute Settlement Process: Country} best practices ' [2011] Bulletin #2 Best practices series

<https://www.iisd.org/sites/default/files/publications/transparency_dispute_settlement_processes.pdf>

4

Official ICSID website < https://icsid.worldbank.org/en/Pages/process/Confidentiality-and-Transparency.aspx

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legal bases to issue a decision: pursuant to Article 47 of the ICSID Convention5 they can issue an order on provisional measures or to Article 44 of Convention6 they can cite inherent powers to decide to any procedural matters.

Overall, the vast majority of technical and logistics issues in connection to these principles, is settled by the Secretariat, who, in addition to the abovementioned resources, also operates under the ICSID Administrative and Financial Regulations, ICSID Additional Facility Rules and ICSID Arbitration Rules. These sources also contain provisions on duties of arbitrators and tribunal assistants.

The examination of transparency under ICSID (or almost any other instrument, for that matter) can be clearly separated into a number of issues: 1) publication of any information regarding the case and the award itself (details on the commencement of proceedings, access documents during the proceeding and the final award); 2) amicus curiae briefs (third party submissions); and 3) access to the hearings.

1.1. Publication of any information regarding the case and the award itself

Transparency in course of arbitration would not be of much importance if the public is unaware of the case in the first place. Therefore, it is pivotal to lay the foundation for openness from the very onset of the proceedings. Article 36 of the ICSID Convention provides, that to initiate the process of arbitration parties shall submit a written request to the Secretary-General. Upon registration of such a request, the Secretary-General then shall make the information on this request public on the website (the website in turn is managed by the Secretariat)7.

Then, it is equally as important for the general public to be able to access the documents used or issued in course of the proceedings. ICSID Convention, however, does not provide any guidance on this topic: it neither places on the parties any commitment to disclose the relevant documentation, nor does it require to keep the process confidential8. Parties are, consequently, free to make it available to the public unilaterally (this, however, works only for procedural matters - meaning not the awards, but decisions and orders). With

5_{ICSID Rules of Procedure for Arbitration Proceedings (Arbitration Rules), Rule 39} 6_{ICSID Arbitration Rules, Rule 19}

7_{ICSID Administrative and Financial Regulations, Reg. 22(1)}

8_{Nathalie Bernasconi-Osterwalder and Lise Johnson, 'Transparency in the Dispute Settlement Process: Country} best practices ' [2011] Bulletin #2 Best practices series

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regard to the practical issues, ICSID’s Administrative and Financial Regulations to a certain degree provide necessary clarifications. For example, article 22 (2) deals with the actual responsibility to make needed arrangements to publish the material. But overall, practical guidelines are not abundant, leaving some operational questions (e.g. who bears the costs of publishing? are there any time limitations?) unanswered.

The situation is slightly different, though, with disclosure of the awards. Article 48(5) expressly prohibits the Center from publishing the award without the consent of the parties. Interestingly enough, the ICSID framework does not make consent of the parties a condition that needs to be satisfied in every situation, as article 48(5) is limited in two respects9. First of all, this obligation is targeted specifically at the Center and Secretariat themselves and does not prevent the parties from rendering the award public by mutual consent or even by one of them unilaterally10. As observed by Filip Balcerzak and Jarrod Hepburn, it is actually often the case, with the winning party releasing the award. Secondly, as already reiterated before, article 48(5) does not stop the Center or the parties to publish other relevant documentation, as it applies strictly to awards - “the award” does not cover the instruments on procedural matters such as, for example orders or jurisdictional decisions11.

Nevertheless, the Secretariat is under the obligation to “promptly include in its publications excerpts of the legal reasoning of the Tribunal’ in every case12_{”. Such excerpts}

often include substantially the majority of the text of the award13 and provide valuable insights into the logic, followed by the tribunal, and current trends in investment arbitration. It is by no means full transparency, but arguably, it does come close to it.

1.2. Amicus curiae briefs (third party submissions);

Next big issue, often covered by transparency principle, are amicus curiae briefs (briefs, submitted by the “friends of the court”). That is when persons, who are not specifically parties to the case, can lodge with the court some relevant to the dispute information.

9_{Balcerzak, Filip and Hepburn, Jarrod, “Publication of Investment Treaty Awards: The Qualified Potential of}

Domestic Access to Information Laws” (May 29, 2015). Groningen Journal of International Law, Vol. 3, No. 1, 2015, page 150; Available at SSRN: https://ssrn.com/abstract=2611342

10_{World Duty Free Company Ltd v Kenya, ICSID Case No ARB/00/7, Award, 4 October 2006, para 16.} 11_{Schreuer, C, The ICSID Convention: A Commentary (2nd edn, Cambridge University Press, 2009), page 837.} 12_{ICSID Arbitration Rules, Rule 48(4).}

13_{M Meerapfel Söhne AG v Central African Republic, ICSID Case No ARB/07/10, Arbitral Award, 12 May}

2011 (Meerapfel case) - the excerpts were made public in 2013 when it became clear, that neither of the parties had any intention to do it themselves.

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Before the amendments, made in 2006, the ICSID framework provided no guidance in this area, although this silence was not much of an impediment for the panels of arbitrators to accept these submissions. The tribunals could base their decision to accept the amicus curiae briefs on Article 44, which states that “if any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question”14. In other words, this gives the arbitrators a residual power to determine the matters of procedure. A great example is an order in Aguas Argentinas case, where it was decided that “the Tribunal had the power to grant suitable parties the opportunity to make submissions as amicus curiae in appropriate cases and granted the petitioners an opportunity to apply for leave to make amicus curiae submissions in accordance with certain stated conditions”15.

After the ICSID rules and regulations were altered in 2006 to reflect the trend towards greater transparency, written submission by non-disputing parties are now formerly allowed and covered by two provisions - Rule 37 of ICSID Arbitration Rules and Article 41(3) of Additional Facility Arbitration Rules. In accepting such a document, the court shall discuss it with both parties and give each of them an equal opportunity to express their considerations. It is worth noting here, that although the panel is under the obligation to consult the parties, the latter cannot veto the submission16, but they can prohibit the attendance of the hearings by non-parties.

In deciding if the amicus curiae observations should be accepted, the tribunal now has to consider 3 requirements, that were first reiterated in Aguas Argentinas case17:

a) the brief should be of assistance to the tribunal in examining legal or factual issues of the dispute by bringing a new “perspective, particular knowledge or insight”18;

b) the brief should directly pertain to the subject matter of the dispute;

14

ICSID Convention, Regulations and Rules. Washington, D.C. :International Centre for Settlement of Investment Disputes, 2003, Article 44.

15_{ICSID Case no ARB/03/19 (Official Case No) (2006) 21 ICSID Rev-FILJ 342 (Official Citation) IIC 229}

(2005) (OUP reference), para 2.

16_{Saravanan A, Subramanian SR (2016) The Participation of Amicus Curiae in Investment Treaty Arbitration. J}

Civil Legal Sci 5: 201., page 3.

17_{Aguas Argentinas S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v.}

Argentine Republic, ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus curiae, 19 May 2005, note 18 at para 17.

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c) the brief should be submitted by a party with a “significant interest”19

In addition to that, the brief should not “disrupt the proceeding or unduly burden or unfairly prejudice either party”.

In general, such submissions are most often made by NGOs, when the case revolves around environmental or human rights issues, which makes some observations and concerns presented by NGOs, active in these spheres, rather helpful.

1.3. Access to the hearings

Another crucial facet of transparency in the dispute settlement process is openness of the hearings to the general public. Unlike before, the current trend in investor-state arbitration leans towards greater accessibility and slow elimination of a closed-door policy. Such access does not imply, though, that all stages of the hearings will be made equally open: as it will be explained further, there are certain precautions and restrictions when it comes to sensitive or confidential information.

ICSID Arbitration Rule 32(2) sets forth: “Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information”. In practice, this means a reversed approach to the private character, polar to the way the rules deal with publication of awards.

As discussed earlier, consent is a necessary requirement, when it comes to rendering an award public. With open hearings, however, the article is written in such a way that to conduct the proceedings behind closed doors, one of the parties has to actively object20. In effect, this does not present a significant obstacle and most of the hearings, that operate exclusively within the ICSID framework, are still not accessible to the general audience. The situation is more complex when a state, for instance, agrees to arbitrate in an investment

19_{ICSID Arbitration Rules, Rule 37(2)c} 20

De Brabandere, E. (2014). Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications (Cambridge Studies in International and Comparative Law), page 162.

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treaty that provides for open hearings. Quite often hearings are made public in conjunction with accepting submission of an amicus curiae brief21.

Where the process is accessible to the public, the ICSID Secretariat manages relevant practical issues. It organizes a hearing room, where the process may be broadcasted. The broadcast can also be webcast through a video-link if the parties so agree22. In a recent case - BSGR v. Guinea, brought under the ICSID framework, but in conjunction with the UNCITRAL Transparency Rules, a new original protocol with traffic lights23 was instituted: a system of colored signals was used to exclude certain confidential parts from the broadcast.

1.4. Exceptions

As discussed earlier, confidentiality has been traditionally viewed as one of the central attributes of commercial arbitration. Arguably, the same factors, that make it so exceedingly important for the parties in commercial disputes, apply in investor-State arbitration under the ICSID framework. The motivation to keep information under privileged status in commercial arbitration is also the same at least for the party of the investor: general privacy, protected status for trade secrets and insider information, greater party autonomy an efficiency of cooperation (money and time spent), etc. In investment arbitration, though, respondents, who are typically States, also have the need to effectively protect their classified information and governmental secrets that they may disclose within the trial. Generally, this can be done in a variety of ways, like confidentiality agreement between the parties or recourse to applicable national law, but in this chapter I am going to look specifically at the institutional arbitration rules, namely ICSID.

Overall, the principles of transparency and confidentiality can be seen as the two sides of one coin, which makes it hard at times to differentiate the discourse on them. As previously discussed, barring certain limitations parties actually get high degree of freedom to determine these issues between themselves. The fact that the regulation in this domain is vastly insufficient and fairly undetailed gives the parties quite a lot of “wiggle-room”, where they can either settle it themselves or turn to more refined provisions, targeted specifically for that, for example UNCITRAL Rules on Transparency.

21_{For example in Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. The Republic of El Salvador,}

ICSID Case No. ARB/09/17, Award, 14 March 2011, or Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARI3/09/12, 18 May 2011.

22_{Official ICSID website <}

https://icsid.worldbank.org/en/Pages/process/Oral-Procedure-Convention-Arbitration.aspx >

23

Official ICSID website < https://icsid.worldbank.org/en/Pages/resources/ICSID%20NewsLetter/2017-Issue4/Transparency-in-Practice.aspx >

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ICSID was originally established as an arena for dispute settlement, where all the interests and claims of the parties would be methodically balanced and the political concerns would be alleviated24. Confidentiality is, thus, one of the “depoliticising” tools, that makes relationship between a State and a private party more leveled.

In principle, ICSID framework is considered to be more lenient towards the duty of confidentiality than, for example, UNCITRAL25. Above all, it is necessary to mention that there is no general duty of confidentiality, as it was concluded by the tribunal in Metalclad case26, which means that the Tribunal retains the competence to decide on the scope of the duty of confidentiality.

To see how it is in practice, it may be more demonstrative to examine the way the tribunals dealt with confidentiality in two illustrative cases: Biwater Gauff (Tanzania) Limited v United Republic of Tanzania and Giovanna a Beccara and others v. The Argentine Republic.

In both cases the tribunal, first routes its competence in Articles 47 and 39 (1) ICSID Convention and Rule 19 ICSID Arbitration Rules, all of which regulate provisional measures and procedural orders as discussed above27. In Beccara case the court cites the conclusions of Biwater Gauff, where it was ruled that “in the absence of any agreement between the parties on this issue, there is no provision imposing a general duty of confidentiality in ICSID arbitration, whether in the ICSID Convention, any of the applicable Rules or otherwise. Equally, however, there is no provision imposing a general rule of transparency or non-confidentiality in any of these sources”28. In other words, in view of absence of any general obligations regarding confidentiality or transparency, it is up to the arbitrators to decide the matter in each case individually. This approach to the principle of confidentiality is referred to by some sources as “ad hoc approach”29

.

24_{Cf. Shihata, I. F. I., Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and}

MIGA, 1 ICSID Review 1 (1986), page 5.

25_{CYIL - CZECH YEARBOOK OF INTERNATIONAL LAW: RIGHTS OF THE HOST STATES WITHIN}

THE SYSTEM OF INTERNATIONAL INVESTMENT PROTECTION, Vol. ll, pp. 23-45, A. Belohlavek & N. Rozehnalova, eds., Juris Publishing, Inc., 2011, page 32.

26_{Metalclad Corporation v Mexico, Award, ICSID Case No ARB(AF)/97/1, at para 13}

27_{Beccara and ors v. Argentine Republic, ICSID Case No. ARB/07/5; IIC 418 (2010), procedural order no 3}

(confidentiality order) (January 27, 2010), para 62-63; See also Biwater Gauff (Tanzania) v. United Republic of Tanzania, icsid Case No. arb/05/22, Procedural Order No. 3 (29 September 2006), para 110-111

28_{ibid., para 121} 29

Official ICSID website < https://www.iisd.org/itn/2010/03/10/icsid-tribunal-applies-ad-hoc-approach-to-confidentiality-in-arbitral-proceeding/ >

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The absence of general duty of confidentiality does not, however, mean that the parties have a so-called “carte-blanche”30 to resort to the principle at their will. The tribunal was specific enough in its ruling that “Depending on the information and documents at stake, different considerations of confidentiality, transparency, public information, equality of the Parties’ rights, orderly conduct of the proceedings and other procedural rights and principles may apply, requiring a differentiated treatment”31

.

The Biwater Gauff order is all the more significant, because it contains quite nuanced and well detailed stipulations on the matter. The arbitrators ordered, that the “general discussion about the case in public”32

is allowed as long as it is not used as some sort of leverage or pressure point between the parties. Publication of the award, meanwhile, is not subject to any confidentiality restrictions (in the absence for the agreement thereto). The same goes for the other instruments, issued by the Tribunal. Restricted generally shall be correspondence between the parties, pleadings and written submissions and minutes and records of hearings.

Of course, we shall remember that tribunals are typically not obliged to follow the legal reasoning of their predecessors. That is a controversial discussion of its own, but this is in fact reflected in the ICSID Convention, where the decision is binding exclusively on the parties. However, it is pointless to deny the importance of the precedent and the countless cases, where the arbitrators chose to heavily rely on the established practice. It should, be pointed out, though, that the above mentioned cases were not exclusively within the ICSID framework - the claims included NAFTA as well. But in practice, rarely does it happen that the parties do not resort to more detailed and specific to the disputes instruments and the claims are arbitrated within a single set of rules.

From the discussion of the case, we may already notice, what kind of documents could the parties prefer to keep private. All the information relating to the proceedings might be divided into 3 categories33: 1) that regarding the commencement of the disputes (e.g. when the request was lodged and who the parties are); 2) that regarding the substantive matter (including all the evidence submitted by the parties); 3) that in the final award.

30_{Andrew Newcombe, ‘Confidentiality in Investment Treaty Arbitration’, Kluwer Arbitration Blog, March 3}

2010.

31_{Beccara procedural order 3, para 89.} 32_{Biwater Gauff procedural order 3, para 30} 33

Buys, Cindy Galway, The Tensions between Confidentiality and Transparency in International Arbitration (May 20, 2003). American Review of International Arbitration, Vol. 14, No. 121, 2003, page 124

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CHAPTER 2: Current context under non-ICSID rules

Despite the fact, that investment arbitration rather often comprises multiple procedural instruments, ICSID framework is conventionally discussed in opposition to other sources. Even through the vast majority of cases are litigated under ICSID Convention and Rules, parties still often do resort to non-ICSID mechanisms. There are various reasons for that ranging from the simple fact, that not all states are parties to the ICSID Convention, to more nuanced and complicated motives specific to priorities of the parties in each investment case.

Out of all the instruments available to the investor and the state in the following chapter I will center my analysis on UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration ('Rules on Transparency'), Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958), United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention) and International Bar Association Guidelines and Rules. I recognise that these sources do not have the same legal effect and applicability, which will be discussed in more detail further. These instruments are widely used and they all regulate the questions of transparency and confidentiality to a greater or lesser degree, which makes it rather interesting to compare them in this discussion.

To make the analysis more structured, this chapter will be divided into parts for each of those instruments where both principles of transparency and confidentiality will be examined together for every framework, unlike in the previous chapter for ICSID. I have previously observed that rights and obligations relating transparency and confidentiality in a lot of instances are rather difficult to divide. Confidentiality is often mentioned as an exception to the default regime of transparency or hidden under the general discretion of the parties. For this reason, it makes more sense to focus on the distinctions in the content of the notions taking them as a parts of the whole in every instrument.

2.1. UNCITRAL Arbitration Rules on Transparency

A greater trend towards transparency resulted in a number of instruments that centred on this issue in a more focused and methodical manner. As a part of this trend in July 2013 , after almost 3 years of deliberation, the United Nations Commission on International Trade Law (UNCITRAL) enacted the set of guidelines to promote openness in arbitration, that came into force a year later in April 2014. It was meant to assist as “a carefully negotiated and widely approved template that can serve as a model for how to conduct investor-State

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arbitrations. This model reflects and is consistent with broader worldwide trends recognizing the importance of transparency as a tool for promoting and ensuring effective democratic participation, good governance, accountability, predictability and the rule of law ”34

.

It was decided that the Rules on Transparency constitute a part of the UNCITRAL Arbitration Rules, but are also possible to use as an independent legal instrument in conjunction with other arbitrational mechanisms35. Generally, they are applicable where arbitration is instituted under the UNCITRAL Arbitration Rules unless the parties have agreed otherwise36 or explicitly “opted-out” from their application (e.g. cited the version of the Arbitration Rules, not amended in 2013)37. Furthermore, the Rules on Transparency may be used as a complementary instrument together with other arbitration rules or in ad-hoc procedures38. This adaptability and flexibility in application has made the Rules all the more easy to use and thus contributed to their proliferation.

However “user-friendly” these Rules are, there are certain restrictions to the departure from them (by the mutual agreement of the parties or in any other manner), once they chose to resort to them. Article 1(3) makes an attempt to prevent significant derogation where it is not allowed by the applicable investment treaty (“The disputing parties may not derogate from these Rules, by agreement or otherwise, unless permitted to do so by the treaty”). Here we can see how the Rules try to narrow the opportunities of the parties to mend and opt out from using the Rules , once they chose to resort to them. Provisions 1(5), 1(6), 1(7) and 1(8) have the same underlying idea - to limit the situations where parties try to evade the objectives of the Rules - with the last two of these Articles meant specifically for the instances of conflict between the Rules and other applicable provisions (including the domestic law). It is interesting that in promoting its mission of openness in the proceedings, the Rules take a rather supporting role to any other provisions with any broader regulations and relevant domestic law outweighing any inconsistencies with the Rules. The Rules explicitly state that they “shall supplement any applicable arbitration rules” and in case of conflict the Rules shall give way to the conflicting relevant sources.

34_{Delivering Justice: Programme of action to strengthen the rule of law at the national and international levels,}

Report of the Secretary-General (2012), A/66/749.

35_{Matthew Carmody, 'Overturning the Presumption of Confidentiality: Should the UNCITRAL Rules on}

Transparency Be Applied to International Commercial Arbitration ' (2016) 19 Int'l Trade & Bus L Rev 96, page 119

36_{UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 2014, Article 1(1)}

37_{Laurence Boisson De Chazournes and Rukia Baruti Dames, 'Transparency in Investor-State Arbitration: An}

Incremental Approach' (2015) 2(1) BCDR International Arbitration Review 58, 103, 65.

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For structural analysis of the substance of the Rules, it make sense to examine first the principle of Transparency in the same stages as with ICSID framework in Chapter 1, namely: 1) publication of any information regarding the case and the award itself (details on the commencement of proceedings, access documents during the proceeding and the final award); 2) amicus curiae briefs (third party submissions); and 3) access to the hearings. This would further allow for a more structured parallel comparison.

2.1.1. Publication of any information regarding the case and the award itself

First issue, addressed by the Rules, is the notification of arbitrators, which within the prior suggested structure can be discussed together with facts regarding the case and the award itself. Pursuant to Article 2, upon the formal commencement of the proceedings (that is when plaintiff party sends to the other party a notice of arbitration), each of them is under the obligation to notify without delay the UNCITRAL repository (as mentioned in Article 8). This notice has itself to be disclosed39 , but at a later stage in the proceedings, following the constitution of the tribunal. However, before that, “to ensure that information on treaty-based investor-state arbitration cases are made known to the interested public40”, the repository shall publish the basic facts on the parties to the case, the field where the dispute has occurred and the treaty to which it relates41.

Remarkably, this treatment of notice of arbitration is rather special42. The right to keep the content of the notice private for a certain period of time before the arbitrators are appointed is somewhat an exception to the way rules on transparency generally perceive the topic, as a lot of them require prompt publication of the notice right away43.

Disclosure of other relevant facts is regulated by Article 3 coupled with exceptions from Article 7 (concepts from this provision will be defined in greater detail further), where there are 3 clearly distinguished classes of documentation, depending on whether its publication is compulsory in general (Article 3(1)) or pursuant to the request from members

39_{UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 2014, Article 3}

40_{Report of Working Group H (Arbitration and Conciliation) on the work of its fifty-eighth session, UN GAOR,}

4 6th sess, UN Doc A/CN.9/765 (13 February 2013)

42_{New UNCITRAL Arbitration Rules on Transparency: Application, Content and Next Steps, August 2013,}

available at

<http://ccsi.columbia.edu/files/2014/04/UNCITRAL_Rules_on_Transparency_commentary_FINAL.pdf>, page 14

43

Nathalie Bernasconi-Osterwalder & Lise Johnson, Transparency in the dispute settlement process: Country best practices (IISD & CIEL, 2011)

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of the public (Article 3(2)) or if its status is decided by the arbitrators subject to the preferences expressed by the parties (Article 3(3)).

First category, subject to mandatory and automatic publication is, an extensive and closed list, that mainly gathers party submissions, instruments issued by the tribunal and transcripts. Secondly, if someone so requests, expert reports and other evidence can be made public as well. Any other documents, status of which is not clarified but Articles 3(1) and (2), are published the tribunal’s discretion. These grouping is quite extensive in promoting the interests of openness of the proceedings.

Article 3 is also instrumental for logistical concerns. The latter include bearing of the publication costs, where the underlying principle is that the public should not have to make any compensation for it44. The Rules take a departure from it where the disclosure is administered at a request to a specific person under Article 3(5), in which case this person is to take on the administrative expenses.

2.1.2. Amicus curiae briefs

The next big point of discussion is participation of amicus curiae. As it was already established, it is hard to overestimate the role of submissions by third parties in rendering the procedure more open and just while shedding light on the issues that might have been missed by the tribunal or are simply out of scope of their expertise45. The standard for these submissions is set in Articles 4 and 5 of the Rules (depending on whether the submitting party is also party to the Treaty).

Both articles provide a non-exclusive46 list of factors that should be taken into consideration by the tribunal when admitting or rejecting a third-party submission, although each of the two articles takes a different angle on managing the issue. Whereas Article 4 (for submissions of non-parties to the Treaty) is rather a detailed set of guidelines, Article 5 (for submission of parties to the Treaty) is of a more lenient and broad character. Both Articles, first, establish the competence of the tribunal to accept the amicus curiae briefs, subject to

available at

<http://ccsi.columbia.edu/files/2014/04/UNCITRAL_Rules_on_Transparency_commentary_FINAL.pdf >, page 16

available at

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discussing the matter with the parties. Furthermore, in both cases it is recognised that the submissions should not “disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party”47

.

Article 4 offers two standards for evaluating the brief: what is the interest of the submitting party in the proceedings? and to what extent does the brief assist the tribunal in administering justice? Article 5, on the other hand, while allowing for a broader set of basis for submissions (e.g. treaty interpretation), puts special emphasis on the fact that the submission cannot support any of the parties “in a manner tantamount to diplomatic protection”. On top of that, amicus curiae briefs under Article 5 are not restricted to written form, unlike the submission of the non-parties to the Treaty.

Overall, the Rules provide for the wide range of third party submission, where they do not hurdle the process and acknowledge the fact that they may affect the positions of the parties in the dispute. For that reason, the tribunal is also under the obligation to arrange for the parties “ a reasonable opportunity to present their observations on any submission by the third person”48.

2.1.3. Access to hearings

The biggest merit of the Rules and innovation is, possibly, the fact that they establish a “default rule” of public character of all hearings49

. It is conceptually new and on principle different from other arbitration regulations, that the parties themselves in absence of other restrictions cannot seek to render the proceedings fully closed to public.

This general principle is restricted by limitations from Article 7 (same safeguards as with publication of information on the case and the award) and logistical issues. The latter are only applicable in a really narrow manner, as Article 6(3) is drafted in such a way as to prevent possible abuse of bureaucratic and administrative hurdles. For the tribunal to have the authority to close the proceedings, these logistical issues need to satisfy 2 conditions: 1) they have to be sudden and unexpected; and 2) the circumstances have to be such so the closure of the hearings is not a choice of convenience but a necessity. Where it is possible, the logistics should be arranged beforehand and if necessary for public access made available online.

47_{UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 2014, Article 4(5) and 5(4)} 48_{UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, 2014, Article 4(6) and 5(5)} 49

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Restrictions from Article 7, namely the confidential status of information and need to secure the “integrity of the arbitral process”, will be examined in greater detail in the following passage.

2.1.4.Exceptions

Principle of confidentiality under the Rules can be best discussed in terms of limitations from Article 7. As mentioned before, this provision confines transparency in two respects: in publishing information relating to the proceedings and in granting public access to the hearings.

Structurally, it can be gathered that Article 7 balances out the transparency principle in two ways: by defining, what information is confidential, and by recognising that the “integrity of the arbitral process” in some cases needs special attention. Protected status is awarded to the categories of facts enumerated in 7(2) and if a specific piece of information lies within the scope of any of these categories is determined individually for every case. This generally falls under the competence of the tribunal with two exceptions.

Notably, both exceptions concern documentation, provided by or concerning security interests of Respondent-states.The latter one may seem particularly broad. In view of this, the Rules essentially narrow the scope of the exceptions and establish the competence of the tribunal to “resist efforts to use improper tactics to shield information from disclosure”50

. As far as the integrity limitation is concerned, it is as well confined only to certain circumstances where release of the facts would be in the way of assembling the evidence or or “lead to the intimidation of witnesses, lawyers acting for the disputing parties, or members of the arbitral tribunal,” or in “comparably exceptional circumstances”51

.

It is noteworthy, that confidentiality under the Rules is mainly protected through the prism of public interest - essential security of states. Arguably, it additionally defines business information (on top of what is already protected by the Treaty). It might still seem much more limiting to the corporate parties whose motivation to seek recourse to arbitration is, among other reasons, based on confidential character of proceedings.

available at

51

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2.2. United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention)

The main reason for the adoption of the Mauritius Convention was to facilitate the process of partaking in application if the UNCITRAL Rules. The latter came into force in 2014 which made them only conditionally applicable to the disputes that arose under investment treaties signed before that (only when parties choose to “opt-in”). This was a serious impediment to the Rules’ mission of establishing universal transparency.

Pursuant to the Mauritius Convention, the Rules shall be applicable to arbitral proceedings under any investment treaty, no matter the date of adoption, and irrespective of of the relevant arbitration framework. For the mechanism to work, one of the two conditions has to be satisfied52:

the Respondent-State and the State of nationality of the Claimant are both unconditional parties to the Mauritius Convention (that is without any reservations)53;

the Respondent-State is an unconditional party to the Mauritius Convention and the State of the Claimant agrees to the application of the Rules54.

As of May 201955, the number of signatories is still rather limited: 23 states have signed and only 5 of those have ratified the instrument. A cause for such slow-paced statistics might be rooted in the fact that the Rules themselves allow for ad hoc application, whereas becoming a party to the Mauritius Convention deprives states of the opportunity to bypass the Rules where it is beneficial for them due to, for instance, possible reputational damages.

2.3. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958)

The New York Convention is the “most significant contemporary legislative instrument' relating to current international commercial arbitration”56

. Commercial arbitration is, indeed, not the same as investor-state dispute settlement, nevertheless due to the same origins and some of the underlying principles, it is not uncommon for the two modes of arbitration to invoke the same procedural instruments.

52_{“Mauritius Convention and UNCITRAL Rules on Transparency in SCC cases”, Arbitration Institute of the}

Stockholm Chamber of Commerce, 2018

53_{United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius}

Convention), 2017, Article 2(1)

54_{Ibid, Article 3(1)}

55_{United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, New York, 2014} 56_{Matthew Carmody, 'Overturning the Presumption of Confidentiality: Should the UNCITRAL Rules on}

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Nevertheless, in spite of the central role in regulating the status of the arbitral awards, the New York Convention does not go into much detail regarding confidentiality or transparency. While focusing, for the main part on the issues of recognition and enforcement, it mainly disregards those principles.

Its pivotal objective is uniformity. This legal instrument only seeks to achieve it by establishing some basic and common for every state standards, on which parties could rely for processing the information in arbitration awards57. This puts the practical effectiveness of the New York Convention dependent on national legislation58.

Overall, this particular instrument, though widely-used and accepted, does not itself contribute to general trend of increasing openness in investor-state arbitration.

2.4. International Bar Association Guidelines and Rules

Where the international community acknowledges its weak points, it seeks to compensate for them accordingly. Whereas the universal and binding solutions are rarely an option, it does not mean that there is no possibility to “iron out difficulties”59. The International Bar Association (IBA) is one of the institutions that made an attempt to smooth over some of the more controversial and less regulated issues in arbitration. The IBA Arbitration Committee established the Task Force on Counsel Conduct in International Arbitration (the ‘Task Force’) in 2008 and confided it with the task of uniting possibly conflicting rules and norms relating to different aspects in commercial arbitration.

IBA Rules combine within themselves foundations from both civil law and common law traditions, which makes their use all the more versatile and wide-spread with institutional arbitration, as well as with ad hoc proceedings60. In that they contribute to overcoming the gap between the parties from different legal backgrounds.

IBA offers several sets of guidelines and rules, that are not binding in character, but are meant to serve as an additional source for practitioners and arbitrators to alleviate potential confusion in view of great variety of frameworks and mechanisms. Their role is supposed to be supplementary and parties can chose to adopt any part of the guidelines separately or select them to govern the proceedings in their entirety. They can be applied to

57_{J van den Berg, The New York Arbitration Convention of 1958 (Kluwer Law International, 1}st_{ed, 1981)} 58_{Matthew Carmody, 'Overturning the Presumption of Confidentiality: Should the UNCITRAL Rules on}

59_{Anna Magdalena Kubalczyk, “Evidentiary Rules in International Arbitration – A Comparative Analysis of}

Approaches and the Need for Regulation”, in Groningen Journal of International Law, vol 3(1): International Arbitration and Procedure, 2015, page 96

60

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various stages of the arbitral proceedings, namely in the present context it makes sense to take a closer look at:

 Guidelines for Drafting International Arbitration Clauses (2010);

 Rules on the Taking of Evidence in International Arbitration (2010);

 Guidelines on Party Representation in International Arbitration (2013);

 Guidelines on Conflicts of Interest in International Arbitration (2014). 2.4.1. Guidelines for Drafting International Arbitration Clauses (2010)

These set of provisions is “designed to help achieve effective arbitration clauses which unambiguously embody the parties’ wishes”61. At paragraphs 60-65 it explicitly recommends that the matters of confidentiality, if important to the parties, should be addressed in their arbitration clause.

2.4.2. Rules on the Taking of Evidence in International Arbitration (2010)

As claimed in their title, this set of rules is targeted specifically at collection and submission of evidence for the tribunal and, compared to other IBA sources, they mention the privileged status information more often, though it is still difficult to say that much guidance is offered on the topic.

It is noteworthy, however, that these guidelines provide classified standing to “any Document submitted or produced by a Party or non-Party in the arbitration and not otherwise in the public domain”62

. In this scenario, tribunal has the additional authority to issue any required orders to further specify the conditions for protection of the information.

Privileged status of information is also acknowledged in paragraphs Article 9(2) (b) and (e), where they are presented among rationales for denying a request to produce documents. Nonetheless, it is not further explained what categories of information can have this protection and in the end it is within the discretion of the tribunal to allow the party withhold the information or order to produce it. It has been justly noted63, that this may give of the parties unfair advantage, where the Guidelines do not account for a solution to this conflict.

61_{IBA, Guidelines for Drafting International Arbitration Clauses, 2010, foreword} 62_{IBA, Rules on the Taking of Evidence in International Arbitration 2010, Article 3}

63_{Anna Magdalena Kubalczyk, “Evidentiary Rules in International Arbitration – A Comparative Analysis of}

Approaches and the Need for Regulation”, in Groningen Journal of International Law, vol 3(1): International Arbitration and Procedure, 2015, page 103

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2.4.3. Guidelines on Party Representation in International Arbitration (2013)

Though these particular provisions do not address the issues of confidentiality nor transparency directly, they do make the reference to the principals of confidentiality and transparency. In general, these rules are “inspired by the principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense”64

. On several occasions there is a mention of “countervailing considerations of confidentiality and privilege”65

, that should be kept in mind when, for example, making correction to prior submissions to the tribunal.

2.4.4. Guidelines on Conflicts of Interest in International Arbitration (2014)

These Guidelines take closer focus on common tests for determining possible factors that affect impartiality and independence, arbitrators (or other actors), and if they should disclose them (e.g. conflict of interest). They have been getting wider and wider acceptance and present a highly respected supplementary source, but as it have been pointed out, their application is not without a challenge, where the tribunals (especially institutional) have met these rules with a share of “agnosticism”.66

In general, even though there is no immediate and explicit regulation on the matter, I would say, that these Guideline contribute to the principle of transparency as a part of a bigger picture, where the lack of uniformity and harmonization and uncertainty about the necessary level of disclosure67, raises not only to theoretical concerns. For instance in Tecnimont case the parties had to face millions dollars of loss and annulment of carefully drafted 400-page award.68

By and large, these sets of Guidelines are exceedingly generic and abstract to become a universal solution for the outlined problems, and regulate transparency and confidentiality in particular. They often appeal to general concepts (e.g. goodwill, good faith), without loading them with specific and defined content, which on the one hand makes application of

64

IBA, Guidelines on Party Representation in International Arbitration, 2013, preamble

65_ibid

66_{Margaret Moses, ‘The Role of the IBA Guidelines on Conflicts of Interest in Arbitrator Challenges’, Kluwer}

Arbitration Blog, November 23, 2017 available at http://arbitrationblog.kluwerarbitration.com/2017/11/23/role-iba-guidelines-conflicts-interest-arbitrator -challenges/

67_{Alexis Mourre, ‘Conflicts of Interest: Towards Greater Transparency and Uniform Standards of Disclosure?’,}

Kluwer Arbitration Blog, May 19 2009, available at

http://arbitrationblog.kluwerarbitration.com/2009/05/19/conflicts-of-interest-towards-greater-transpar ency-and-uniform-standards-of-disclosure/

68_{Tecnimont (SA J&P Avax SA v. Société Tecnimont SPA, court of appeal of Paris, 12 February 2009, Rev. Arb.}

2009.186, note Clay). The chairman of the Tribunal, well respected representative of one of the major law firms, failed to disclose the certain facts, affecting the case, that nevertheless did not exist at the time, when the dispute only started.

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these provisions easier for the parties from different legal backgrounds, but also challenging for the arbitrators in each particular case, especially when it concerns broader categories, like legal privilege.

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CHAPTER 3: Current Context under International Investment Agreements

Being one of the “hot topics” in international law, transparency has found its way further to a variety of international agreements that relate to investment protection, where greater openness is meant to compensate for the absence of a checks and balances system at the international plane69. Evolution of the notion of transparency (and shift of the focus from confidentiality) in investor-state dispute settlement (ISDS) does not happen in separation from IIAs.70 These have been slowly but steadily coming to reflect the new dimensions of the transparency and confidentiality.

Here it is important to note that transparency obligations in IIAs do not necessarily revolve around the ISDS process, but rather address the conduct of the host-States, home-States of investors or investors themselves. That being said, transparency provisions in IIAs are increasingly state-centered to alleviate potential concerns, an investor might have. For example, multiple bilateral investment treaties (BITs) impose the duty to promptly disclose any laws, regulations, procedures, and administrative rulings of general application that relate to the content of the respective Agreement71. The details and scope of this obligation may vary in relation to the exact addressees (it can be directed at all the actors, or just at host States), presence of any limitations or safeguards (e.g. qualification by expression “to the extent possible72”), or their voluntary or mandatory character, among others.

Accordingly, IIAs often offer mechanisms to enforce obligations on transparency, which might require various degrees of compliance. These range: from non-binding declarations to cooperate73 and exchange information to binding commitments to publish certain facts, answer to requests74 and consult the other party75.

As far as ISDS is concerned, it can be noted that originally transparency was not the topic of concern for arbitration clauses in IIAs and the proceedings in general were envisaged as confidential as possible76. However, as previously discussed, insufficient transparency considerations are problematic in investment arbitration, where one of the parties is not a private party but a state and disputes often involve public sectors and welfare interests. This

69_{Stephan Schill, ‘Transparency as a Global Norm in International Investment Law’, Kluwer Arbitration Blog,}

September 15, 2014

70_{UNCTAD; "Transparency - UNCTAD Series on Issues in International Investment Agreements II", 2012,}

page 11

71_{Panama–United States FTA, 2007, Article 18.2; Finland–Guatemala BIT, 2005, Article 15} 72_{Azerbaijan–Estonia BIT, 2010, Article 2; Azerbaijan–Croatia BIT, 2007, Article 3} 73_{Canada–Peru FTA, 2008, Article 19}

74_{ASEAN–China Agreement on Investment, 2009, Article 19; Rwanda–United States BIT, 2008, Article 11} 75_{China–Colombia BIT, 2008, Article 15}

76

UNCTAD; "Transparency - UNCTAD Series on Issues in International Investment Agreements II", 2012,

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has led to a greater number of transparency-related arbitration clauses in more recent IIAs, that either address the matter directly themselves or cite framework with an established approach to transparency and confidentiality (ICSID, UNCITRAL).

The biggest novelties in IIAs occurred with regards to public access to the hearings, documents and admission of amicus curiae briefs. The earliest adherent to this mode were the United States with their Model BIT (2004)77. Besides Article 11, which is more of a provision aimed at a host State, it targets those points and defines conditions for submissions by the third parties78 or publication of information on the case and relevant documents79. Notably, the US Model BIT makes references both to New York Convention and to UNCITRAL Arbitration Rules, but that said, it does not rely fully on those and itself contains detail-oriented and thorough (compared to the majority of BITs at the time) regulations.

Without going too in depth, this trend got further reflected in a number of BITs: for instance, transparency of the arbitral proceedings is represented in Australia–Chile FTA80, CAFTA–DR81 and more comprehensive approach to amicus submissions can be found in Canada-Jordan BIT (2009)82, Canadian Model BIT, Canada–Peru BIT (2006) and the United States–Uruguay BIT (2005).

If we are talking about multilateral investment agreements, for instance of the regional scale, it would be helpful to briefly examine concepts of confidentiality and transparency on the biggest or the most notable examples: North American Free Trade Agreement (NAFTA), The Comprehensive Economic and Trade Agreement (CETA), and The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

3.1. NAFTA

In 1994 this trilateral agreement became a true game-changer in protection of foreign investments and investor-state arbitration, by uniting interests of the United States, Canada and Mexico and establishing in Chapter 11 arbitration as the main way to resolve any disputes under the agreement83. In general, it could be said that the principle of transparency are woven through virtually all forms of interaction between the parties, where it aims at

77_{Though Model BITs are not comparable in their use and value to the sources in force, it might be interesting}

to consider them for a greater understanding of the context and underlying trends.

78_{US Model BIT, 2004, Article 28(2) and 28(3)} 79_{ibid, Article 29}

80_{Australia–Chile FTA, 2008, Article 10.22}

81_{the United States–Dominican Republic–Central America FTA (CAFTA–DR), 2004,, Article 10.21} 82_{Canada-Jordan BIT, 2009, Article 39}

83

Legum, B. (2002). Innovation of Investor-State Arbitration under NAFTA. Harvard International Law Journal, Volume 43, Issue 2, pages 532-533

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sustaining clarity of the measures administered by all Parties that should not hurdle free trade84. In this regard, transparency is rather viewed as an instrument of prevention of disputes (consultation for conflict resolution are obligatory for the governments) as opposed to being a point of individual focus in the proceedings themselves.

This has led to NAFTA (despite being more extensive than a typical BIT) still not being particularly precise on the matters of confidentiality and transparency, as applied specifically in arbitration. Hence, occasionally, in spite of absence of general duty of confidentiality, NAFTA is still sometimes gets called out for “obsessive secrecy”85. The situation is further complicated by the fact that the contracting states have different priorities when it comes to making information available to the public.

As provided for by article 1137(4), it is entirely within discretion of the parties to disclose any information in any manner they deem appropriate, provided they reach a mutual consent on the matter86. However, generally, Canada and the US are more open to publishing any award, whilst Mexico usually discloses awards pursuant to the relevant arbitration rules on the case by case basis87.

Remarkable and often cited case, in this regard, is Metalclad, where the tribunal ruled there is no duty of disclosure, nor there is any explicit limit to the freedom of the parties to make certain facts public. In light of this the conclusion, that was reached by the arbitrators is all the more interesting: the panel took the side of Mexico, who wanted to keep the proceedings confidential, and maintained that “ it would be of advantage to the orderly unfolding of the arbitral process and conducive to the maintenance of working relations between the Parties if during the proceedings they were both to limit public discussion of the case to a minimum88. This approach was later adopted by another tribunal in the Loewen

84_{Luis Miguel Diaz; Nancy A. Oretskin, Mediation Furthers the Principles of Transparency and Cooperation to}

Solve Disputes in the NAFTA Trade Area, 30 Denv. J. Int'l L. & Pol'y 73, 2001, page 74

85

Jeffery Atik, 'Legitimacy, Transparency and NGO Participation in the NAFTA Chapter 11 Process' in Todd Weiler (ed.), NAFTA, Investment Law and Arbitration: Past Issues, Current Practice, Future Prospects (Transnational Publishers, 2004,pages 135, 140.

86_{NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions § Al (31 July}

2001); David Gantz, 'The Evolution of FTA Investment Provisions: From NAFTA to the United States-Chile Free Trade Agreement' in (2004) 19 American University International Law Review at page 749

87_{Loukas A. Mistelis, Confidentiality and Third Party Participation UPS v. Canada and Methanex Corporation}

v. United States, Arbitration International, Volume 21, Issue 2, 1 June 2005, Pages 211–232, page 220

88

Metalclad Corp. v. Mexico, Award, para. 13 (NAFTA Ch. 11 Arb. Trib. Aug. 30, 2000), 40 ILM 36, 39, 2001, (discussing and quoting from the tribunal's October 1997 order on confidentiality)

TRANSPARENCY AND CONFIDENTIALITY IN INVESTMENT ARBITRATION

TRANSPARENCY AND CONFIDENTIALITY

IN INVESTMENT ARBITRATION

CONTENTS