Essential Background

El-Awa, Mariam M.

doi:10.1007/978-3-319-39122-9_1

Mariam M. El-Awa⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 56))

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Abstract

For the purpose of clarifying the context in which this research takes place; this chapter presents the basic information that would assist the reader in understanding the background against which this research was carried out. Section 1.1 introduces the research question, by explaining the rising of the judicial and scholarly debate about confidentiality and privacy and the importance of identifying the answers to the questions this debate gave rise to in every jurisdiction; while Sect. 1.2 explains the research objectives, its focus and limitations. Section 1.3 gives an essential overview of the Egyptian legal system and arbitration. It covers the sources of law in Egypt, a brief chronological account of the development of the law on arbitration in Egypt, and finally the domestic judicial perception of arbitration. Section 1.4 clarifies the concepts and definitions used in this book from a legal point of view. Section 1.5 offers a comparative review of the major judicial and legislative approaches to answering the question of confidentiality and privacy in different jurisdictions. Finally, Sect. 1.6 describes the methodology followed in researching the topic of this book and outlines the structure of its chapters.

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Notes

1.
Lord Thomas, Lord Chief Justice of England and Wales (2016, para 4, p. 2).
2.
Lew et al. (2003, para 1-26 and 1-27, p. 8), Lew (1982, p. 224 at 1), Sanders (1999, p. 4), Redfern (1999, pp. 23ff.), Editorial (1995, 1st para, p. 231), Fouchard et al. (1999, paras 1132 and 1412, pp. 612 and 773), Smit (1995, pp. 299ff.), Brown (2001, p. 972 at I), Denis-Smith (2004, p. 10), Wangelin (2004, p. 4 at 1), Kouris (2005, p. 127 at 1), Denoix and Marc (2003, p. 211), Robb (2004, p. 2), Bhatiaet et al. (2009, p. 4 at 2), Dundas (2003, p. 1 at 1), Jolles and de Cediel (2004, p. 112 at VIII), and Reuben (2006, p. 1255 at 1).
3.
Born (2009, Vol. 2, p. 2252).
4.
Esso Australia Resources Ltd et al. v. the Minister for Energy and Minerals, Plowman, (1995) 128 A.L.R. 391.
5.
Arbitration International, Vol. 11, No. 3.
6.
On the one hand; Stephen Bond Esq, in his expert report, stated that “the users of international commercial arbitration… place the highest value upon confidentiality as a fundamental characteristic of international commercial arbitration”, and the expert Report of Stewart Boyd QC, confirmed that “in England, the practice … is consistent with there being an implied term of an arbitration agreement that the parties to an arbitration must keep confidential information acquired by them in the course of arbitration… I believe this to be consistent with the practice in international commercial arbitration in most if not all jurisdictions where such arbitrations are held”. On the other hand, Professor Hans Smit, asserted that the laws of the United States do not impose a duty on the parties “to treat as confidential the arbitration proceedings and what transpires in them”, and the expert report of Professor Julian Lew, stated that “there is no general binding rule that arbitration proceedings are private and confidential …”. All these reports are published in: Arbitration International, Vol. 11, No. 3.
7.
Pryles (2004, p. 415).
8.
Dundas (2004, p. 235), Lew et al. (2000, para 8-45, p. 177), and Ritz (2010, p. 244).
9.
Fortier (1999, p. 131).
10.
Professor El-Ahdab criticizes this state; he asserts that the Egyptian Arbitration law “does not grant this distinction the effects which are generally linked to it in all arbitration acts which make such distinction”; El-Ahdab (1999, p. 158–159).
11.
It may be said that this provision addresses judges and is irrelevant to arbitrators. However, the Civil Code in Egypt is the general law, absent an answer to a specific matter in any other law, the arbitrator shall resort to the provisions of the Civil Code to find a relevant rule.
12.
A detailed discussion of this issue takes place in Chap. 3.
13.
Aboulwafa (1990, p. 453).
14.
Sharia’ became the principal source of legislation based on the results of a public referendum on constitutional amendments conducted on 22/5/1980.
15.
It is worth mentioning that all undergraduate law degrees in Egypt include courses on Sharia’ and Islamic law along with the secular legal system in operation, which are compulsory for all law students.
16.
The Mejalla is a codification of the jurisprudence of the Hanafi School of Islamic Law as authored by the Ottoman Committee of Jurists. It was gradually issued in 1870–1878. The order to codify the jurisprudence of the Hanafi School of Law in the Mejalla was made by Al-Sultan Abdul Aziz who ordered that the committee of jurists should be constituted and headed by Ahmad Gawdat Basha. Arbitration was codified in Chapter 4 of the 16th book. It is worth noting that the Mejalla was not applied for long in the Ottman Empire, it was abolished in 1926 and replaced by laws based on European codes (e.g. The German Commercial Code, the Civil Swiss Code and the Italian Criminal Code). Nonetheless, the Mejalla is still considered a historical source for a number of the Arab legislations in Kuwait, Arab Emirates, and Jordan and even in Europe in Bosnia and Herzegovina. For a detailed study on the Mejalla and its effect on the Arab laws in relation to arbitration specifically see: El-Awa (2002).
17.
Chapter 6 of the 10th book, Articles 702–727.
18.
El-Awa (2009, para 8-9, p. 251).
19.
The Egyptian Civil, Commercial, Maritime, Criminal Codes were all enacted in the same year.
20.
Chapter 3 of the 3rd book, Articles 818–850.
21.
Al-Ashmawy (1957, vol. 1, para 237, p. 290).
22.
It is worth mentioning that Mohammed Al-Ashmawy is one of the leading jurists and reformers in the modern history of Egypt. He was professor of civil procedural law at Cairo University; He also served as an appeal judge and was appointed, several times, to be the Minister of Education in Egypt, and was member of the committee that drafted the Civil Procedural Code of 1949, and is considered the father of procedural law in Egypt. He passed away in 1967. His legal opinions are much valued by the legal community in Egypt and the Arab world.
23.
Waly (2007, para 22, p. 56), and El-Awa (2002, para 263, p. 285).
24.
El-Awa (2002, Ibid). The law no. 32 of the year 1966 regulated compulsory arbitration between public authorities, which was later repealed and replaced, by the law no. 97 of the year 1983, which, also, provides for the same system of compulsory arbitration, except for the right to challenge an arbitration award by an action to annul it. This right was established by consecutive rulings to that effect by the Supreme Constitutional Court of Egypt, judgment on 11/5/2003, case no. 59 of the judicial year 20, and the Egyptian Court of Cassation, judgment on 14/6/2005, case no. 239, judicial year 69.
25.
Chapter 3 of the 3rd book, articles 501–513.
26.
Aboulwafa (1983, p. 12).
27.
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.
28.
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965.
29.
The Law of Procedure no. 13 of the year 1968, articles 501–513.
30.
Professor Chafik was a member of the UNCITRAL Working Groups on International Legislation on Shipping (1974 and 1975), International Negotiable Instruments (1973), and he chaired the UNCITRAL sessions twice (1973 and 1983). He was head of the Department of Commercial law, Cairo University. He is considered the main drafter of the Egyptian Arbitration Law of 1994.
31.
El-Sharkawi (2011, para 4, p. 7).
32.
Waly (2007, para 24, p. 59).
33.
This Parliamentary Committee was a joint one comprising of the committee for legislative and constitutional matters and the committee for economic matters of the Egyptian Parliament. It was constituted to review the draft arbitration law prepared by the committee chaired by Professor Chafik.
34.
El-Ahdab (1999, p. 157). Also see the preparatory works for the law no. 27 of the year 1994 and the discussions of the Parliamentary Committee, Publications of Egyptian the Ministry of Justice, 1995, p. 83.
35.
The wisdom of this choice is not questioned, however, the provisions of the law should have been amended to clearly recognize and embody the rules of the international conventions related to international arbitration which Egypt has ratified.
36.
The Arbitration Law in Civil and Commercial Matters, and the Explanatory Memorandum, and All Related Preparatory Works, Ministry of Justice, Cairo, 1995, pp. 43, 49ff. The Arbitration Law is one of a set of laws passed in the 1980s and 1990s, all aiming at making the legal environment more friendly for foreign investors, from which I mention, the law no. 230 of the year 1989 on Investment; the law no. 8 of the year 1997 of Investment Guarantees and Incentives, and the law no. 205 of the year 1990 on Confidentiality of Bank Accounts (the latter now replaced with the law of the Central Bank no. 88 of the year 2003.
37.
UNCITRAL Model Law on International Commercial Arbitration, 1985.
38.
Op. Cit. note 36, para 4, p. 44 and para 3, p. 50.
39.
Al-Ashmawy (1957, vol. 1, para 6, p. 7).
40.
Al-Ashmawy (1957, vol. 1, para 236, p. 289).
41.
The Supreme Constitutional Court judgments on: 13/1/2002, case no. 55, judicial year 23, in which it declared the compulsory system of arbitration, provided for in the Capital Market Law no. 95 of the year 1992, is unconstitutional on 17/12/1994 case no. 13, judicial year 15, in which it ruled that the compulsory system of arbitration of Faisal Bank provided for in the law no. 48 of the year 1977 is unconstitutional. See: El-Sharkawi (2011, p. 15).
42.
Haddad (2008, paras 228-238, pp. 159 ff.).
43.
Possibly, courts still view and label arbitration as an exception because although by the law they have to, and they do, lend their complete support to arbitration, and court intervention is kept to minimal levels, still arbitration is not perceived as a just and trustworthy system of resolving disputes as “its essence is…. eliminating the safeguards for justice…”. Judges cannot be wholly blamed for endorsing such views, and sustaining the exceptional attribute of arbitration, at least to serve as an exceptional path to do justice to injured parties. It must be said that Egyptian courts relied on this attribute, more often than not, to uphold the parties to their choice to arbitrate.
44.
El-Awa (2009, p. 9).
45.
Poudret and Besson (2007, para 369, p. 316).
46.
The Egyptian Constitution of 2014, articles (65) and (70).
47.
The Model Law, Article 1(3): “An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states; or (b) one of the following places is situated outside the state in which the parties have their places of business: (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country”.
48.
Article (3): “Arbitration is international within the scope of this Law if the subject-matter relates to international trade…”. See: Cairo Court of Appeal, commercial circuit (50), case no. 45, judicial year 1995, judgment on 15/06/1996.
49.
Article 1492 of the French Code of Civil Procedure: “An arbitration is international if it implicates international commercial interest”. For a comprehensive analysis of the French approach see Lew et al. (2003, para 4-28, pp. 58–59).
50.
The Model Law, Article 1(3): “an arbitration is international if…(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country”.
51.
This article, described as the opting-in article, is criticized for allowing the parties to “…internationalize their arbitration without an apparent reason or a foreign link”. Lew et al. (2003, para 4-37, p. 61).
52.
Lew et al. (2003, para 4-29, p. 58).
53.
Cairo Court of Appeal, judgement on 8/5/2013, commercial circuit (62), case no. 8, judicial year 130.
54.
Cited in: El-Awa (2014, vol. 1, p. 76).
55.
Al-Jammal and Abdulaal, cited in: El-Awa (2014, p. 81).
56.
El-Ahdab (1999, pp. 158–159).
57.
Article 9(1) reads: “Jurisdiction to review the arbitral matters referred by this law to the Egyptian judiciary lies with the court having original jurisdiction over the dispute. However, in the case of international commercial arbitration, whether conducted in Egypt or abroad, jurisdiction lies with the Cairo Court of Appeal unless the parties agree on the competence of another court of appeal in Egypt”.
58.
Redfern et al. (2004, para 1-56, p. 34), Born (2009, footnote 7, p. 2251).
59.
Oxford Dictionary, (2009, p. 184).
60.
Lew et al. (2003, para 1-26, p. 5).
61.
Born (2009, footnote 159, p. 2282). Another term that is of significance in this research is secrecy. It is an attribute particular to deliberations in the judicial system as well as arbitration. The difference between confidentiality and secrecy is that: concerning confidentiality, the parties have the discretion to widen the circle of the people who know the information that is intended to be kept confidential. But regarding secrecy, the law prohibits disclosure, for any reason whatsoever, of the particulars of deliberations to persons who are not members of the tribunal, whether judicial or arbitral, deciding the dispute.
62.
Lew et al. (2003, para 24-100, p. 660).
63.
Sanders (1999, p. 4).
64.
Redfern et al. (2004, para 1-56, p. 34).
65.
Case No. T 6-111-98, Svea Court of Appeal, 30/3/1999 and the Supreme Court’s judgement on the same matter of 27/10/2000.
66.
Quote in: Denis-Smith (2004, p. 41).
67.
Sawy (2012, para 111, p. 131).
68.
Ouerfelli (2009, p. 40).
69.
Redfern et al. (2004, para 1-55, p. 33).
70.
Waly (2007, para 177, pp. 332ff.).
71.
Haddad (2008, para 443, p. 300).
72.
Born (2009, pp. 2283 and 2286).
73.
In investment arbitration, the rule of privacy is structured in a different manner, however; due to the distinctly different nature of investment arbitration, these exceptions falls outside the scope of this research, for the reasons explained in the Methodology section below.
74.
Jolles and de Cediel (2004, pp. 93ff.).
75.
It is also reported that some arbitrators now write a brief minutes of deliberations and all members of the tribunal sign it. This is a precautionary measure adopted by some arbitrators to frustrate any attempts to challenge arbitral awards based on false allegations that deliberations did not take place or was not completed. See: El-Sharkawi (2011, para 302, pp. 398–403).
76.
This is the case in the UK, Hong Kong and Bermuda.
77.
Court of Cassation, Commercial Circuit, judgement on 9/2/2010, case no. 240, judicial year no. 74.
78.
For the conflicting opinions on this matter, see chapter two of this book.
79.
Jolles and de Cediel (2004, p. 91).
80.
For a detailed discussion of the duty to disclose and its bearing on the duty of confidentiality see: Esso v. Plowman, Op. Cit. note 4; Born (2009, p. 2256), and Sanders (1999, p. 5).
81.
Cairo Court of Appeal, commercial circuit no. (91), judgment on 30/5/2006, case no. 95, judicial year 122, and Waly (2007, para 341, pp. 341–343).
82.
The authorities from Canada show a similar position, that no implied duty of confidentiality arises from the general expectation of privacy in arbitration. According to Nicholas Pengelley; “when this is added to the overriding emphasis placed by Canadian courts, pursuant to long-standing common law tradition and the Charter of Rights and Freedoms, on principles of public accessibility, openness of the courts and freedom of speech, Canada may be at the extreme edge of the continuum”. Nonetheless, Canadian courts are willing to grant a sealing order for confidential substantive information in arbitration claims if the information in question satisfies the test articulated in the case of Sierra Club of Canada v. Canada (Minister of Finance) [2000] 4 F.C. 426; 187 D.L.R. (4th) 231. For further details see: Pengelley (2011).
83.
Op. Cit. note 4.
84.
Op. Cit., note 4, pp. 242 and 243.
85.
Ibid, p. 246.
86.
Ibid, pp. 249–251.
87.
Ibid, p. 257.
88.
Ibid, p. 262.
89.
Ibid, p. 263.
90.
Op. Cit., note 65.
91.
Fortier (1999, pp. 137 and 138) and Fouchard et al. (1999, para 1412, pp. 773ff.).
92.
Jolles and de Cediel (2004, p. 105).
93.
Jarvin (2009, p. 883).
94.
Tobin (2001, pp. 36 and 37), Bagner (2001, pp. 19–21), Smit (2000, pp. 567ff.), Brown (2001, pp. 986 and 987), Kouris (2005, p. 135 at D), Pryles (2004, pp. 446ff.), Seriki (2006, p. 301), and Raymond (2005, p. 492 at 3).
95.
Jarvin (2009, p. 884).
96.
Kaster (2012, p. 25).
97.
Noussia (2010, p. 96).
98.
118 FRD 346 (D Del 1988).
99.
Paulsson and Rawding (1995, p. 311), and Noussia (2010, p. 95).
100.
Smeureanu (2011, footnote 116, p. 40).
101.
Smeureanu (2011, p. 41).
102.
Contship Containerlines, Ltd. V. PPG Industries, Inc., N. 00 Civ. 0194 RCCH BP, 2003 WL 1948807 (S.D.N.Y. Apr. 23, 2003).
103.
Noussia (2010, p. 96).
104.
580 F.3d 664, 665–66 (7th Cir. 2009).
105.
Smeureanu (2011, pp. 41–42).
106.
No. 3:2013cv01547—Document 14 (N.D. Tex. 2014).
107.
Ibid, pp. 3–4.
108.
For a detailed discussion on Confidentiality in Norway see: Nisja (2008).
109.
It is a committee set up in 1985 and disbanded in 1997. It examined the operation of arbitration legislation and potential improvements to the system of arbitration in England and Wales. Under the chairmanship of Lord Justice Saville (as he then was), the DAC drafted the Bill which eventually became the Arbitration Act 1996, and also produced two DAC Reports, which are used by the English courts as aids to interpreting the Arbitration Act 1996.
110.
Merkin and Flannery (2008, p. 19), Robb (2004, p. 2 at 3), Denis-Smith (2004, pp. 12–13), Elliott (2000, pp. 58ff.).
111.
Harris (2007, pp. 464–465).
112.
Smeureanu (2011, p. 31).
113.
For further analysis of this case see: Tackaberry and Marriott (2003, vol. 1, para. 2-633, p. 234), Collins (1995, p. 324), Tobin (2001, pp. 11–12); Paulsson and Rawding (1995, pp. 309 and 313), and Jolles and de Cediel (2004, p. 104).
114.
Dolling-Baker v. Merrett , [1990] 1 WLR 1205.
115.
Shipping Corporation v. Shipyard Trogir, [1999] 1 W.L.R. 314, at 327.
116.
Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co. of Zurich, [2003] UKPC 11; [2003] 1 W.L.R 1041.
117.
Ibid, at para 20.
118.
Toulson and Phipps (2006, para 22-104, p. 413).
119.
Mance L.J. giving the leading judgment in the matter of the City of Moscow v. Bankers Trust Co; [2004] EWCA Civ 314; [2005] Q.B. 207, at [2].
120.
For comprehensive analysis of the above listed judgments and others decided by English courts see: Tackaberry and Marriott (2003, pp. 306ff.), Toulson and Phipps (2006, pp. 408ff.), Brown (2001, pp. 977–978 and 981–985), Kouris (2005, pp. 129ff.), Robb (2004, pp. 3–32), Seriki (2006, pp. 302ff.), Collins (1995, pp. 327ff.), Fortier (1999, p. 136), Friel (2008, pp. N46ff.), and Dundas (2008, pp. 458ff.).
121.
The text of this section was found on http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part62.htm#IDALVEXB.
122.
Mance L.J. giving the leading judgment in the matter of the City of Moscow, Op. Cit. note 119.
123.
However Mance L.J. continued that the Lawtel summary was factually neutral and there is no sensible means to prevent further publication, and preventing its publication will not further the confidentiality of sensitive information. For further discussions on this case see: Pryles (2004, pp. 438–440), Tweeddale (2005, p. 60 at II), Dundas (2004, pp. 229ff.), Dundas (2003, p. 5 at 3), Seriki (2006, pp. 307 and 308).
124.
[2005] 2 Lloyd’s Rep. 529.
125.
It is so despite the fact that it is not considered an arbitration claim under section 62.8 of the CPR.
126.
Pryles (2004, pp. 440–442).
127.
Soopramanien (2013, pp. 16–18).
128.
Myanma Yaung Chi Oo Co. v. Win Win Nu & another, [2003] 2 SLR 547 and International Coal Pte Ltd v. Kristle Trading Ltd [2008] SGHC 182.
129.
Kouris (2005, p. 136 at F).
130.
Smeureanu (2011, p. 47).
131.
Decision of the Paris Court of Appeal, 18 February 1986, in [1986] Rev. Arb. 583.
132.
Fouchard et al. (1999, para. 1132, p. 612), Jolles and de Cediel (2004, p. 104), Paulsson and Rawding (1995, pp. 312–313) argue that the French Court was, possibly, determined to punish the appellant. Cairo Court of Appeal rendered a number of similar awards, in which it ruled that the party who attempts to challenge an arbitration award in courts other than those of the seat, is indeed acting in bad faith; Redfern (1999, para 1-60, p. 37), Dessemontet (1996, nos 3–4, pp. 299–318), Brown (2001, pp. 975–976), Kouris (2005, pp. 135–136), Denis-Smith (2004, pp. 33ff.), and Denoix and Marc (2003, p. 212).
133.
Castellane (2011, p. 371).
134.
English Translation of the New French Arbitration Law retrieved from: http://www.parisarbitration.com/French-Law-on-Arbitration.pdf.
135.
Carducci (2012, p. 150).
136.
Gaillard (2011).
137.
Ibid.
138.
Castellane (2011, p. 377).
139.
Report to the Prime Minister on the Decree No. 2011-48 of 13 January 2011 for the reform of arbitration law, text retrieved from: http://www.legifrance.gouv.fr.
140.
Mistelis (2005, p. 215). An English translation of the Spanish Arbitration Act 2003 can be found on: http://www.voldgiftsforeningen.dk.
141.
Prior to the 2003 amendments, the New Zealand Arbitration Act, section 14 on confidentiality read as follows: “…(1) an arbitration agreement, unless otherwise agreed by the parties, is deemed to provide that the parties shall not publish, disclose, or communicate any information relating to arbitral proceedings under the agreement or to an award made in those proceedings.
(2) Nothing in subsection (1) prevents the publication, disclosure, or communication of information referred to in that subsection—
(a) If the publication, disclosure, or communication is contemplated by this Act; or
(b) To a professional or other adviser of any of the parties”. The 2003 amendments were based on the Law Commission Report on Improving the Arbitration Act, the first issue the report addressed was confidentiality. Report 83, Improving the Arbitration Act 1996, February 2003, part 1, retrieved from: http://www.austlii.edu.au/nz/other/nzlc/report/R83/.
142.
The New Zealand Arbitration Act can be retrieved from: http://legislation.govt.nz/act/public/2007/0094/latest/096be8ed80105bb1.pdf.
143.
Ritz (2010, pp. 231–233), Jolles and de Cediel (2004, pp. 89–113). Also, see: Dessemontet (1996, p. 20), and Paulsson and Rawding (1995, footnote 19, p. 317).
144.
Ritz (2010, p. 244).
145.
Smeureanu (2011, pp. 62–63).
146.
Scherer (2007, p. N4–5).
147.
Tschanz (2006).
148.
Redfern et al. (2004, para 1-56, p. 34).
149.
Paulsson and Rawding (1995, p. 303).
150.
ICSID is the International Centre for Settlement of Investment Disputes.
151.
Paulsson (1995, p. 255).
152.
Murphy (2013, p. 185).
153.
Potential investors, also, have an interest, whether legitimate or otherwise, in the arbitral process and the award. That is to allow them to evaluate the risk associated with investing in the host-state involved in arbitration.
154.
Murphy (2013, p. 185).
155.
Methanex Corporation v. United States of America. Decision of the arbitral tribunal on petitions from third parties to intervene as “Amici Curiae”, 15 January 2001.
156.
UPS v. Government of Canada. Decision of the tribunal on petitions for intervention and participation as Amici Curiae, 17 October 2001.
157.
Both arbitrations were governed by the UNCITRAL arbitration rules.
158.
In the Methanex case, the tribunal stated that nothing in the NAFTA Chapter 11 or the UNCITRAL Arbitration Rules allowed or prohibited the tribunal from accepting amicus briefs. For further discussion of the amicus curiae submissions, see: Mistelis (2005, pp. 224ff.), and Fortier (2008).
159.
Gélinas (2005, p. 589).
160.
Fortier (2008, p. 3).
161.
Fortier (2008, p. 4).
162.
Fortier (2008, pp. 5ff.).
163.
Fortier (2008, pp. 6–7), and Parra (2007, p. 66).
164.
Ibid.
165.
Bastin (2014).
166.
Bastin (2014, p. 128), he refers to the Centre for International Environmental Law (CIEL) which sought to participate in five investor-state arbitrations that were are somehow relevant to environmental issues.
167.
Bastin (2014, pp. 129–130).
168.
Bastin (2014, pp. 130–132). Reference is made to the cases of Pac Rim v. El Salvador, Chevron v. Ecuador, and Apotex v. United States.
169.
Bastin (2014, pp. 135–136). In support of his finding, Bastin cites eight investor-state arbitrations, in which the basic argument of the amicus submissions was that “the state’s impugned measures… were pursued in a legitimate public interest and should not give rise to responsibility under the applicable investment treaty, and that a finding to the contrary would strike at the heart of the State’s ability to regulate domestic affairs”.
170.
Bastin (2014, pp. 139–141).
171.
Lew (1982, p. 226).
172.
Mistelis (2005, p. 216), and Ortino (2008, pp. 14ff.). For general discussions on the issue of transparency in investment arbitration, see: Kaufmann-Kohler (2007, pp. 368ff.), Tweeddale (2005), and Buys (2003).
173.
http://www.uncitral.org/uncitral/uncitral_texts/arbitration/2014Transparency.html.
174.
Article (1/4) reads as follows: “For investor-State arbitration initiated pursuant to a treaty providing for the protection of investments or investors, these Rules include the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration… subject to article 1 of the Rules on Transparency”.
175.
Murphy (2013, p. 186).
176.
Requejo (2014).
177.
Text of the Rules on Transparency retrieved from: http://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.
178.
Ibid.
179.
El-Ahdab and El-Ahdab (2011, para AE-150, p. 815).
180.
Haddad (2008, para 443, p. 334).
181.
I did not find any preceding writings in Arabic literature stating that arbitration is confidential.
182.
Chafik (1997, para 21, pp. 28–29).
183.
Abdulqader (1996, pp. 65–66), Al-Jammal and Abdulaal (1998, Vol. 1, p. 65), Mabrouk (1998, p. 12), Al-Feki (2007, pp. 6–7), Al-Sheikh (2003, p. 42), Al-Marakbi (2010, p. 26), and Younis (2009, para 8, pp. 18–19).
184.
Sharf El-Dien (2007, p. 12), Mustafa (2008, p. 23), Khater (2009, pp. 96–97), Abdulsalam (1997, p. 4), Hassan (2007, p. 9), Salim (2007, p. 191), and Saabna (2008, p. 108).
185.
Aboulwafa (1983, p. 244 at 3), Barakat (1996, para 332, p. 329), El-Fazairy (1993, p. 8), Younis (2009, para 414, pp. 345–346), Al-Feki (2007, p. 6), Al-Jammal and Abdulaal (1998, para 454, p. 659), Aal Farian (2007, p. 75 at 2).
186.
Hashem (1984, para 18, p. 23), Younis (2009, para 534, pp. 429–431); Al-Khaledy (2009, pp. 438–439); Sharf El-Dien (2007, p. 73).
187.
Mabrouk (1998, para 106, pp. 207–208), Younis (2009, para 544, pp. 436–437), Al-Feki (2007, p. 6).
188.
Waly (2007, para 7, p. 15).
189.
Waly (2007, para 177, p. 332).
190.
Waly (2007, para 259 et seq., pp. 452–453).
191.
El-Sharkawi (2011, p. 280 at 4).
192.
El-Sharkawi (2011, para 302, p. 401).
193.
El-Sharkawi (2011, para 302, p. 402).
194.
El-Sharkawi (2011, para 331, pp. 452–454).
195.
Saabna (2008, p. 107).
196.
Saabna (2008, pp. 109–110).
197.
Farouk, (c. 2003, p. 286).
198.
El-Awa (2009, pp. 302–330).
199.
El-Awa (2009, para 11-12, p. 309).
200.
El-Awa (2009, para 11-8, p. 306).
201.
El-Awa (2009, para 11-34, p. 329).
202.
El-Ahdab and El-Ahdab (2011).
203.
Haddad (2008).
204.
See Appendix (1).
205.
These are Cairo Regional Centre for International Commercial Arbitration and the Arab Centre for Arbitration.

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Mariam M. El-Awa

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El-Awa, M.M. (2016). Essential Background. In: Confidentiality in Arbitration. Ius Gentium: Comparative Perspectives on Law and Justice, vol 56. Springer, Cham. https://doi.org/10.1007/978-3-319-39122-9_1

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DOI: https://doi.org/10.1007/978-3-319-39122-9_1
Published: 07 July 2016
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