Abstract
The duty of confidentiality of investment adjudicators is currently dealt with in legal spheres such as ICSID or the ICS. A proper understanding of contemporary facets of this duty requires giving appropriate consideration to existing provisions on transparency vis-à-vis the public. While it falls to investment adjudicators to police the correct application of transparency provisions, these adjudicators also retain formal ties to confidentiality provisions, whose wording sometimes has its origins in other legal sectors such as commercial arbitration or the national judicial systems. There are specific moments in investment arbitration proceedings that are clearly under the investment adjudicator’s control (tribunal deliberations, etc.). In this kind of situation, the existence of a duty of confidentiality attributable to the investment adjudicator makes absolute sense. Nevertheless, if the confidentiality provisions in the contemporary investment context are to be correctly interpreted, the importance of notions such as “public information” needs to be ascertained, which may raise the question of whether investment adjudicators’ duty of confidentiality is really as broad in practice as currently supposed.
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Notes
- 1.
Academics draw the following distinction: privacy in arbitration refers to the inability of unauthorised third parties to attend arbitral hearings or participate in the arbitral proceedings . On the other hand, confidentiality refers to the obligation not to disclose to third parties any information or documents concerning the arbitration. Born (2012), p. 196.
- 2.
The avoidance of specific ex parte communications is another arbitrator’s duty. This book does not contain a chapter dealing with this topic, as the author is preparing an article on this issue. Fach Gómez (2019).
- 3.
The 2018 White & Case survey states that: “87% of respondents believe that confidentiality in international commercial arbitration is of importance. Most respondents think that confidentiality should be an opt-out, rather than an opt-in, feature”. White & Case (2018), p. 3. Nevertheless, it has recently been contended that commercial arbitration would benefit from shifting towards transparency. Carmody (2016).
- 4.
- 5.
Poorooye and Feehili (2017).
- 6.
For instance, Article 30.1 LCIA Arbitration Rules: “The parties undertake as a general principle to keep confidential all awards in the arbitration, together with all materials in the arbitration created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a state court or other legal authority.” LCIA (2014).
- 7.
- 8.
Some academics have supported the creation of a model confidentiality clause, as a means to achieve harmonization. Sarles (2002).
- 9.
The Magna Carta of Judges states the following in points 14–16: “Access to justice and transparency. Justice shall be transparent and information shall be published on the operation of the judicial system. Judges shall take steps to ensure access to swift, efficient and affordable dispute resolution; they shall contribute to the promotion of alternative dispute resolution methods. Court documents and judicial decisions shall be drafted in an accessible, simple and clear language. Judges shall issue reasoned decisions, pronounced in public within a reasonable time, based on fair and public hearing. Judges shall use appropriate case management methods.” Consultative Council of European Judges (2010). Mahoney (2008).
- 10.
Article 7 of the Code of Conduct: “Discretion. 1. Members shall preserve the secrecy of the deliberations. 2. Members shall comply with their duty to exercise discretion in dealing with judicial and administrative matters. 3. Members shall act and express themselves with the restraint that their office requires”. CJEU (2016).
- 11.
Article V of the Resolution: “Discretion. Judges shall exercise the utmost discretion in relation to secret or confidential information relating to proceedings before the Court. They shall respect the secrecy of deliberations”. ECHR (2008).
- 12.
Article 1.4. Study Group (2004).
- 13.
Point 15. UN (1985).
- 14.
Some other arbitration acts and institutional rules contain a reference on confidentiality, common to various arbitration actors. For instance, Article 24.2 of the Spanish Arbitration Act states that: “the arbitrators, the parties and the arbitral institutions, if applicable, are obliged to maintain the confidentiality of information coming to their knowledge in the course of the arbitral proceedings ”. Kingdom of Spain (2013). Article 34 of the Danish Institute Arbitration Rules lists the different persons composing the DIA who are obliged by the referred confidentiality duty: “the members of the Arbitral Tribunal, the members of the Board or the Board of Representatives, the Chairman’s Committee, the Secretariat and the Secretary General of DIA shall treat all matters relating to the arbitration as confidential.” DIA (2013); and Article 3 of the Arbitration Rules of the Stockholm Chamber of Commerce: “Unless otherwise agreed by the parties, the SCC, the Arbitral Tribunal and any administrative secretary of the Arbitral Tribunal shall maintain the confidentiality of the arbitration and the award.” SCC (2017) Outside of the commercial arbitration’s framework: R43 of the Procedural Rules of the Court of Arbitration for Sport indicates : “Confidentiality. Proceedings under these Procedural Rules are confidential. The parties, the arbitrators and CAS undertake not to disclose to any third party any facts or other information relating to the dispute or the proceedings without the permission of CAS. Awards shall not be made public unless all parties agree or the Division President so decides”. CAS (2017).
- 15.
Canon VI of the Code of Ethics for Arbitrators in Commercial Disputes states that: “An arbitrator should be faithful to the relationship of trust and confidentiality inherent in that office”. ABA (2004).
- 16.
Gu (2005).
- 17.
Article 8 of the KLRCA’s revised Code of Conduct for Arbitrator: “Confidentiality. The proceedings shall remain confidential. An Arbitrator is in a relationship of trust to the parties and should not, at any time, use confidential information acquired during the course of proceedings to gain personal advantage for others, or to affect adversely the interest of another”. KLRCA (2013).
- 18.
Rule 8 of the CIArb Code: “Trust and Confidence. A member shall abide by the relationship of trust which exists between those involved in the dispute and (unless otherwise agreed by all the parties, or permitted or required by applicable law), both during and after completion of the dispute resolution process, shall not disclose or use any confidential information acquired in the course of or for the purposes of the process”. CIArb (2009).
- 19.
Ibid.
- 20.
Article 7.1. SIAC (2015).
- 21.
Canon VI. C of the Code of Ethics. ABA (2004).
- 22.
For instance, Article 37.2 of the Arbitration Rules of ICDR: “Unless the parties agree otherwise, the tribunal may make orders concerning the confidentiality of the arbitration or any matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information”. ICDR (2014). With a very similar drafting, Article 22.3 of the ICC Arbitration Rules. ICC (2017).
- 23.
Article 3.13 of the IBA Rules on the Taking of Evidence in International Arbitration: “Any Document submitted or produced by a Party or non-Party in the arbitration and not otherwise in the public domain shall be kept confidential by the Arbitral Tribunal and the other Parties, and shall be used only in connection with the arbitration. This requirement shall apply except and to the extent that disclosure may be required of a Party to fulfil a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. The Arbitral Tribunal may issue orders to set forth the terms of this confidentiality. This requirement shall be without prejudice to all other obligations of confidentiality in the arbitration.” IBA (2010).
- 24.
Article 37.1 of the Arbitration Rules of ICDR: “Confidential information disclosed during the arbitration by the parties or by witnesses shall not be divulged by an arbitrator or by the Administrator. Except as provided in Article 30, unless otherwise agreed by the parties or required by applicable law, the members of the arbitral tribunal and the Administrator shall keep confidential all matters relating to the arbitration or the award”. ICDR (2014).
- 25.
For instance, Article 5 of the Code of Ethics of the Court of Arbitration at the Polish Chamber of Commerce of Warsaw, when dealing with confidentiality, states that: “It is particularly inadmissible to disclose the content of the award before it is served upon the parties”. Polish Chamber (n.a.).
- 26.
Article 1469. French Code of Civil Procedure (2011).
- 27.
For instance, article 44.2 of the Swiss Rules of International Arbitration affirms that: “the deliberations of the arbitral tribunal are confidential”. Swiss Chamber’s Arbitration Institution (2012). Likewise, Article 9 of the Barcelona Arbitration Court Code of Ethics states that: “Confidentiality of deliberations. The deliberations of the arbitration tribunal, and the content of the award, shall remain confidential in perpetuity unless the parties release the arbitrators from this obligation. An arbitration may not take part in or provide any information in order to assist in any proceeding designed to analyse the award unless, exceptionally, the said arbitrator considers it is his duty to reveal any reprehensible or fraudulent conduct on the part of his co-arbitrators.” TAB (2009).
- 28.
Article 9 IBA Rules. IBA (1987).
- 29.
Article 30.2. LCIA Arbitration Rules (2014).
- 30.
A more detailed information is provided by ICSID (last accessed in June 2018).
- 31.
A number of recent IIAs address the issue of transparency of arbitral proceedings in a very detailed way. For example, Article 11.21 of the Australia-Korea FTA requires hearings to be open to the public and demands key documents to be made publicly available—with the exceptions to disclosure listed in the referred provision. This is complemented by the regulation of amicus curiae submissions performed by third (non-disputing) parties contained in Article 11.20. Australia-Korea FTA (2014).
- 32.
This kind of decision of the arbitration panel finds its legal support in articles 44 and 47 of the ICSID Convention (Articles 44-inherent powers of the tribunal and 47-provisional measures) and in the corresponding Arbitration Rules (Articles 19 and 39). ICSID (1966).
- 33.
UNCITRAL Rules (2014).
- 34.
Maupin (2013), p. 7.
- 35.
- 36.
Article 7. UNCITRAL Rules (2014).
- 37.
Article 1.9: “These Rules are available for use in investor-State arbitrations initiated under rules other than the UNCITRAL Arbitration Rules or in ad hoc proceedings”. UNCITRAL Rules (2014).
- 38.
BSG v. Guinea, pars 1–18.
- 39.
The Convention entered into force on October 18, 2017. Canada, Mauritius and Switzerland are so far the three parties to the Convention.
- 40.
Agreement of the State parties based on investment treaties concluded before April 1, 2014; subject to any reservation allowed under the so-called Mauritius Convention; and in regard to cases commenced after the Convention enters into force. ICSID (last accessed in June 2018).
- 41.
Buntenbroich (2014).
- 42.
Juratowitch (2017).
- 43.
- 44.
Some authors refer to this as “court-like” transparency. Puig (2015). Moreover, the ICSID system contains a set of pro-transparency provisions on the publication of arbitration requests, awards and other arbitration documents to be applied by the Secretariat.
- 45.
ICSID (2006).
- 46.
Outside the ICSID sphere, the arbitral tribunal of the Croatia v. Slovenia inter-state arbitration—constituted under the auspices of the Permanent Court of Arbitration—has also dealt with a case connected to the prohibition of ex parte communications . The arbitrator appointed by Slovenia reported details of the tribunal’s deliberations in two telephone conversations held with one of its agents. The arbitrator later resigned. Croatia v. Slovenia, par 173.
- 47.
Fach Gómez (2019).
- 48.
Victor Pey Casado v. Chile (2008), pars 33–36.
- 49.
The member states: “It should be noted in this regard that the Secretariat, whilst receiving any of this information, appears to be under no similar secrecy obligation.” Compañía v. Argentina, Additional Opinion. par 14.
- 50.
CETA (2016).
- 51.
EU-Singapore IPA (2018).
- 52.
EUSFTA (2015).
- 53.
EU-Vietnam FTA (2016).
- 54.
JEFTA (2016).
- 55.
TTIP (2016).
- 56.
- 57.
The order of these paragraphs may originate in the NAFTA Code of Conduct, whose clauses B, C, and D of Part VI refer to the non-disclosure of different opinions, reports and decisions, whereas E refers to the non-disclosure of panel deliberations. NAFTA (1994).
- 58.
Considering the deliberations (“a process which extends throughout the entire duration of the proceedings from their very beginning up to the delivery of the award”) to be a tangible example of cooperation among international arbitrators, Draetta (2016), p. 144. Systematizing various categories of arbitrator deliberations, Derains (2012).
- 59.
The penultimate version of the TTIP includes a single paragraph, with no express reference to this issue or to the disclosure of a decision before its publication. European Commission (2015).
- 60.
- 61.
Article 37 of the 2017 SIAC Investment Arbitration Rules does contain a long list of grounds for disclosure. SIAC (2017).
- 62.
The text presents the following variants: “no member shall disclose a decision or award or parts thereof prior to its publication in accordance…” (TTIP, JEFTA, EU-FTA Vietnam); “an arbitrator shall not disclose an arbitration panel ruling or parts thereof prior to its publication in accordance with (...)” (EUSFTA).
- 63.
Annex 8. EU-Singapore IPA (2018).
- 64.
Annex 9-G. EUSFTA (2015).
- 65.
In this case, CETA still does not provide a Code of Conduct containing a provision on confidentiality. Article 8.36. CETA (2016).
- 66.
Article 20. EU-Vietnam FTA (2016).
- 67.
Article 11. JEFTA (2016).
- 68.
Article 18: “with the following additional obligations”. TTIP (2016).
- 69.
These provisions recognize that the application of the UNCITRAL Rules presents the following nuances: “as modified by chapter 8, investment-” (CETA); “subject to the following rules” (EU-Vietnam FTA); “with the following additional obligations” (JEFTA and TTIP).
- 70.
Also dealing with international investment and commercial arbitration, Brown and Winch (2019).
- 71.
Similar terms are used in the commercial context, such as “not publicly available”. Article 44.1. DIS (2014).
- 72.
A reference to the “public domain” is also included in arbitration contexts outside the investment sphere. For instance, Article 78 of the WIPO Arbitration Rules state that: “Maintenance of Confidentiality by the Center and Arbitrator. (a) Unless the parties agree otherwise, the Center and the arbitrator shall maintain the confidentiality of the arbitration, the award and, to the extent that they describe information that is not in the public domain, any documentary or other evidence disclosed during the arbitration, except to the extent necessary in connection with a court action relating to the award, or as otherwise required by law. (b) Notwithstanding paragraph (a), the Center may include information concerning the arbitration in any aggregate statistical data that it publishes concerning its activities, provided that such information does not enable the parties or the particular circumstances of the dispute to be identified”. WIPO (2014).
- 73.
Supra, Sect. 3.4.2.
- 74.
Within the framework of these reflections on impartiality and independence, Ecuador argued that “the very fact that [the arbitrator ] ‘decided to go public’ with his comments in a published interview, against the background of the escalating dispute between Perenco and Ecuador, demonstrates a lack of impartiality”. Nevertheless, the Secretary General of the PCA affirmed that: “there is no general or absolute prohibition in the IBA Guidelines against international arbitrators speaking with the press or making public statements about pending cases. The IBA Guidelines instead focus on an inquiry into justifiable doubts brought about by particular “facts or circumstances” in any given challenge. Obviously, if arbitrators choose to discuss a pending case with the press, they risk opening up the possibility of making statements that could give rise to justifiable doubts as to their impartiality. However, there is no basis in the IBA Guidelines on which to accept the Respondent’s argument that [the arbitrator’s] decision to give the interview in and of itself should lead to his disqualification”. Perenco v. Ecuador, par 59–61.
- 75.
Ibid, par 68. The non-existence of a presumption of confidentiality with respect to the parties to the arbitration had been affirmed in other ICSID arbitrations. Kinnear and Diop (2010), pp. 46–49.
- 76.
This strategy can be very controversial and requires the intervention of the arbitral tribunal. For instance, see United Utilities v. Estonia—a case in which the UNCITRAL Rules on Transparency do not apply.
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Fach Gómez, K. (2019). The Duty of Confidentiality. In: Key Duties of International Investment Arbitrators. Springer, Cham. https://doi.org/10.1007/978-3-319-98128-4_5
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