24 J. Int'l Arb. 479 (2007)
Investor-State Arbitration under ICSID: A Case for Presumption against Confidentiality

handle is hein.kluwer/jia0024 and id is 491 raw text is: Journal of International Arbitration 24(5): 479-489, 2007.
 2007 K/uver Law International. Pinted in The Netherlands.
Investor-State Arbitration Under ICSID: A Case for
Presumption Against Confidentiality?
Mabel I. EGONU*
One of the main advantages of arbitrations is confidentiality. The private nature of the arbitral proceedings
implies confidentiality and is thus one of the reasons why arbitration is preferred over other dispute resolution
processes for the resolution of commercial and investment disputes. However, the issue of confidentiality has been
called into question in the case of investor-state arbitration. Given that the matters raised in investor-state
arbitration are usually of interest to the public, there have been calls for such proceedings to be more open and
transparent. The aim of this article is to determine whether, in light of the recent amendments to the ICSID
Arbitration Rules, transparency and public involvement can be presumed to now be the underlying theme in
investor-state arbitration under ICSID. The article examines the background to investor-state arbitration under
ICSID and looks at how the issue of confidentiality is treated in the ICSID Convention, the ICSID Rules,
and cases. It then analyses the arguments for and against confidentiality. The article concludes that the
emphasis should be on balancing the conflicting demands for confidentiality on the one hand, and the
public's interest in greater transparency and involvement in such arbitrations on the other.
I.   INTRODUCTION
Confidentiality is regarded as one of the benefits of arbitration as a dispute settle-
ment method. In the case of investor-state arbitration, the presumption of confidentiality
of the arbitral process ensures privacy of the proceedings and the protection of sensitive
government documents as well as confidential documents relating to the business of the
investor.
The subject matter of the investment disputes usually involves issues of public policy,
in the outcome of which the public has an interest. Decisions in such arbitration usually
have the potential to affect the welfare of the citizens of the state involved in the dispute.
The public interest issues, amongst others, have given rise to a debate as to whether
confidentiality should be a norm in investor-state arbitration; or should investor-state
arbitrations held under the auspices of the International Centre for the Resolution of
Investment Disputes (ICSID) be open affairs, with cases requiring confidentiality considered
as exceptions? There is no doubt that confidentiality of the arbitration process has certain
advantages; on the other hand, there are also advantages to having more open and trans-
parent investment arbitrations.
* Former Legal Intern at the International Tribunal for the Law of the Sea, Hamburg. Currendy studying for
an LL.M. in Petroleum Law and Policy at CEPMLP, University of Dundee. She may be contacted at
miegonu@yahoo.co.uk.
Copyright 2007 by Kluwer Law International. All rights reserved
No claims asserted to original government works

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