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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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