The level of confidentiality or transparency in an ICSID arbitration depends on the agreement of the parties, the applicable treaty and the decisions of the Tribunal. In addition, there are specific rules applicable to the ICSID Secretariat and the Members of a Tribunal.
The ICSID Convention and Arbitration Rules do not contain a general presumption of confidentiality or transparency applicable to the parties. Instead, the parties may tailor the level of confidentiality or transparency to their proceedings.The parties sometimes agree on the information and documents that they wish to keep confidential. Such confidentiality agreement is usually signed by the parties and adopted by the Tribunal in an order. The agreement may allow either party to designate documents as confidential, in part or whole, for use only in the arbitration. It may also allow for portions of documents introduced into the proceeding or issued by the Tribunal to be redacted before being made public.Similarly, the parties could agree on greater transparency in the proceedings. For example during the
first session of the Tribunal, parties may agree to publish documents to consider publication or on a case by case basis. They may also agree to allow public access to hearings through web or video broadcasting or in person (Arbitration
Rule 32(2)). ICSID posts an advance notice of hearings open to the public and details about access to such hearings. In those circumstances, measures are taken to protect proprietary or privileged information (for example by suspending the broadcast of a portion of the hearing dealing with sensitive information).
The treaty, contract or law containing the parties’ consent to arbitration may include specific provisions on confidentiality and transparency applicable to the arbitration proceeding. They are usually recited in the Tribunal’s first procedural order.An example of a treaty provision on confidentiality and transparency is found in
Article 10.21 of the United States-Dominican Republic - Central America Free Trade Agreement (CAFTA).
If the parties do not agree on the scope of confidentiality or transparency and the proceedings are not subject to specific provisions, the parties may request that the Tribunal decide the issue. Such decision could be issued as provisional measures (Article 47 of the ICSID Convention, Arbitration
Rule 39), or pursuant to the inherent powers of a Tribunal to decide any question that is not covered by the ICSID Convention and Arbitration Rules (Article 44 of the Convention, Arbitration
For example, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (UNCITRAL Rules on Transparency) may be applied to an ICSID case by agreement of the State parties to an investment treaty or by agreement of the disputing parties, and ICSID may be designated to act as the repository of case documents (see e.g. Procedural Order No. 2 in BSG Resources Limited v. Republic of Guinea (ICSID Case No. ARB/14/22)). The UNCITRAL Rules on Transparency contain detailed provisions on publication of case related information, publication of documents, submissions by a third person, submissions by a non-disputing Party to the treaty, hearings, and exceptions to transparency. States parties to the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Mauritius Convention on Transparency) agree to apply the UNCITRAL Rules on Transparency to all investor-State arbitrations: (i) based on investment treaties concluded before April 1, 2014; (ii) subject to any reservation allowed under the Convention; and (iii) in regard to cases commenced after the Convention enters into force.Rules Applicable to the ICSID Secretariat