Confidentiality and Transparency - ICSID Convention Arbitration

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.

Parties’ Agreements

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).

Treaty Provisions
 

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).

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. 
  
Tribunal Decisions
 

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 Rule 19). 

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

The Centre publishes information on the registration of requests for arbitration, conciliation and post-award remedies and maintain registers of all proceedings (Administrative and Financial Regulations 22(1) and 23). The registers are continuously updated under the Procedural Details published for each case on ICSID's website. They include details concerning the method of constitution and composition of each Tribunal, Conciliation Commission and ad hoc Committee, and the procedural steps in the proceedings.
 
The Centre publishes all awards with consent of the parties. If the parties do not consent to the publication of the award, the Centre publishes excerpts of the legal reasoning of the Tribunal promptly after an award has been rendered (Article 48(4) of the ICSID Convention; Arbitration Rule 48(4)). In addition, the Centre publishes other material with the parties’ consent (for example, decisions of the Tribunal, procedural orders, parties’ submissions, transcripts and minutes of hearings, etc.) (ICSID Administrative and Financial Regulation 22(2)).
 
The Centre is committed to enhancing understanding of the ICSID process and international investment law and contacts parties to concluded and pending cases to seek their authorization to publish material from the record. 
 
Rules Applicable to Arbitrators

Tribunal members must keep confidential all information obtained as a result of their participation in the proceeding, including the contents of the award (Arbitration Rule 6(2)) and the deliberations (Arbitration Rule 15). They are required to sign a declaration with this undertaking at the time of the acceptance of their appointment. Any Tribunal Assistant is subject to the same duty of confidentiality.
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