Confidentiality and Transparency - Additional Facility 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 on Confidentiality and Transparency
  • Treaty Provisions on Confidentiality and Transparency
  • Tribunal Decisions on Confidentiality and Transparency
  • Rules Applicable to the ICSID Secretariat
  • Rules Applicable to Arbitrators
Parties’ Agreements
The ICSID Additional Facility Rules and Arbitration (Additional Facility) 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 proceeding.
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, parties may agree to publish documents during the first session of the Tribunal 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 (Article 32(2) of the Arbitration (Additional Facility) Rules). ICSID posts an advance notice of hearings open to the public and details about access to such hearings.  In those circumstances, measures are usually taken to protect proprietary or privileged information. The UNCITRAL Rules Annex on Transparency (for example by suspending the broadcast of a portion of the hearing dealing with sensitive information).
Treaty Provisions on Confidentiality and Transparency
The treaty, contract or law containing the parties’ consent to arbitration may include specific provisions on confidentiality and transparency. Such provisions apply to the arbitration proceeding based on that instrument of consent. They are usually recited in the Tribunal’s first procedural order.
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. 

A further example of a treaty provisions on confidentiality and transparency is found in Article 10.21 of the United States-Dominican Republic - Central America Free Trade Agreement (CAFTA).
Tribunal Decisions on Confidentiality and Transparency
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 under the provisions concerning provisional measures (Article 47 of the ICSID Convention and Arbitration Rule 39), or pursuant to the inherent powers of a Tribunal to decide any question that is not covered by the Additional Facility Arbitration Rules (Article 44 of the Convention and Arbitration Rule 19).
Rules Applicable to the ICSID Secretariat
The Centre publishes information on the registration of requests for arbitration, conciliation and post-award remedies and maintains registers of all proceedings (Administrative and Financial Regulations 22(1) and 23). The registers are continuously updated on-line under the Procedural Details of each case.  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; and 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.