Investor-State Arbitration Under ICSID: A Case for Presumption Against Confidentiality?

Abstract

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.