The Duty of Confidentiality

Abstract

The duty of confidentiality of investment adjudicators is currently dealt with in legal spheres such as ICSID or the ICS. A proper understanding of contemporary facets of this duty requires giving appropriate consideration to existing provisions on transparency vis-a-vis the public. While it falls to investment adjudicators to police the correct application of transparency provisions, these adjudicators also retain formal ties to confidentiality provisions, whose wording sometimes has its origins in other legal sectors such as commercial arbitration or the national judicial systems. There are specific moments in investment arbitration proceedings that are clearly under the investment adjudicator’s control (tribunal deliberations, etc.). In this kind of situation, the existence of a duty of confidentiality attributable to the investment adjudicator makes absolute sense. Nevertheless, if the confidentiality provisions in the contemporary investment context are to be correctly interpreted, the importance of notions such as “public information” needs to be ascertained, which may raise the question of whether investment adjudicators’ duty of confidentiality is really as broad in practice as currently supposed.