The Treatment of Confidential Information in WTO Dispute Settlement Proceedings

Abstract

Confidentiality issues concerning sensitive information have been a frequent issue in dispute settlement proceedings of the World Trade Organization (WTO) and in other international forums of arbitration and dispute settlement. However, the rules of the WTO are silent on both what kind of information qualifies as confidential and the procedural rules applicable to such information. Instead, dispute settlement bodies have developed working procedures and case-law on confidential information. Also, in the context of the review negotiations of the Dispute Settlement Understanding (DSU), the topic of confidentiality procedures has been addressed. This article examines the case-law developed on the treatment of confidential information and identifies the categories of confidentiality given to sensitive information. It highlights the practice of Panels in responding to the parties’ confidentiality needs of the parties to the disputes. On that basis, it discusses potential changes to the WTO legal texts as proposed in the DSU review. The article concludes that the DSU review may increase legal certainty on the treatment of confidential information. However, some vagueness remains as to the scope of confidentiality. Also, arbitration rules can serve as models for WTO rules, in particular where breaches of confidentiality and access to highly sensitive information are concerned.