Reassessing Confidentiality Versus Transparency in International Investment Arbitration: A Comparative Critical Review

Abstract Due to the emphasis placed on implementing confidentiality in arbitration, arbitration has become an important tool for settling international trade and investment disputes. Confidentiality constitutes a procedural guarantee for litigants without which arbitration cannot be envisaged. This is despite the demands to apply transparency to some issues related to international investment arbitration. To achieve its objectives, the study was divided into sections that dealt with the nature of confidentiality in commercial arbitration, the subjective and objective rationalizations that compelled arbitrators to staunchly adhere to the principle of confidentiality, and the issues that made the principle of confidentiality an impediment to international investment arbitration which generated serious calls to implement the principle of transparency. The study also defines the concept of confidentiality by distinguishing it from privacy, as misunderstandings surrounding the nature of these two concepts have confused confidentiality mechanisms. A further emerging trend that runs counter to the dominant idea of absolute confidentiality in arbitration resulted from the continuous international demand to give transparency a prominent role over confidentiality in investment arbitration. This trend also calls for a clear arbitration process that allows the public to participate in access the investment arbitration proceedings and assess their legitimacy and transparency. The United Nations Commission on International Trade Law has initiated a “paradigm shift” in arbitral proceedings by passing rules regulating the transparency of investment arbitration work: the “UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration” adopted in 2014. In this context, this study seeks to analyse the principle of transparency and balance it with the principle of confidentiality of international investment arbitration.