This panel will engage in a comprehensive exploration of one of the most pressing and evolving debates in international arbitration: the tension between the duty to protect confidential information and the increasing demands for transparency in treaty-based investment contracts. The discussion will be structured into three interconnected parts, offering a multi-layered legal analysis that spans the domains of public international law, international investment law, and private international law.
Part I – In Respect of Public International Law:
This section outlines the international legal framework governing transparency in treaty-based arbitration, focusing on key instruments like the UNCITRAL Rules on Transparency and the Mauritius Convention (Entered into force 2017), as well as provisions in modern investment treaties. It examines how transparency obligations interact with principles like state sovereignty and public interest, raising questions about the limits of transparency versus domestic confidentiality and sensitive information.
Part II – In Respect of International Investment:
This part analyzes confidentiality and transparency within investor–state contracts and disputes. It highlights legitimate reasons for confidentiality (e.g., trade secrets, state security) while acknowledging challenges to accountability in matters of public interest. The section reviews recent arbitral cases balancing these interests and notes a trend toward treaties that promote transparency while protecting sensitive data.
Part III – In Respect of Private International Law:
Focusing on private law, this section explores how contractual confidentiality clauses and procedural rules affect transparency. It discusses the impact of governing law and arbitration seat on confidentiality standards and how public international treaty obligations may override private agreements, especially in disputes involving both public and private concerns. It highlights the delicate balance that parties and tribunals must maintain between transparency and confidentiality.
Overall Objective:
Through these three perspectives, the panel aims to provide a nuanced and comparative understanding of the dichotomy between confidentiality and transparency in treaty-based investment contracts. It will offer insights into the legal foundations, policy considerations, and procedural strategies that can help reconcile these competing imperatives, ensuring both the protection of legitimate private interests and the promotion of trust in the international dispute resolution system