Confidentiality and third party participation in international investor-state arbitration

Awojobi, Adeola Falilat

Confidentiality and third party participation in international investor-state arbitration

Master Thesis

2015

Publisher

University of Cape Town

Department

Department of Commercial Law

Faculty

Faculty of Law

Abstract

The contractual nature of arbitration as a form of alternative dispute resolution in the context of cross-border/international disputes traditionally emphasises confidentiality as one of the fundamental characteristics of international arbitration. Confidentiality is often assumed to be a common feature and advantage of international commercial arbitration, and the privacy of arbitral proceedings has facilitated and encouraged recourse to arbitration. However, the issue of confidentiality has a different dimension and is limited in the context of international investment and trade disputes. The participation of States, State entities, sub-divisions and agencies in international disputes shifts the emphasis from privacy and confidentiality to transparency and accountability. This study analyses the role of confidentiality in investor-State arbitration, noting that confidentiality is not always preserved in many respects and stages throughout the arbitration proceedings. The paper considers the issues that challenge the legal effectiveness of confidentiality in international investor-State arbitration and the development towards transparency. In particular, the paper examines the participation of non-disputing/third parties in investor-State arbitration, the different approaches of major arbitral institutions towards the issue of confidentiality, and the arguments for and against confidentiality in relation to transparency. It concludes by making recommendations in the context of the development of investor-State arbitration.

Keywords

Commercial Law

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