What an absurdity to postulate that confidentiality is not part and parcel of commercial arbitration. It is inconceivable that such a procedure, whether domestic or international, should take place in the public eye. If, as Ihering wrote, form is the twin sister of freedom, then confidentiality is the twin sister of arbitration. Just think what would happen if hearings were open to all and if requests, briefs and evidence were freely available in the media and on the Internet. Imagine the situation if company accounts, know-how, reports of negotiations and internal correspondence were divulged to the general public.

I am utterly convinced that confidentiality is an inherent part of international commercial arbitration, subject to the sole exception of absolute and overriding public interest.

The inseparable link between arbitration and confidentiality derives from the very origins of arbitration as a method of dispute resolution, from its raison d'être and the manner in which it has been practised over the centuries.

Arbitration was originally conceived to offer merchant guilds a way of resolving their disputes internally, without recourse to State courts. Holdsworth mentions the existence of an English law relating to arbitration dating from 1698. 1 Blackstone2 notes 'the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law'. This trend continued throughout the 19th and 20th centuries and moreover still persists in a number of sectors, as illustrated in France by the film, 3 cocoa4 and wool5 industries. It is also found in several other fields, such as shipping, 6 metallurgy and the cotton trade. 7

Over the years, arbitration has come to be widely applied internationally, in both public law (especially boundary disputes) and commerce. International commerce should here be understood broadly as meaning any economic flow across borders. It is nowadays [Page82:] trite to say that arbitration has become the customary method of resolving international trade disputes.

Confidentiality thus has its roots in the desire for a system of justice suited to the world of commerce. Even in Roman times, although there were similarities between arbitration and ordinary proceedings, it was an established principle that discussions should not be public: 'arbitration reflected a desire for privacy, for hearings in camera'. 8

Confidentiality is justified in particular by the need to maintain the secrecy inherent in business dealings. This is a principle affirmed in Article 2.1.16 of the UNIDROIT Principles of International Commercial Contracts. 9 Above and beyond the protection of manufacturing, industrial and trade secrets, the players in international and domestic trade are for their part also vulnerable to the damage caused by the publicity given to their disputes. 10 Revealing the mere existence of a dispute can be harmful and is liable to have immediate repercussions on the price of a company's shares.

Confirmation of this position is found amongst practitioners, including the users of arbitration. A survey conducted by the London Business School in 1992 shows that users of international arbitration in Europe and America consider confidentiality to be one of its principal advantages. 11

Their view is shared by States, which 'are even more concerned about confidentiality, on account of both their ambivalent activity and their enduring status. Although States nowadays often play a commercial role and are involved in this capacity in international commercial dispute resolution proceedings, they also and above all have a role to play as public authorities. It is for this reason that they are usually anxious to prevent their sovereign image being tarnished by any untoward publicity given to purely commercial disputes, whatever their outcome.' 12

The recognized and respected arbitration practitioner, Stephen Bond, speaking from his experience as a former Secretary General of the ICC International Court of Arbitration, has confirmed that this is an essential feature in the eyes of arbitration users: 'It became apparent to me very soon after taking up my responsibilities at the ICC that the users of international commercial arbitration, i.e. the companies, governments and individuals who are parties in such cases, place the highest value upon confidentiality as a fundamental characteristic of international commercial arbitration.' 13

Cindy G. Buys shares this view. 14 The parties seek to prevent third parties from becoming informed of any allegations made against them and, especially if they are the losing parties, are usually not in favour of the award being published once the decision has been rendered, particularly where they are involved in other related proceedings in [Page83:] which similar claims have been made. Lastly, confidentiality gives the parties room for manœuvre, allowing them to adopt positions that would have been difficult or even impossible in public proceedings. This explains why arbitration may frequently lead to a settlement.

Is confidentiality linked to an underlying feature of international arbitration, namely the rejection of alterity? Even in States where the judiciary is independent, the law non-discriminatory and where arbitration enjoys the support of the courts, there is always a strong reluctance to submit to someone else's courts. Such distrust is innate and therefore not always justified. No matter what one might be tempted to say or think and regardless of the reasons on which it is based, such rejection is forceful and has strongly contributed to the growth of arbitration in international matters. From a party's standpoint, it is inconceivable that its secrets and rules of conduct be exposed to the courts of the other party and thus to the gaze of a foreign public. This underlying characteristic of arbitration has the effect of increasing the need for confidentiality.

The concern for confidentiality could therefore be said to belong to the very nature of arbitration. So much so that, in the words of Roland Ziadé, 'the confidentiality of ICC arbitration is often presumed by the arbitrators and respected by the parties'. 15

However, it is not sufficient to proclaim that confidentiality has its basis in the very essence of arbitration and that this gives rise to an implied obligation of confidentiality. I am of course fully in agreement with Eric Loquin16 when he says that, when interpreting the parties' intentions, it is necessary to take account of the fact that one of the reasons for their undertaking arbitration is the advantage of confidentiality that arbitration, as private justice, can offer. He thinks it reasonable to consider the obligation of confidentiality as implicit and as one of the many obligations arising by nature from any contract, and concludes that the implicit nature of the obligation, which leads to a presumption of confidentiality in arbitration, can be explained by the existence of a fallback practice that comes into play when the parties have not expressed their intentions and which may have become a usage of international arbitration. We should be cautious, however, not to content ourselves with this wise statement.

Indeed, the parties' predilection for the confidentiality of arbitration is doubtless not sufficient to give it the force of a principle. 17 Why?

Privacy of arbitration

Arbitration is a private procedure based on consent. It is from this privacy that the parties derive their right to exclude any person foreign to the proceedings. This is the reason why arbitration is not simply private justice but justice rendered in private. 18[Page84:]

Hearings are held outside the public gaze and behind closed doors. Unless otherwise authorized by the parties and the arbitral tribunal, only the parties, their counsel, the arbitrators, witnesses, experts, interpreters and technicians may attend the hearings.

In some quarters, confidentiality is regarded as the consequence of such privacy: 19 'The implication is that what proceeds in the arbitration will not only be kept private between the parties but will remain absolutely confidential.' 20

In Eastern Saga, Leggatt J. stated: 'The concept of private [or confidential] arbitration derives simply from the fact that the parties have agreed to submit to arbitration particular disputes arising between them and only them.' 21

However, objections have been raised against the very idea that confidentiality results from the private nature of arbitration. Whilst some commentators consider the two notions to be interdependent, 22 others believe that no connection has been established between confidentiality and the non-public nature of the hearings (and deliberations). This has led to the distinction drawn by some writers23 between confidentiality and the private nature of hearings. In practice, while most arbitration institutions mention the privacy of hearings, they are more often than not silent on the question of confidentiality.

This was a distinction upon which the Australian High Court relied when ruling in Esso/ BHP v. Plowman. It held that 'the privacy of the hearings does not necessarily mean that the information or documents provided by one party to the other are confidential'. 24

As will be seen below, there was a conflict between public interest and confidentiality, in which the former prevailed over the latter.

The question thus arises as to whether confidentiality is a right, which can be defeated only by a contrary intention displayed by the parties, or whether it must necessarily be the subject of a specific clause in the arbitration agreement, the institution's rules or the terms of reference.

Traditional thinking, to which I lend my support, is in favour of establishing confidentiality as a general principle, 25 but it has to be observed that the question has become controversial. 26[Page85:]

Existence of a principle of confidentiality

Matthieu de Boisséson believes that international commercial arbitration brings with it an assumption of confidentiality, and Emmanuel Gaillard has observed that the confidentiality of arbitration continues to be characterized as a principle and is liable to be defeated only by a joint expression of a contrary intention by the parties. 27 This principle has been clearly confirmed by both English and French case law.

In England, the Court of Appeal, ruling in Dolling Baker c. Merret in March 1999, 28 held that confidentiality was an implied obligation resulting from the privacy of arbitration : 'What is relied upon is, in effect, the essentially private nature of an arbitration . . . their very nature is such that there must, in my judgment, be some implied obligation on both parties not to disclose or use for any other purpose any documents prepared for and used in the arbitration, or disclosed or produced in the course of the arbitration.'

In Hassneh, 29 the same Court of Appeal confirmed the existence of an implied duty of confidentiality but, in contrast to Dolling Baker, gave as the reason business efficacy. Taking its analysis further in Ali Shipping Corporation v. Shipyard Trogir, 30 the Court of Appeal then held that this duty existed by operation of law.

In France, the Paris Court of Appeal, ruling in Ojjeh, 31 held that 'it was in the nature of arbitration to ensure utmost discretion in the resolution of private disputes, as agreed between the parties'. According to Emmanuel Gaillard, this decision ushered confidentiality as a principle of international arbitration into positive law in France. Ruling on an application to set aside an award rendered in London, the Court of Appeal considered that 'as the claimant had raised its objections in a court that manifestly lacked jurisdiction, it thereby allowed facts that should have remained confidential to be discussed in public'.

Principle of confidentiality brought into question

The above decisions predate the all too famous judgment of Australia's High Court in Esso/ BHP v. Plowman, which, in deciding that confidentiality was not an essential characteristic of arbitration proceedings under Australian law, marked a dramatic turn of events that sent shock waves through the world of arbitration.

Despite the view taken in Dolling-Baker and subsequently by Colman J. in Hassneh Insurance, I do not consider that, in Australia . . . we are justified in concluding that confidentiality is an essential attribute of a private arbitration imposing an obligation on each party not to disclose the proceedings or documents and information provided in and for the purposes of the arbitration. . . .

It follows that the case for an implied term must be rejected for the very reasons I have given for rejecting the view that confidentiality is an essential characteristic of a private arbitration. In the context of such an arbitration, once it is accepted that confidentiality is [Page86:] not such a characteristic, there can be no basis for implication as a matter of necessity . . . In my view . . . this approach must also be rejected. 32

Thereupon, doubt took hold of practitioners over the existence of a principle of confidentiality.

In this particular case, however, the State could be considered rightly entitled to obtain information on grounds of public interest. 33 Regardless of the judge's independence, it would appear in my view to be a political decision due to the special circumstances of the case. At issue was the pricing of electricity, which in other words meant the payments made by consumers. There could hardly be a more sensitive subject, amply demonstrating the conflict between confidentiality and public interest.

In United States v. Panhandle Eastern Corp, 34 a District Court likewise held that there was no implied obligation of confidentiality. The US Government, which was involved in the proceedings as guarantor, asked that it be provided with one of the documents produced by Panhandle in an ICC arbitration. The District Court found that neither the arbitration agreement nor the ICC Rules of Arbitration place the parties under an obligation of confidence and inferred that the Government was entitled to have access to the documents, absent a duty of confidentiality.

In Sweden, the Bulbank saga illustrates the difficulties that can arise when there exists a principle of confidentiality. At the outcome of an arbitration with A.I. Trade Finance Inc., the Bulgarian Foreign Trade Bank Ltd (Bulbank) raised a jurisdictional objection. Arbitral jurisdiction was upheld in favour of A.I. Trade Finance, which then had the award published in Mealey's International Arbitration Report.

The delicate question of publication was referred to the Swedish courts. Whilst the first instance court in Stockholm35 held that confidentiality was an obligation implied in any arbitration agreement, the Court of Appeal36 took the opposite position, finding that confidentiality was neither a legal obligation nor an implied term resulting from the arbitration agreement. The Supreme Court37 ruled that there was no implied obligation of confidentiality.

Australian case law would even appear to have shaken the Paris Court of Appeal, although happily not for too long. Ruling on 22 January 2004 in the NAFIMCO38 case, the Paris court seemed to cast doubt on the principle of confidentiality. An application was made to set aside an ICC award. In keeping with the Ojjeh judgment, it was alleged that the application was unfair and was made with the sole intention of rendering public facts that should have remained confidential. The court dismissed the motion to set aside but, in answer to the counterclaim alleging a violation of confidentiality as a result of the application, considered 'that the company Foster fails to provide explanations for the existence of and reasons for a principle of confidentiality in French international arbitration law, irrespective of the nature of the arbitration, and for any waiver of this principle exercised by the parties, having regard to the rules they had chosen'. The [Page87:] court concluded that 'the party claiming compensation for a breach of confidentiality in arbitration must explain the existence of and reasons for a principle of confidentiality in French international arbitration law'.

We thus find ourselves in a position of uncertainty due to the doubt cast on confidentiality in arbitration by an albeit minority tendency in case law.

Possible solution

It would therefore seem that if there is no general principle of confidentiality, the source of this obligation must lie in the arbitration agreement or in the arbitration rules. This solution has the advantage of being accepted in all legal systems, whether or not they recognize a general principle of confidentiality.

Many writers are indeed now advocating the inclusion of confidentiality clauses in arbitration agreements, institutional rules or terms of reference. 39

However, only the LCIA Arbitration Rules would appear to contain a clear provision in this respect:

One of the most significant features distinguishing the LCIA Rules from other institutional rules is its express provisions regarding confidentiality. Article 30 enshrines confidentiality as a general principle which applies not only to arbitrators, but also to the parties themselves. Thus, the parties, unless they expressly agree in writing to the contrary, undertake to keep confidential all awards, all materials created for the purpose of the arbitration, as well as all other documents produced by another party in the arbitration, which are not already in the public domain, and except to the extent that disclosure may be legally required. Article 30.2 states that the Arbitral Tribunal's deliberations are confidential to its members (in other words what happens in the deliberations should not be passed on to the parties by any of the arbitrators). Finally Article 30.3 provides that the LCIA Court will not publish any award without the parties' consent. 40

It should be said that Article 20(7) of the ICC Rules of Arbitration gives the arbitral tribunal the possibility to protect information whose confidentiality is essential, but does not make this an obligation. Article 46 of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce enjoins the arbitral tribunal to maintain the confidentiality of the arbitration, which is the right direction to take. Let us hope that appropriate provisions will be included in the ICC Rules of Arbitration as part of the revision that is currently under way.

In practice, confidentiality clauses are relatively rare and do not necessarily cover the proceedings.

In a previous article41 we have suggested the practice of inserting in the terms of reference or similar document a clause along the following lines:

Unless disclosure is required (i) by statute, ordinance or stock market regulations or (ii) to protect the parties, the parties and the members of the Arbitral Tribunal undertake to [Page88:] keep this arbitration private and confidential and not to publish, disclose or communicate any information relating to this arbitration, in particular the procedure followed, documents exchanged, evidence produced and all procedural formalities.

However, each of the parties may disclose such information to any person bound by an obligation of confidentiality. The parties shall make this clause known to any third party that participates in this arbitration, in whatever capacity, including witnesses and experts.

This clause can-and should-be adapted according to the nature of the arbitration, as the degree of confidentiality is variable. Jean François Poudret and Sébastien Besson have rightly pointed out that there is no single concept of confidentiality in arbitration and that it varies depending on the situations it is intended to cover. 42

Indeed, the scope of confidentiality depends chiefly on the will of the parties, with the result that their obligations in this respect will vary in extent. For instance, they may cover the entire proceedings (deliberations, hearings, document production), the very existence of the arbitration, the content of the award, etc.

In the present context, while not denying their importance, I will not address the secrecy of deliberations or the confidentiality of documents produced during arbitration proceedings.

The conclusion I draw from the above analysis is that if the parties wish to benefit from maximum confidentiality, they should resort to a clause.

What remedies are available in the event of a breach of confidentiality?

Neither national legislation nor institutional rules say anything about sanctions and there are very few decisions on the subject.

Several factors are at play here: the courts' instinctive timidity when assessing damages and the widespread and persistent refusal by parties to anticipate what should happen in the event of a breach of confidentiality (this is the same syndrome as we find in the drafting of arbitration clauses) and consequent rarity of confidentiality clauses. This means that there is no choice but to let parties freely decide on appropriate compensation in their confidentiality clauses, if this is what they want.

In theory, 'courts should find sanctions which, on the one hand, are sufficiently onerous to be effective in deterring parties from revealing confidential information and, on the other hand, do not go as far as setting aside the arbitral award, as a party that is dissatisfied with an award could be tempted to use such a drastic sanction to its advantage'. 43

What first comes to mind is a monetary sanction. In the Ojjeh case, no remedy could in principle be sought in the French courts, as the award that was being challenged had been rendered abroad. An application to set aside the award was made to the Paris Court of Appeal, which ordered the plaintiff to pay the defendant damages amounting to 200,000 francs (approximately 30,000 euros). Such a sum is utterly insufficient and no [Page89:] doubt less than the fees the injured party must have paid. It needs to be said that the courts often award the full amount sought, which means that the amounts requested for such offences are in most cases too low. However, the courts cannot rule ultra petita, so it is up to counsel to ensure that the claims are sufficient.

In practice, sanctions should be heavy if they are to be an effective deterrent.

I am not swayed by the argument that 'there will always be cases in which a party unwittingly, or at least unintentionally, reveals a fact linked to the existence of an arbitration'. 44

Another approach is to forbid disclosure altogether. Ideally, this should be requested at the start of the procedure. If it is requested when a breach of confidentiality has already occurred, it may quite conceivably be combined with other sanctions. In the case Publicis v. True North, 45 the company True North had a press release issued by the news agency Bloomberg, in which reference was made to the existence of a dispute, the fact that it was the subject of an arbitration and the amount claimed. The presiding judge of the Commercial Court issued an injunction prohibiting 'any disclosure intended to provide the public with information about the existence, content or subject of its dispute with S.A. Publicis, currently undergoing arbitration, unless evidence is provided of statutory obligations of disclosure incumbent on those companies'. I fully endorse such an approach and do not consider it to be incompatible with concurrent monetary sanctions.

Undoubtedly, the most drastic sanction to have been ordered is that of a first instance court in Stockholm, which went as far as declaring the arbitration agreement void. Although writers have confirmed that such a sanction is conceivable to the extent that a breach of confidentiality could be considered a violation of a fundamental obligation, they have been much more sceptical over its usefulness. 46 The decision was strongly criticized by commentators and was overturned in Sweden by a court of appeal and then by the Supreme Court.

As noted by Laurence Burger, 'the avoidance of an arbitration clause on account of a breach of confidentiality is a solution which, if confirmed, could undermine the very essence of arbitration'. 47 It would encourage abuse by parties who might invoke this ground in order to contest the validity of the arbitration, which would have an opposite effect to that sought, as the dispute would be brought before the courts and thus made public. 48

It is thus a fact that, unless there are express contractual provisions on the subject, sanctions against violations of confidentiality remain ill-defined. Parties should therefore be encouraged to provide for this situation in their initial agreement. [Page90:]

One possible exception to confidentiality

Since confidentiality is, in my view, inherent to arbitration, can there be any exceptions to this principle? I believe the only possible exception is the public interest, whether this derives from statutory or contractual obligations or simply from a legitimate requirement of transparency.

There is and cannot be any denying that where there is a statutory obligation of disclosure to minority shareholders, the courts, the tax authorities, etc., confidentiality cannot be used to evade that obligation. However, the wording of any such statute must be clear, and any uncertainty should, I believe, be resolved to the advantage of confidentiality.

Such priority-which is quite understandable-is one of the underlying features of the unique procedure known as ICSID arbitration. The term arbitration has a special meaning here, for although ICSID arbitration takes its principal features from international commercial arbitration, it has gradually moved away to form an identity of its own. It is 'a cuckoo in the nest of contractual arbitration'. 49 Its singularity is reflected in both its purpose and the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). In the ICSID context, ordinary arbitration, where agreement is essential and fundamental, has been transformed into 'an entirely different and quasi-compulsory system of international arbitration to which investors may resort when they consider that action by a State where they have invested causes serious damage to their economic interests'. 50 Unlike the disputes that typify international commercial arbitration, those between foreign investors and host States often raise matters of public interest that necessarily call for a different approach to the balance between confidentiality and transparency. Whereas contractual arbitration is subject to the principle of confidentiality, ICSID arbitration is guided at all stages of the proceedings by the principle of transparency.

It therefore behoves us to describe the transparency of ICSID arbitration, so as to better understand its raison d'être and the difference that sets it apart from normal arbitration.

Transparency of ICSID arbitration

Through the ICSID website, anyone may have access to most cases and follow their progression. Unless a party objects, decisions are freely accessible on the Centre's website and published in the ICSID Review. Also, third parties are allowed to attend and intervene in proceedings, which would be out of the question for an adept of traditional arbitration.

a) Existence of an arbitration

It is the policy of ICSID to maintain a register (accessible on its website) of all arbitration requests it receives. Any person can have direct access to full case details, including the names of the parties and a summary of the main features of the dispute. 51 This [Page91:] approach is in marked contrast to that traditionally taken by commercial arbitration institutions, where the anonymity of the parties is respected and no information made available about pending cases and past awards. 52

b) Hearings and third party involvement

Rule 32(2) of the ICSID Arbitration Rules originally provided as follows: 'The Tribunal shall decide, with the consent of the parties, which other persons besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal may attend the hearings.' In the face of objections over the opacity of a system that is supposed to be about the public interest, 53 ICSID undertook to reflect on transparency, and these reflections led to the adoption of the 2006 Rules, in which Rule 32(2) reads as follows: 'Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.' Hence, hearings that were originally private are now open to anyone, unless one of the parties objects-and even that is not certain! The principle is therefore one of open hearings. 54 This new rule reverses the former assumption and encourages the holding of public hearings. Such a solution would be unimaginable in contractual arbitration, where the privacy of the proceedings is of the very essence.

The same goes for the involvement of third parties, who should normally be unaware of the existence of the proceedings. All that would appear to be missing is full public access to the arbitral tribunal's deliberations, including television coverage! In my view, there should be limits to the need for transparency.

The intervention of amici curiae was first mentioned in the context of WTO dispute resolution, 55 and then spread to all so-called public or semi-public arbitration, 56 although it fortunately stopped short of ICC arbitrations involving States. Initially, an ICSID arbitral tribunal rejected the intervention of an amicus curiae in the Aguas de Tunari 57case, but a different approach was subsequently taken in the Aguas Argentinas et al. v. Argentina58 and Aguas de Santa Fe et al. v. Argentina59 cases and has since been endorsed by the inclusion of a provision on amici curiae in Article 37 of the ICSID [Page92:] Arbitration Rules. The second paragraph allows the submission of amicus curiae briefs under certain conditions. 60 The influence of the US can certainly be felt here.

c) Confidentiality of documents in arbitration proceedings

According to Section 48(5) of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, '[t]he Centre shall not publish the award without the consent of the parties'. The same requirement is also expressed in Regulation 22(2) of the Administrative and Financial Regulations. The ICSID Secretariat actively encourages parties to ICSID proceedings to allow their awards to be published on the Centre's website or in the ICSID Review. Almost half of the cases are made public in this way. Even when the Centre fails to obtain the parties' agreement to the publication of their award, it provides 'excerpts of the legal reasoning of the Tribunal' in accordance with Rule 48(4) of the ICSID Arbitration Rules. If both parties fail to agree, it is moreover not uncommon for one of them to proceed of its own accord to have the award published elsewhere, such as in the Journal du droit international or International Legal Materials. 61

The publication of documents has been the subject of much discussion since Biwater Gauff v. Tanzanie. 62 This was the first ICSID decision to deal with the question. It weighed up the two opposing interests of the need for transparency and the protection of the integrity of the proceedings. The dispute arose out of the privatization of the management and operation of a system for distributing and processing wastewater in Tanzania's capital city. The investors (a company subject to Tanzanian law owned by the UK firm Biwater International Limited, and a German company HP Gauff Ingenieure GmbH) became aware that the minutes of a meeting held by the arbitral tribunal had been made available on a website and therefore asked for Tanzania to be ordered not to make material from the proceedings available to the public.

The arbitral tribunal noted that there was now a strong trend towards transparency in treaty-based arbitration. 63 It acknowledged that the applicable provisions did not contain anything that could justify its allowing the claimants' request, 64 yet recalled that there were numerous arguments in favour of the need to maintain the confidentiality of the proceedings and to limit any communications that would exacerbate the dispute.

Before coming to its decision, the arbitral tribunal set out a certain number of findings. Firstly, the divulgation of the tribunal's decisions can be considered only on a case-by-case basis and can be allowed if the tribunal first gives its permission. On the other [Page93:] hand, the publication of reports of hearings, briefs, pleadings, correspondence between the parties and the tribunal and any documents produced by the other party can undermine the integrity of the arbitral process and therefore must not be allowed.

The arbitral tribunal then found that the clash between necessary transparency and the integrity of the arbitral process is most acute while the proceedings are in progress. At such time, the divulgation of documents must be understood narrowly. However, any divulgation that occurs after the award has been rendered is less shocking.

On the basis of these conflicting interests, the arbitral tribunal issued a rather strict order dated 29 September 2006, in which it instructed the parties not to make public any of the documents during the procedure. 65

The confidentiality of the documents produced during the proceedings thus appears to be maintained, despite urgent appeals from the advocates of transparency.

The fact remains, however, that ICSID arbitration stands out on its own. It is characterized by the overriding influence of the public interest, which must necessarily prevail. Furthermore, transparency can act as a deterrent against any temptation States might have to mistreat foreign investors. ICSID's approach is therefore fully justified-but it is important to avoid any possible confusion with traditional arbitration.

* * *

What conclusions can be drawn? Arbitration as we know it today has become established throughout the world. In practice, confidentiality remains one of its main attractions. The doubt cast on confidentiality in certain quarters seems to me to be detrimental to arbitration, which thereby loses one of its key virtues, especially for businesses. After all, what do arbitrators want, other than that their awards become known? And what do counsel want, other than that it be know that they acted in such and such a big case? This is irrelevant to businesses. Their concern is to have their disputes resolved discreetly, in accordance with law and with that little extra that characterizes arbitration.

I therefore strongly hope that confidentiality will remain an integral part of commercial arbitration, both domestic and international, and that it will not be tainted by special procedures arising from international investment treaties.

1
P. Neill, 'Confidentiality in Arbitration' (1996) 12 Arbitration International 287; regarding prior practice, see A. Lefebvre-Teillard, 'Arbiter, Arbitrator seu amicabilis compositor' Rev. arb. 2008.369.

2
P. Neill, supra note 1.

3
Arbitration rules of the organizations Arbitrage et conciliation pour le cinéma et l'audiovisuel (ACPCA) and Association de médiation et d'arbitrage des professionnels de l'audiovisuel (AMAPA). The former handles disputes between companies in the film and broadcasting sector, while the latter handles disputes between authors or directors and producers.

4
Arbitrations relating to cocoa are organized under the auspices of the Federation of Cocoa Commerce, which was created in 2002 by the merger of the Cocoa Association of London and the Fédération du commerce des cacaos in Paris.

5
The Comité central de la laine et des fibres associés (CCLFA) includes an arbitration commission with rules of arbitration directly modelled on the international wool arbitration treaty of the Fédération lainière internationale (FLI).

6
Arbitration Rules of the Chambre arbitrale maritime de Paris.

7
Rules of the International Cotton Association Limited.

8
B. de Loynes de Fumichon & M. Humbert, 'L'arbitrage à Rome' Rev. arb. 2003.285, 343, esp. para. 44, translation from the original French.

9
Article 2.1.16 of the UNIDROIT Principles of International Commercial Contracts reads as follows: 'Where information is given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose that information or to use it improperly for its own purposes, whether or not a contract is subsequently concluded.'

10
P. Cavalieros, 'La confidentialité de l'arbitrage' Gaz. Pal., Les cahiers de l'arbitrage (14-15 December 2005) 6; expert report of Stephen Bond in Esso/BHP v. Plowman (1995) 11 Arbitration International 273.

11
Editorial 'The Decision of the High Court of Australia in Esso/BHP v. Plowman'(1995) 11 Arbitration International 231.

12
E. Gaillard, 'Le principe de confidentialité de l'arbitrage commercial international', Recueil Dalloz Sirey, 1987, 153 at 154-55, translation from the original French. Things have since changed due to the International Centre for Settlement of Investment Disputes (ICSID) and bilateral investment treaties.

13
Supra note 10 at 273.

14
C. G. Buys, 'The Tensions between Confidentiality and Transparency in International Arbitration' (2003) 14 The American Review of International Arbitration 121.

15
R. Ziadé, 'Comparaison entre les trois principaux règlements d'arbitrage : CIRDI, CNUDCI et CCI' in Le choix d'un règlement d'arbitrage, Revue Droit & Affaires, 6th ed. (2008) 21, translation from the original French.

16
E. Loquin, 'Les obligations de confidentialité dans l'arbitrage' Rev. arb. 2006.323 at 352.

17
E. Gaillard, supra note 12 at 155.

18
T. Clay, L'arbitre (Dalloz, 2001) at para. 771.

19
J. Jakubowski, 'Reflections on the Philosophy of International Commercial Arbitration and Conciliation' in J.C. Schultsz & A.J. van den Berg, eds., The Art of Arbitration: Essays in International Arbitration, Liber Amicorum Pieter Sanders (1982) 175 at 177; F. Dessemontet, 'Arbitration and Confidentiality' (1996) 7 The American Review of International Arbitration 299 at 313-14.

20
L. A. Mistelis, 'Confidentiality and Third Party Participation: UPS v. Canada and Methanex Corporation v. United States' (2005) 21 Arbitration International 211.

21
Oxford Shipping Co. Ltd. v. Nippon Yusen Kaisha (The Eastern Saga) [1984] 2 Lloyd's Rep. 373.

22
L.Y. Fortier, 'The Occasionally Unwarranted Assumption of Confidentiality' (1999) 15 Arbitration International 131.

23
E. Loquin, supra note 16; expert report of Dr Julian D.M. Lew in Esso/BHP v. Plowman (1995) 11 Arbitration International 283; E. Bertrand, 'Confidentialité de l'arbitrage : évolution ou mutation après l'affaire Esso/BHP v. Plowman' RDAI/IBLJ 1996.169; A.H. Raymond, 'Confidentiality in a Forum of Last Resort: Is the Use of Confidential Arbitration a Good Idea for Business and Society?' (2005) 16 The American Review of International Arbitration 479.

24
E. Loquin, supra note 16 esp. at 341, translation from the original French.

25
E. Loquin, supra note 16; M. de Boisséson, Le droit français de l'arbitrage interne et international (GLN Joly 1990) at 802.

26
C. Muller, 'La confidentialité en arbitrage commercial international : un trompe-l'œil ?' (2005) 23 ASA Bulletin 216; P. Cavalieros, supra note 10; J. Paulsson & N. Rawding, 'The Trouble with Confidentiality' (1994) 5:1 ICC ICArb. Bull. 48.

27
Supra note 12 at 156.

28
[1990] 1 WLR 1205 at 1213.

29
Hassneh Ins. Co. of Israel & Others v. Steuart J. Mew, [1993] 2 Lloyd's Rep. 243.

30
Court of Appeal (Civ. Div.), 19 December 1997, [1988] 1 Lloyd's Rep. 643; Rev. arb. 1998.579 (Annot. L. Burger).

31
Aita v. Ojjeh, 18 February 1986, Rev. arb. 1986.583 (Annot. G. Flécheux), translations from the original French.

32
(1995) 11 Arbitration International 235 at 246.

33
C. Muller, supra note 26.

34
Delaware 1988, 118 F.R.D. 346.

35
10 September 1998, Rev. arb. 1999.670 (Annot. L. Burger).

36
Svea, 30 March 1999, RDAI/IBLJ 1999.481 (Annot. Imhoos).

37
27 Oct. 2000, [2002: 2] Stockholm Arbitration Report 144; Rev. arb. 2001.821 (Annot. S. Jarvin & G. Reid).

38
Société National Company for Fishing and Marketing 'Nafimco' v. Société Foster Wheeler Trading Company AG, Rev. arb. 2004.647 (Annot. E. Loquin), translations from the original French.

39
C. Muller, supra note 26; H. Bagner, 'The Confidentiality Conundrum in International Commercial Arbitration' (2001) 12:1 ICC ICArb. Bull. 18; H. Bagner, 'Confidentiality: A Fundamental Principle in International Commercial Arbitration?' (2001) 18 Journal of International Arbitration 243.

40
A. de Lotbinière McDougall, 'LCIA Arbitration' in Le choix d'un règlement d'arbitrage, Revue Droit & Affaires, 6th ed. (2008) 36.

41
S. Lazareff, 'Terms of Reference' (2006) 17:1 ICC ICArb. Bull. 21.

42
J.-F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Bruylant/LGDJ/Schulthess, 2002) at para. 368.

43
C. Muller, supra note 26, translation from the original French.

44
L. Burger, Case Comment on Stockholm judgment, 10 September 1998, Bulgarian Foreign Trade Bank Ltd. v. A.I. Trade Finance Inc., Rev. arb. 1999.670, translation from the original French.

45
Trib. com. Paris, 22 February 1999, Bleustein et autres v. société True North Inc. et société FCB International, Rev. arb. 2003.189, translation from the original French; F. Fages, 'La confidentialité de l'arbitrage à l'épreuve de la transparence financière' Rev. arb. 2003.20.

46
Supra note 44.

47
Ibid.

48
E. Loquin, supra note 16.

49
A. Prujiner, 'L'arbitrage unilatéral : un coucou dans le nid de l'arbitrage conventionnel' Rev. arb. 2005.63.

50
B. Stern, 'Un petit pas de plus : l'installation de la société civile dans l'Arbitrage CIRDI entre Etat et investisseur' Rev. arb. 2007.3 at 42, translation from the original French.

51
OECD, 'Transparency and Third Party Participation in Investor-State Dispute Settlement Procedures', Working Papers on International Investment, 2005/1, in International Investment Law: A Changing Landscape. A Companion Volume to International Investment Perspectives (OECD, 2005).

52
E.g. ICC arbitration.

53
Such objections are made by pressure groups and NGOs wishing to be involved in the proceedings as well as by the State parties themselves. Strong criticism of the lack of transparency in ICSID arbitration was for instance expressed by Bolivia, Venezuela and Nicaragua before they withdrew from the ICSID system.

54
B. Stern, supra note 50 at 28, translation from the original French.

55
Decision of Appellate Body in Shrimps-Tortoises, Appellate Body Report in Shrimps-Tortoises, Appellate Body Report in United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 Oct. 1998) 103-107.

56
B. Stern, supra note 50 at 6, translation from the original French.

57
Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent's Objections to Jurisdiction, 21 October 2005.

58
Aguas Argentinas S.A Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae.

59
Aguas Provinciales de Santa Fe S.A., Suez, Sociedad General de Aguas de Barcelona S.A. and Interragua Servicios Integrales de Agua S.A. v. Argentine Republic, ICSID Case No. ARB/03/17, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 17 March 2006.

60
Rule 37(2) of the ICSID Arbitration Rules reads as follows: 'After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the "non-disputing party") to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address a matter within the scope of the dispute; (c) the non-disputing party has a significant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission.'

61
Supra note 51.

62
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3, 29 September 2006, available at <http://ita.law.uvic.ca/documents/Biwater-PONo.3.pdf>; C. Knahr & A. Reinish, 'Transparency versus Confidentiality in International Investment Arbitration-The Biwater Gauff Compromise' (2007) 7 The Law and Practice of International Courts and Tribunals 97.

63
Ibid. at para. 114ff.

64
Ibid. at para 121ff.

65
Ibid. at para 163.