Treaty Provisions on Confidentiality and Transparency
The treaty, contract or law containing the parties’ consent to arbitration may include specific provisions on confidentiality and transparency. Such provisions apply to the arbitration proceeding based on that instrument of consent. They are usually recited in the Tribunal’s first procedural order.
For example, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (UNCITRAL Rules on Transparency) may be applied to an ICSID case by agreement of the State parties to an investment treaty or by agreement of the disputing parties, and ICSID may be designated to act as the repository of case documents (see e.g. Procedural Order No. 2 in BSG Resources Limited v. Republic of Guinea (ICSID Case No. ARB/14/22)). The UNCITRAL Rules on Transparency contain detailed provisions on publication of case related information, publication of documents, submissions by a third person, submissions by a non-disputing Party to the treaty, hearings, and exceptions to transparency.
States parties to the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Mauritius Convention on Transparency) agree to apply the UNCITRAL Rules on Transparency to all investor-State arbitrations: (i) based on investment treaties concluded before April 1, 2014; (ii) subject to any reservation allowed under the Convention; and (iii) in regard to cases commenced after the Convention enters into force.
A further example of a treaty provisions on confidentiality and transparency is found in Article 10.21 of the United States-Dominican Republic - Central America Free Trade Agreement (CAFTA).