From a dissenting opinion on the issue of document confidentiality in the Telefonica v. Mexico ICSID case:
3. The majority's decision establishes, de facto, a presumption of confidentiality by prohibiting Parties from disclosing: (i) the records or minutes of the hearings; (ii) the documents submitted by the Parties in this proceedings; (iii) the pleadings or written memorials of the Parties and their annexes; and (iv) the correspondence relating to these proceedings (exchanged between the Parties or between the Parties and the Tribunal). The Parties maintain the right to request the lifting or modification of this confidentiality restriction, but all such requests must be duly justified. This presumption clearly responds to a general interest of confidentiality. Nevertheless, I consider that this presumption is being applied in an overly broad and unlimited manner, without prior control having been exercised by the Tribunal. This can hardly be characterized as a "solution" that protects the interest of both Parties, and much less as a balance struck between the interests of transparency and the interests of confidentiality.
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15. The Tribunals that originally examined the issue of transparency in ICSID proceedings had two options. The first was to determine that, in the absence of explicit rules on transparency, every proceeding would be confidential, unless otherwise provided. The other option was to develop a standard requiring the weighing of the two types of interests, that is, the interests of confidentiality and the interests of transparency. These Tribunals preferred the second option. In doing so, I understand them to have recognized the fundamental value that transparency has for these kinds of proceedings. As stated by the Tribunal in Becarra, "transparency in investment arbitration shall be encouraged as a means to promote good governance of States, the development of a well-grounded and coherent body of case law in international investment law and therewith legal certainty and confidence in the system of investment arbitration…”.4
16. This reasoning is, in my view, even more relevant today when disputes of this nature are under intense scrutiny by Society. Let me be clear, transparency does not mean that there is no right to protect certain information in particular circumstances. Parties must have the possibility to protect information that is confidential in nature, for example information where disclosure could give an advantage to a competitor or, information that qualifies as a trade secret. I am completely convinced that Tribunals can adopt mechanisms that protect such information while, at the same time, providing more transparency to the proceedings.
17. Society has a right to know – of course protecting at all times information that is genuinely considered to be confidential –the actions of their governments and investors, as well as the manner in which they are defended. For this reason, transparency can provide legitimacy both to the claims of the investor as well as to the defence of the State. Transparency generates certainty, ignorance panic. Transparency therefore can be a means to pave the way and facilitate a better development of these proceedings and to avoid that Society renders a judgement, in the dark, about these proceedings. For all of these reasons, I cannot join a Resolution that goes in the opposite direction.
Transparency in investment and trade disputes is still very uneven. Sometimes you get a lot; sometimes you don't. In my view, the dissenter says some very sensible things about why more transparency is better.
