193 / 522
respondent State, under the law of the respondent State, and in the case
of other information, under any law or rules determined by the arbitral
tribunal to be applicable to the disclosure of such information; or infor-
mation the disclosure of which would impede law enforcement” as
confidential or protected information. This article is regarded as bal-
ance mechanism within the Rules where a certain amount of confi-
dence is given to the states with respect of the confidential information.
The Working Group further discussed that in case Parties agree on
confidentiality of a document, such Parties should have the discretion
to withhold such documents rather than the arbitral tribunal. Pursuant
to Article 7(4) of the Rules any disputing party, non-disputing party to
the treaty or third person is permitted to withdraw a document which
is presented by him in case an arbitral tribunal determines that infor-
mation shall not be redacted from a document or prevented to be made
available to the public.
Repository
In order for the mechanism projected by the Rules to work there
needs to be a repository. The information shall be published by a repos-
itory which is the Secretary-General of the United Nations or an insti-
tution named by UNCITRAL.
The discretion of a repository is limited in the Rules through
Article 2 which provides that only the notice of arbitration shall be
communicated with the repository which is regulated under Article 8
and further by providing that the arbitral tribunal will communicate the
information and requests for documents to be made through the arbi-
tral tribunal. The repository is responsible to inform the public regard-
ing the name of the disputing parties and the economic sector involved.
Conclusion
The Rules which came into force on April 1, 2014 is an important
step taken in investor state arbitration. Even though there have been
some criticism from some NGOs, it is seen likely that many states will
not opt out the Rules for the treaties concluded on or after April 1,
2014. It will be experienced through time whether states will prefer to
opt in the Rules for the treaties concluded prior to April 1, 2014. The
ARBITRATION LAW
177