Investor Presentaiton
123
1. Access to documents
The United States and Canada have been the most inclined to
include in their IIAs requirements that certain documents be made
public. For instance, Article 29 of the BIT between the United States
and Uruguay (2005) requires the respondent to transmit certain
documents to the investor's home State and to make them available
to the public, including the notice of arbitration, memorials,
transcripts of hearings and arbitral awards. These rules do not
require the parties to make public any negotiations about the
settlement of the dispute, nor do they interfere with the
confidentiality of the tribunal's deliberations.
Even States that provide for ready access to documents limit the
obligation to disclose sensitive information belonging to the State,
to the investor, or to third parties. Thus, the Canada Czech
Republic BIT (2009), in its general exceptions provision, provides:
"[n]othing in this Agreement shall be construed to require a
Contracting Party to furnish or allow access to information
the disclosure of which [...] would be contrary to the
Contracting Party's law protecting Cabinet confidences,
personal privacy or the confidentiality of the financial affairs
and accounts of individual customers of financial
institutions."
The same agreement specifies that tribunals shall establish
procedures to ensure the protection of confidential information of
either Party, but with the caveat that, in the event of a conflict
between a tribunal's confidentiality order and a State's access-to-
information laws, the latter should prevail (Annex B.I).
UNCTAD Series on International Investment Agreements IIView entire presentation