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Part IV Special Topics in the Mediation of Commercial and Investment Disputes, 17 The Confidentiality and Transparency Debate in Commercial and Investment Mediation

Chester Brown, Phoebe Winch

From: Mediation in International Commercial and Investment Disputes

Edited By: Catharine Titi, Katia Fach Gómez

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 October 2020

Investor — Transparency — Confidentiality — Arbitration — Mediation

This chapter explores the tension between confidentiality and transparency in commercial and investment mediation. The importance of transparency in the context of investment mediation is arguably far greater than it is in the context of commercial mediation, which is due to the nature of investor-state proceedings which involve the public interest. The chapter outlines the genesis of this debate and explains how it has unfolded in the context of investment treaty arbitration, including the recent mechanisms introduced which have led to an improvement in transparency levels. The chapter then traces the debate as it has developed in the context of commercial and investment mediation. Consideration is given to the protection afforded to confidentiality in mediation by national regimes, institutional rules and international investment agreements, including the EU—Canada Comprehensive Economic and Trade Agreement and the recently concluded treaties between the EU and Vietnam and Singapore. This discussion notes that, whilst similar considerations apply to arbitration and mediation, there has been a greater preservation of confidentiality in mediation than in arbitral proceedings. The chapter ultimately justifies this heightened protection and advocates its increased use in settling international disputes, in particular in investor-state disputes.

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