THE DUTY OF DISCLOSURE AS A BASIS FOR FAIR INVESTMENT ARBITRATION PROCEEDINGS

Abstract

The duty of disclosure is a fundamental precondition of fair arbitration proceedings. Though the importance of this duty in investment arbitration is obvious, its content and application pose various questions which require complex analysis. The lack of common binding sources of the duty of disclosure leads to practical difficulties and may curb the effectiveness of arbitration proceedings and lead to successful challenges of arbitral decisions. The question arises as to which relevant information and circumstances arbitrators shall disclose to the parties and how. This research aims to reveal the standards for arbitrators to reveal information which may be relevant for ensuring the fairness of arbitration proceedings and how this duty should be exercised. The authors analyze the relevant rules on the duty of disclosure in the rules of arbitration and case law. Special attention is drawn to the protection of the right to a fair trial. The authors find that though there are no generally accepted standards of the exercise of the duty of disclosure in investment arbitration proceedings, arbitrators shall reveal to the parties all information which may be relevant to assess their impartiality. Furthermore, the exercise of this duty is continuous during arbitration proceedings. The latest development of the case law of the European Court on Human Rights in the Beg S.p.a. v. Italy case reveals the practical problems of the application of Article 6 of the European Convention on Human Rights in arbitration proceedings, and also highlights the importance of the proper exercise of the duty of disclosure in arbitration proceedings.