Abstract

This paper explores how confidentiality undermines international commercial arbitration (ICA) when viewed from an African perspective, especially in light of the obligation to regulate multinational enterprises. The legal framework surrounding confidentiality is uncertain and unsettled at the international level. It is even more uncertain to determine if the requirements applicable to multinational enterprises under the United Nations Guidelines on Business and Human rights apply in International Commercial Arbitration in countries with a weak commitment to the rule of law. The different approaches taken by several jurisdictions regarding confidentiality hinder the legitimacy of ICA because parties can provide for a confidential regime even in cases where publicity may be required. Therefore, this paper calls for the adoption of an international regime precluding confidentiality in cases that address cross-cutting issues that in turn impact the legitimacy of ICA. This preclusion will apply to proceedings involving issues of competition law, corruption, or state-owned entities.

Keywords: Confidentiality; Delta Case; Justification; Commercial Arbitration; ICA;