MEMO CLAIMANT - ALVAREZ - FDI Moot

87. Furthermore, as established in international investment arbitration court practice:
„(…) transparency considerations shall not justify actions that
exacerbate the dispute or otherwise compromise the integrity of the
arbitration proceedings.‟ 79
Claimant thus argues that Respondent‟s actions resulted in aggravation of the dispute
and actually deteriorated Claimant‟s position in the dispute.
1. Respondent failed to preserve the confidentiality of the report
88. The report, excerpts of which were posted by the leading Sylvanian newspaper 80 , was
confidential under Sylvanian domestic law. It is a generally acknowledged principle
that information, which are protected under legal privilege, shall not be disclosed. 81
Therefore Claimant contends that Respondent by a gross negligence failed to fulfill its
domestic confidentiality obligations.
89. Sylvanian Government as a drawer of the report in question, by all means should have
not allowed the leak, particularly keeping in mind the fact that FPS and its personnel
provided testimony for the report, thereby delivering statements that were detrimental
for Claimant‟s position in the proceedings.
90. Furthermore, argument of acting in the public interest does not merit taking into
account in the present dispute. It has been indicated that transparency considerations
may not prevail over the protection of information which is privileged or otherwise
protected from disclosure under a Party‟s domestic law. 82
91. The leak actually presented FPS to the public opinion as the subject solely responsible
for the accident, began adverse publicity against Claimant (i.e. as one of the motives
78 Occidental, Decision on provisional measures, §96, City Oriente, §55., Burlington, §61-68.
79 Giovanna Beccara, §72.
80 Facts, §9.
81 MISTELIS, p. 182
82 Giovanna Beccara, §72.
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