## Facts

- A foreign investor’s Tanzanian water-services venture operated through City Water Services Ltd. under agreements with the Dar es Salaam Water and Sewerage Authority (DAWASA).
- After 2005 events involving State/DAWASA takeover measures and removal of management, the investor alleged treaty breaches under the U.K.–Tanzania BIT and sought damages.
- The investor commenced ICSID arbitration in 2005; the tribunal issued earlier procedural orders on evidence preservation and document production.
- In 2006, the investor alleged the State had disclosed tribunal orders and arbitration-related information to third parties and that materials appeared online.
- The investor requested an undertaking that its memorial and accompanying documents be treated as confidential; the State refused a general undertaking but accepted interim confidentiality pending a ruling.
- The investor sought provisional measures under ICSID Convention Article 47 to prevent further public disclosure of arbitration materials.

## Issues

1. Whether the tribunal had authority under ICSID Convention Article 47 to recommend provisional measures regulating confidentiality and publicity in relation to arbitration documents and information.
2. How to balance public transparency interests in an investor–State dispute concerning public water services against the need to protect the integrity and fairness of the proceedings.
3. Whether the alleged past disclosures and risk of future disclosures met the necessity and urgency requirements for provisional measures.

## Decision

- The tribunal held it had authority under Article 47 to recommend provisional measures to preserve the parties’ rights, including procedural rights and the integrity of the arbitration.
- The tribunal found there is no blanket rule of absolute confidentiality in ICSID arbitration, while recognizing a baseline privacy of the process.
- The tribunal declined to impose a comprehensive secrecy regime over the arbitration’s existence or all materials.
- The tribunal nevertheless recommended targeted limits and safeguards on dissemination of certain arbitration documents and information to reduce risk of distortion, witness influence, or circumvention of tribunal directions.
- The tribunal allowed disclosure of basic, accurate information about the existence and general subject matter of the case, while treating official public documents as not subject to broad confidentiality restrictions.

## Legal Principles

- Article 47 provisional measures may protect procedural rights and the proper administration of justice, not only substantive rights.
- ICSID arbitration is not inherently secret and does not impose an automatic, comprehensive party duty of confidentiality absent specific direction.
- Tribunals may regulate disclosure when needed to prevent material prejudice to a party or impairment of the fair and orderly conduct of the arbitration.
- Provisional measures require necessity and urgency; where risks can be addressed without a blanket ban, targeted measures are appropriate.
- Transparency may be appropriate in treaty-based disputes with public interest, but it may be limited to prevent misleading publicity and external interference with the evidentiary process.

## Conclusion

The tribunal adopted a middle-ground confidentiality regime: it confirmed power to issue provisional measures controlling publicity when necessary to protect procedural integrity, declined to mandate absolute confidentiality, and imposed tailored restrictions on dissemination of arbitration materials while permitting limited, accurate public disclosure about the case.


Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3 (Sept. 29, 2006)