Originally from World Arbitration And Mediation Review (WAMR)

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THE PROCEDURAL INTEGRITY OF

PROCEEDINGS DEEMED PRIMORDIAL
DESPITE THE GENERAL TREND TOWARDS
GREATER TRANSPARENCY: BIWATER
GAUFF V. UNITED REPUBLIC OF TANZANIA,
PROCEDURAL ORDER NUMBER THREE1

On August 2, 2005, Biwater Gauff (Biwater) filed a request for
arbitration with respect to a dispute with the United Republic of Tanzania
(Tanzania). The dispute arose out of a series of alleged breaches by
Tanzania of its obligations under both domestic and international law
concerning foreign investments made by Biwater. Because the case
involved a contract with Biwater to provide water to a developing country,
Tanzania, the case drew considerable public discussion and activism by nongovernmental
organizations before the arbitration tribunal was selected.2

Biwater claimed that the publicity resulted in adverse actions being taken by
third parties against the interests of Biwater.3 In response, Biwater
requested that the Tribunal order provisional measures to ensure greater
confidentiality.

Tanzania argued that the Tribunal should push for greater transparency
because the issues in the case transcended the national scope and dealt with
larger questions of international development policy and because Tanzania
has an obligation to its citizens to make information about the case available
to the greatest extent practicable.

The Tribunal was faced with the task of balancing two competing
interests between the need for transparency in treaty proceedings and the
need to protect the procedural integrity of the arbitration.4 Given the media
campaign that had been waged, the Tribunal was satisfied that a sufficient
risk of harm or prejudice existed to warrant some form of control.5 In so
doing, the Tribunal disagreed with Tanzania’s position that actual harm
must be manifested before the Tribunal may take any measures.6 The